Mark Rose: The Authors and their Personalities that Shaped Copyright Law

“Great cases like hard cases make bad law” said Justice Holmes at the turn of the twentieth century. By contrast in copyright law, complex personalities and facts seem to allow the law to work itself pure. That seems to be the principal takeaway from Mark Rose’s illuminating new book Authors in Court: Scenes from the Theater of Copyright.

A literary historian of copyright whose prior book is considered a seminal contribution to the field, Rose sets out in Authors in Court to tell the story behind several of copyright’s leading cases through an investigation of the personalities that prompted the dispute and its eventual resolution. The book’s main chapters each tell the story of a major copyright case that is today part of the copyright canon: Pope v. Curll, Stowe v. Thomas, Burrow-Giles v. Sarony, Nichols v. Universal, Salinger v. Random House, and Rogers v. Koons. Some of these cases (e.g., Nichols, Koons) continue to be cited by courts to this day.

Rich in detail, and lucidly written, each chapter showcases what the idea of “authorship” meant to the protagonists in each dispute and the range of values and influences that motivated the construct. To some, it involved the maintenance and policing of their public personae (e.g. Pope), to others it involved balancing the conflation of art and value (e.g. Sarony), and to yet others it involved melding authorship with narratives of honesty and authenticity. Rose does an excellent job of bringing to life the colorful personalities that initiated these famed copyright disputes.

What I found to be particularly interesting though, from a legal point of view, is how several of Rose's accounts shed light on the genesis of some of copyright’s well-known doctrines and principles that emanate from case-law. Consider Judge Learned Hand’s oft-quoted observation in the Nichols case, that in determining whether a defendant’s copying is of the expression (rather than the idea) in a play, “[n]obody has ever been able to fix that boundary, and nobody ever can.” While a part of the “abstractions test,” as it is today known in copyright jurisprudence, Hand’s statement is quite often taken to be a somewhat cynical observation about the malleability and contextual nature of the test. Rose’s story of Nichols suggests that Hand may have actually intended that statement as a response to what he was presented with in the case.

It turns out that in the case, the plaintiff’s lawyer—Moses Malevinsky—thought of himself as an expert on plagiarism involving dramatic works. He had written a book titled The Science of Playwriting in which he had attempted to develop an “algebraic formula” to assess whether a work had been improperly copied by another, i.e., whether the defendant had appropriated protectable components of the play. To complicate things further, Malevinsky apparently offered himself as his client’s own expert witness during the trial and through a junior colleague who examined him on the stand (for seven days!), offered testimony on behalf of the plaintiff (wherein he concluded that the defendant had indeed plagiarized the plaintiff’s work). He then resumed his role as counsel and proceeded to cross-examine the defendant’s expert. All of this was clearly part of the record on appeal, when it reached Hand on the Second Circuit.

Read against the backdrop of Malevinsky’s effort to offer a pseudo-scientific formula for plagiarism, Hand’s statement that “nobody ever can” fix the boundary between idea and expression in a play, seems less about courts’ ability to police the idea-expression dichotomy through standards and principles. Instead, it might be seen as a direct rebuttal of Malevinsky’s quest for a mathematical solution to the problem, which as Rose describes, Hand was totally unsympathetic to. This is just one of several places where Rose’s narrative illuminates a court’s statement by giving it context, and reminding us that courts are first and foremost, adjudicating actual disputes before developing general principles.

This last point leads me to another reason why I found Rose’s accounts of these cases to be fascinating. Overwhelmingly, the cases discussed in the book are held together by another common theme: they are each significant parts of the common law of copyright, the all-important body of judge-made law that collectively embodies several of modern copyright law’s core rules and principles. I have long been championing the common law of copyright, and advocating a greater role of the judiciary in the development of copyright doctrine and principles.

A core tenet of the common law method of rule development—whether in copyright law or elsewhere—is its greater tolerance for uncertainty in the law, be it in its preference for standards over rules, for the ex post over the ex ante, for incremental change over dramatic shifts, or for messy pluralism over foundational values. In each of its chapters, Rose’s book highlights—and in my view, celebrates—the willingness of courts to actively embrace this uncertainty, all in pragmatic recognition of the unique and complex nature of the arguments and personalities before them. Hand’s unwillingness to develop a test in Nichols is one example, but so is the Supreme Court’s refusal in Burrow-Giles to define or elaborate on the idea of an “ordinary production” photograph that might not qualify for protection which refused to develop a test to distinguish between the mechanical and artistic aspects of photography. The point is perhaps best captured in a quote from Judge Leval during his meeting with the opposing attorneys in the Salinger case, a quote which Rose begins the book with: “I think these matters are not to be decided by accountants based on percentages.”

Rose highlights this issue in the Afterword to the book, when he notes that “in copyright matters…the quest for objectivity and certainty is chimerical” and that the law can never do away with the need for “critical judgment.” Courts simply cannot hide behind facially objective rules in copyright cases. Copyright disputes invariably call for the deployment of the craft of judging, and for a complex engagement with both doctrine and the unique facts at hand. Rose’s stories in the book underscore that reality.