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Blogging Lawyer's Copyright Claim Against Ethics Board Fails

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By William Peacock, Esq. on October 20, 2014 12:27 PM

This is one of the more absurd copyright claims, and absurd responses to a disciplinary proceeding, that you'll ever see.

Joanne Denison, an attorney, has a blog about the trials and tribulations of Mary Sykes, a 90-year-old "probate victim." The blog contains a number of allegations of corruption in the Probate Court of Cook County, Illinois, along with accusations of elder abuse and physical and mental harm inflicted upon Sykes.

The Illinois Attorney Registration and Disciplinary Commission (IARDC) filed a complaint against Denison listing a handful of alleged ethics violations, most of which regarded her statements on her blog. In the complaint, which was published on the IARDC's website, 15 paragraphs from her blog were quoted. Denison's response? To sue, alleging a copyright violation.

This Is Definitely Going to Fail

The district court kicked Denison's claims using the four fair use factors from the Copyright Act: "(1) the purpose and character of the use ...; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

The court actually went through all four factors exhaustively, even though this seemed like an obvious case from the outset. Unsurprisingly, Denison's claims failed, with the court paying particularly close attention to the first factor: purpose and character. Denison's use was political speech, while the IARDC's use was an attorney disciplinary case.

The court also noted that the legislative history "explicitly listed 'reproduction of a work in legislative or judicial proceedings or reports' as an example of a fair use."

Not the 1st Time Someone Has Tried This

In case you were curious, this isn't a novel idea: The Trademark and Copyright Blog lists 13 similar cases where parties have tried to use copyrights as a means of keeping evidence out of court. Each time, it has failed.

The blog notes that there is one exception, however: when the copyrighted work was made specifically for litigation, then reused in subsequent cases in violation of the original terms.

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