Posner On Copyright: 10 Cases To Remember

When Judge Richard Allen Posner abruptly retired from the Seventh Circuit Court of Appeals last month, we were so caught off guard that it took a few weeks to get our tribute machine up and running. Why a tribute to Posner on the Trademark and Copyright Law Blog? Well, among the many legal areas profoundly influenced by this prolific jurist and author (the list of areas he did not affect would almost certainly be shorter), we think copyright probably rates in the top ten. Judge Posner co-penned influential articles on copyright law, authored dozens of opinions on copyright issues and, even in cases not involving copyright, frequently employed copyright analogies (far more often than his famous cat analogies).

As a belated send-off, we've gathered here what we think are the ten most interesting copyright cases Judge Posner authored.

Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983). Plaintiff Jorie Gracen participated in a painting contest to become the featured artist for a line of officially licensed collector's plates based on MGM's Wizard of Oz movie. Gracen won the contest with her painting of Dorothy, which was based on her recollection of the movie and on a production still of Judy Garland. However, Gracen and the defendant could not agree to terms, so the defendant picked another artist to paint its plates. When the plates were issued, they included what was not disputed to be a "piratical copy" of Gracen's painting. Gracen filed suit, and the defendant counterclaimed, alleging that Gracen had violated the copyrights in the movie and in the production stills by exhibiting her painting to others in furtherance of her artistic career. Judge Posner, writing for the Court, agreed with the lower court that Gracen's painting lacked sufficient originality to be an independently copyrightable derivative work. However, the Court vacated the lower court's judgment that Gracen's exhibition of her own painting was an infringement, because there was a genuine issue of material fact as to whether she had an implied license. What did the defendant think she was going to do with her painting, Posner asked, "keep it in a closet 'till MGM's copyright expired?"

Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167 (7th Cir. 1997). In the mid-90's defendant GMA came out with a line of bean-bag animals to compete with the incredibly popular Beanie Babies marketed by Ty, Inc. A district judge issued an injunction against the continued sale of GMA's "Preston the Pig" and "Louie the Cow" bean-bags, on the grounds that they were copied from Ty's "Squealer" and "Daisy" products. GMA did not contest the injunction as to Louie the Cow, but appealed the order as to Preston the Pig. GMA argued that Preston was simply copied from the public domain, and besides that GMA's designers did not have access to Ty's Squealer, which had been snapped up by collectors and was very hard to obtain. Judge Posner, writing for the Court, included a photograph of a "real pig" in the appendix and noted that Preston and Squealer resembled each other in ways that did not resemble pigs in the public domain (and "anyone even slightly familiar with stuffed animals knows that there are many lifelike stuffed pigs on the market"). As to GMA's claim of no access, Judge Posner acknowledged that Ty's Squealer was indeed "sometimes hard to find (though not this Christmas, in Chicago at any...

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