What Sonia Sotomayor Means to Cultural Production and Intellectual Property

Last week Barack Obama nominated Sonia Sotomayor, a federal judge on the U.S. Court of Appeals for the Second Circuit, to The U.S. Supreme Court. Although unfortunate that Mr. Obama draped such a momentous event in the pernicious cloak of identity politics, a Sotomayor confirmation could bring dramatic changes to the reading and application of cyberlaw and intellectual property law.

Although her early career as a corporate lawyer prosecuting trademark infringers for Fendi would lead one to believe she is pro property and copyright owners, and thus pro-original author, at least one of her most important copyright rulings shows an inclination to read into federal statutes in complete disregard of the literalness of the text, and at the expense of property owners and original authors’ rights. This is a concern not only for the intellectual property and cyberlaw conflicts she is sure to face if confirmed to the Supreme Court, but also because this tendency to “read into” texts may very well rear its head in other legal issues of grave concern. Let’s take a look into one case the clearly demonstrates this concern.

In New York Times Co. vs. Tasini, print publishers, without freelance authors’consent, agreed with electronic publishers to place copies of the freelancers’ articles along with all other articles from the periodicals in which the freelancers’ work appeared into three electronic databases. Whether written by a freelancer or staff member, each article was presented to, and retrievable by, the user in isolation, clear of the context the original print publication presented.

Sotomayor, while still a district court judge, ruled that the print publishers had the right to license freelance authors’ work to the electronic publishers, without their consent, under the presumption that the Copyright Act granted such rights. In our view, the U.S. Supreme Court correctly upheld the Second Circuit Court of Appeals’ reversal of her decision, holding that the publishers infringed the authors’ copyrights by reproducing and distributing the articles in a manner not authorized by the authors and not privileged by §201(c) of the Copyright Act. The Supreme Court further concluded that the print publishers infringed the authors’ copyrights by authorizing the electronic publishers to place the articles in the databases and by aiding the electronic publishers in that endeavor.

As an example of how Sotomayor may “read into” statutory texts, we look at Sec. 201 of the Copyright Act. It states:

“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” 17 U.S.C. § 201(c). [bold text added]

Although her opinion in Tasini may shows a predilection for “reading into” texts, her other, generally correct, rulings have generally sided with entities seeking to protect their intellectual property. As a district judge, she sided in separate 1997 cases with the holders of the “Three Stooges” licenses, and the producers of the “Seinfeld” TV show [Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998)], who were challenging what they considered unlawful infringement of their property. In another intellectual property case, this one concerning domain names and trademark law, Sotomayor, this time as an appellate judge, ruled against Mattel Inc., citing that the domain names “”Barbie-club.com” and “captainbarbie.com” were not cybersquatting.

Much has been writen recently about Sotomayor potentially being the first Supreme Court justice with cyberlaw and intellectual experience. These few cases, albeit lukewarm at best, give us a preview of her future intellectual property decisions. What is left for analysis is how exactly Sotomayor will rule on pressing legal issues concerning contemporary artists today, such as the Shepard Fairey vs. Associated Press case, and the Patrick Cariou vs. Richard Prince case. More to the point, Sotomayor may very well be the justice who can help bring some life back in to the gutted Visual Artists Rights Act (granting living U.S. artists moral rights). Will Sotomayor make it easier for copiers and “appropriationists” to take the creative properties of artists for their own illicit commercial gain, or will she prove to be the ardent property rights defender as she was Fendi, protecting and enforcing the property rights granted to original authors under the U.S. Constitution?

The initial reading of Sotomayor’s impact bifurcates into these options: if Sotomayor “reads into” texts and interprets them according to her own personal preferances and historical background, as many originalists fear she will, then we are sorry to say that it is most likely that she will allow her own subjective and personal feelings erode the letter of the law, and thus erroneously diminish intellectual property rights for intellectual property right owners. However, if Sotomayor proves her analytical and rational prowess, beyond the politically correct identification that Mr. Obama has blessed upon her, and engages with literal statutory interpretation as mandated by the framers of the U.S. Constitution, then it is quite possible Sotomayor may bring a breath of fresh air to a the cesspool intellectual property law has become.

In a crippled global economy, we champion a justice who would not bow down to emotional or political interests, but rather look firmly to Constitutional and statutory provisions which, quite simply, place great emphasis on property ownership and the rights that it engenders. A Supreme Court justice of the 21st Century, and with intellectual property and cyberlaw experience, would not expand “fair use” to unreasonable limits, creating empires for those adept at Googling and cutting-pasting off the creative assets of others. A Supreme Court justice with professed Ivy League intellectual acuity would not fix her glance back on 19th Century romanticist definitions of art and therefore espouse a categorical differentiation between fine art and commerce. To nurture such an interpretation would only perpetuate the continuing sense of entitlement by some artists, writers, and scholars, to the property of others.

Tags: barack obama, Copyright, copyright act, intellectual property, ny times v. tasini, sonia sotomayor, supreme court nominations, tasini, Trademark, u.s. supreme court