The Grapes of Roth

My latest article, “The Grapes of Roth,” has just come out in print in the Washington Law Review. In it, I argue that copyright law passed through at least three important phases over the course of the last century, in which judges struggled in different ways with the process of how to determine whether two works are infringing. This periodization of copyright decision-making is, I believe, insufficiently appreciated; copyright lawyers, scholars, and students tend to read cases from any era as going about the decision-making process in the same way. The goal of the article is to focus more attention on how decision-making has varied over time, and to at least begin the discussion of which era’s procedure is closer to optimal.

The title is a reference to the old copyright chestnut Roth Greeting Cards v. United Card Co., in which the majority concluded that infringement was the right call based on the shared “total concept and feel” of the plaintiff’s and defendant’s greeting cards. The “total concept and feel” standard from Roth is one that copyright lawyers love to hate. The phrase is nearly meaningless: concepts are explicitly excluded from protection under 17 U.S.C. § 102(b), and copyrighted works are distinct from any physical embodiment, meaning they have no “feel.” The influential Nimmer treatise has for decades reproached the standard as “invit[ing] an abdication of analysis.”

So why is it so popular? Judges seem to have no qualms about using it, no matter what the commentariat says. They have cited it regularly as the standard for infringement in cases involving non-identical works from the 1980s to the present day. Indeed, it has found its way into jury instructions: juries are commonly told, without further elaboration, that two works are infringing if one was copied from the other and they share the same “total concept and feel.” The answer to this puzzle, I argue, sheds light on the transition from the first phase to the second, and reveals the trap sprung (or the “grapes” pressed) in the third.

Over the next several days I’m going to serialize the article here. I’ll cover in somewhat less detail (but with more images!) the three historical phases I identify, and then wrap up with a concluding post on whether those phases are limited to copyright law.

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Remembering Justice David T. Prosser, Jr.

David T. Prosser, Jr., a prominent figure in Wisconsin for the last forty-five years, held many significant positions during his distinguished career of public service: Wisconsin Supreme Court Justice, Speaker of the Wisconsin Assembly, Commissioner of the Wisconsin Tax Appeals Commission, and Outagamie County District Attorney, among others. But after he passed away this month at the age of 81, those who gathered to celebrate his life remembered him not only as a hard worker and skilled jurist but also—and perhaps more importantly—as a trusted mentor, loyal friend, and devoted family member.

In my personal experience, Justice Prosser certainly deserved those accolades. I served as his law clerk during the Wisconsin Supreme Court’s 2004-2005 term. That year we worked elbow to elbow, and I observed firsthand his skill as a writer, his work ethic, and his wry wit. Upon arriving at the state capitol in early August 2004, fresh out of Marquette Law School, I was as nervous as could be. Justice Prosser immediately put me at ease, and although I made many mistakes, he never lost patience with me. That year on the Court was perhaps the greatest experience of my professional career and I often reflect on those times. I certainly would not be where I am today without him.

As with many of those whose lives he touched, Justice Prosser always had my best interests in mind. He kept in touch with me and followed my career even long after I worked for him. A few years after my clerkship had ended, I needed a letter of recommendation in a short time frame during a busy period at the court. He agreed to write on my behalf. After apologizing for the quick turnaround, I asked when he might be able to get it in the mail—to which he answered, “we’ll see.” The next evening, there was a knock at my door. There on my doorstep was Justice Prosser, with the letter in hand. He had not only written it in less than a day, but also driven two hours each way to ensure it arrived on time. I invited him in, but he declined, saying, “I’m sure you have better things to do than have dinner with me.” His humility was one of his defining features. My experience was not unique. Those gathered at his funeral told many stories of a similar nature, explaining how Justice Prosser dropped everything to help a friend or family member in need.

Justice Prosser was a great friend of Marquette Law School, often appearing at events, lectures, dinners, and the like. Many of his clerks were Marquette lawyers, and they went on to successful careers as judges and lawyers in a variety of practice settings. He was featured in the Summer 2017 edition of Marquette Lawyer magazine, highlighting how he enjoyed hiring law clerks from Marquette and how much they helped him.

The previous year, in an interview with the Wisconsin State Bar on the occasion of his retirement from the Wisconsin Supreme Court in 2016, Justice Prosser said he wanted to be remembered as an important decision-maker, an independent thinker, and a storyteller. He was certainly all those things, but also much more to those of us who had the good fortune to know him. As we continue our journeys without him, we honor the person he was and the life he led. Rest in peace, Justice Prosser. You will be missed.

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