Unclaimed Property Recovery Service Inc (UPRS) and Gelb, its principal, were among the plaintiffs in a class action, represented with other class members by Kaplan, an attorney. UPRS and Gelb alleged that Gelb had conducted the research underpinning the class claim, drafted most of the pleadings and compiled the exhibits. After UPRS and Gelb fell out with Kaplan, they claimed that Kaplan had violated their copyright in the litigation materials, which had been amended by Kaplan and used in pursuing the claim on behalf of the other plaintiffs (UPRS and Gelb having opted not to participate further in the proceedings): Unclaimed Property Recovery Service Inc v Kaplan (2d Cir, 20 August 2013).
Katzmann J of the 2d Circuit affirmed the ruling of the court below that authorising a party to use a document in court 'necessarily conveys, not only to the authorized party but to all and future attorneys and to the court, an irrevocable authorization to use the document in the litigation thereafter.' The holder of copyright in materials for use in litigation (assuming there is copyright in them, a point not actually decided) knows -- or ought to know -- that once authority is granted to use those materials, it cannot be revoked, especially where the material is the foundation of the underlying complaint. To hold otherwise would 'encourage sharp litigation practices, undermine the attorney-client relationship, and limit the ... court's ability to manage its cases', especially if the copyright holder is an attorney with a pecuniary interest of his or her own in the litigation (and one potentially at odds with the interests of the parties under representation).
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