Copying Expert’s Report from Another Case, to File It in Your Case, May Infringe Copyright

From Olson v. McBride Law Firm, PLLC, decided yesterday by Judge Naomi Reice Buchwald (S.D.N.Y.); seems correct to me:

In April 2022, plaintiff [Lindsay Olson] prepared an expert report titled “Multi-District Comparative Community Attitude Study” (the “Report”) at the request of two attorneys representing two criminal defendants charged in the “Oath Keepers” trial, which arose from charges against members of the Oath Keepers, an organized militia group that participated in the January 6, 2021 attack on the U.S. Capitol. The Report, prepared for use in support of motions to transfer venue, analyzed potential bias in the District of Columbia jury pool against defendants prosecuted for conduct arising from the January 6, 2021 attack and concluded that “the DC Community is saturated with potential jurors who harbor actual bias” against those defendants.

For a fee of $30,000, plaintiff licensed the Report to the two attorneys who commissioned it, authorizing its use in support of venue transfer motions. In April 2022, the attorneys filed the Report on the public docket in the “Oath Keepers” case in support of a motion to transfer venue.

Defendant Joseph D. McBride and his law firm, McBride Law Firm, PLLC, represented Richard Barnett, a defendant in a separate criminal case also arising from the January 6 Capitol attack. In September 2022, defendants obtained a copy of the Report, without plaintiff’s authorization and without paying a licensing fee, and filed it in its entirety in United States v. Barnett, No. 1:21-cr-00038, as an exhibit in support of a motion to transfer venue….

Olson sued for copyright infringement, and the court denied a motion to dismiss. The court held that plaintiff had plausibly alleged that defendant’s use was presumptively infringing:

Accepting [plaintiffs’] allegations as true, as the Court must at this stage, defendants took a copy of plaintiff’s copyrighted work and caused a new copy of it to be created, filed, and thereby made available to the public through ECF and PACER….

The court declined to dismiss the case on fair use grounds:

Although fair use can be resolved on a motion to dismiss where the defense is apparent from the face of the complaint, defendants have not shown that this case presents the rare circumstance in which the issue can be resolved without discovery. To the contrary, application of each factor reveals disputed factual questions that cannot be resolved at this stage.

[A.] Purpose and Character …

The first factor considers the purpose and character of the secondary use, including whether the use is transformative; that is, whether it “adds something new” and whether it is commercial in nature. Defendants argue that their use of the Report in the Barnett case was transformative because it served the “judicial function” rather than the Report’s “original purpose.” But plaintiff’s Complaint alleges the opposite: that the Report was created and licensed to persuade a court that criminal defendants charged in connection with the January 6 attack could not receive a fair trial in the District of Columbia and that venue should therefore be transferred elsewhere, and that defendants used it for precisely that purpose in support of their venue transfer motion in another January 6 prosecution.

Courts have recognized that using a work “for the precise reason it was created” cuts against a finding that the use was transformative. On the present record, where the parties dispute the very characterization of the Report’s “original purpose” and whether defendants’ use departed from it, the Court cannot resolve the issue of whether that use was transformative at this stage.

The commercial-use inquiry is similarly disputed…. Regardless of this Court’s skepticism of defendants’ position that they were not engaging in commercial exploitation, see Harper & Row Publishers, Inc. v. Nation Enters. (1985) (commercial use exists where “the user stands to profit from exploitation of the copyrighted material without paying the customary price”), this is a question not amenable to resolution in this case on a motion to dismiss.

The Court further notes that the very argument defendants advance here was addressed and rejected by … Olson v. Law Offices of Aubrey Webb, P.A., et al., No. 25-cv-24904 (S.D. Fla.) (Cecilia M. Altonaga, J.)….

[B.] Nature of the Copyrighted Work …

The degree of creativity reflected in the Report, as opposed to purely factual or informational content, is a question of fact not resolvable on the pleadings here.

[C.] Amount and Substantiality …

Where, as here, “the purpose of defendant’s use is precisely the same as that of third parties who license the material from the plaintiff,” courts have found that the question of whether the amount used was reasonable in relation to the purpose of the copying “must necessarily be answered in the negative.” Defendants here have not established on the pleadings that the wholesale reproduction of the Report was necessary as a matter of law, particularly where plaintiff alleges that defendants could have summarized or otherwise referred the court to the Report without reproducing it in full.

[D.] Market Effects …

The Court rejects defendants’ premise that a work’s appearance in one court file extinguishes the copyright owner’s market for licensing it elsewhere. If filing a copyrighted work on ECF in connection with a legal proceeding strips it of copyright protection for all future uses, the same would be true of a photograph, film script, book, article, or any other copyrighted work introduced as an exhibit in litigation. Nothing in the Copyright Act supports such a rule, and the Court declines to adopt one here….

[W]hether and to what extent defendants’ conduct, if replicated by similarly situated litigants, would harm plaintiff’s licensing market for the Report is a factual question dependent on evidence not currently before the Court, including the scope and durability of that market and the extent to which defendants’ use displaced a sale plaintiff otherwise would have made. In sum, defendants have not shown that fair use is clearly established on the face of the Complaint.

The court also rejected defendants’ argument that copyright liability would “undermine the public’s right of access to judicial proceedings and records”: “Defendants identify no authority holding that the [First Amendment] right of inspection [of court records] confers an independent right to reproduce and commercially exploit copyrighted material found within a court file, much less to immunize such reproduction from liability under copyright law…. [See also] Olson v. L. Offs. of Kira Anne W., 2026 WL 1459791 (D.D.C. May 25, 2026) [Beryl A. Howell, J.].”

And the court rejected defendants’ due process argument:

Defendants point to no authority, and the Court is aware of none, supporting the proposition that a criminal defendant’s right to mount a defense entitles his counsel to appropriate a third party’s copyrighted work product without payment. According to the Complaint, the Report was not evidence of Barnett’s guilt or innocence, but rather a commercially-licensed advocacy tool that defendants could have obtained through the same channel, a paid license, used by the attorneys who commissioned it. Defendants cite no authority recognizing a “litigation necessity” exception to the Copyright Act, and the Court declines to recognize one here….

James Henry Bartolomei, III represents Olson.