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Unclaimed Property Recovery Service, Inc. v. Kaplan

United States Court of Appeals, Second Circuit

August 20, 2013

UNCLAIMED PROPERTY RECOVERY SERVICE, INC., Bernard Gelb, Plaintiffs-Appellants,
v.
Norman Alan KAPLAN, Defendant-Appellee.

Argued: April 9, 2013.

Paul A. Batista, Paul Batista, P.C., New York, NY, for Plaintiffs-Appellants.

Norman Alan Kaplan, Great Neck, NY, pro se.

Before: LEVAL, KATZMANN, and HALL, Circuit Judges.

Page 143

KATZMANN, Circuit Judge:

This case concerns a novel attempt to use copyright law in furtherance of sharp litigation practices. Plaintiffs-Appellants Unclaimed Property Recovery Service, Inc. (" UPRS" ) and Bernard Gelb authorized the clients of Defendant-Appellee Attorney Norman Kaplan to file a legal complaint and exhibits that were written and compiled by Gelb and in which UPRS and Gelb claim copyright. The plaintiffs contend that Kaplan's subsequent amendment of the original documents and filing of amended pleadings infringed their copyrights. We hold that authorization granted to any litigating party to use such documents in a litigation constitutes an irrevocable authorization to all parties to the litigation, present and future, as well as to their attorneys and to the court, to use the documents in the litigation thereafter. Consequently, we affirm the district court's dismissal of the plaintiffs' copyright action.

BACKGROUND

A. Factual Background

This copyright infringement case arises out of the pleadings filed in the class action Frankel v. Cole, No. 06-cv-0439 (CBA)(RER) (E.D.N.Y.). UPRS and Gelb were among the named plaintiffs in that action, and Kaplan was the class action plaintiffs' attorney. Gelb and his company, UPRS— a business which locates unclaimed financial property and returns the property to its owners— allege that Gelb conducted the research underpinning the allegations in the class action complaint; located (and obtained Powers of Attorney fro) several class action plaintiffs, including Lillian Cowan, Jerome Frankel, and Barbara Brown; and hired Kaplan to represent the class. Gelb and UPRS further allege that Gelb, who is not an attorney, wrote the Amended Class Action Complaint (" First Complaint" ) and compiled the 305 pages of accompanying exhibits (" First Exhibits" ) and that Gelb and UPRS have copyrights in the documents.

Kaplan signed and filed the First Complaint and First Exhibits on behalf of the class action plaintiffs on May 26, 2006. The district court dismissed the class action as time-barred, and Kaplan appealed on behalf of all of the plaintiffs. See Frankel v. Cole, 313 Fed.Appx. 418, 419 (2d Cir.2009) (summary order). While the appeal was pending, Kaplan and Gelb had a falling out, and Kaplan informed Gelb that he would no longer represent Gelb and UPRS. Gelb and UPRS retained new attorneys. Cowan, Frankel, and Brown revoked the Powers of Attorney that they had conferred on Gelb and UPRS, and Kaplan remained their attorney of record.

New counsel for UPRS and Gelb then moved to withdraw the entirety of the pending appeal. This Court granted the motion with respect to Gelb and UPRS but denied the motion with respect to the other appellants. Shortly after we issued that decision, Gelb and UPRS obtained Certificates of Registration from the United States Register of Copyrights for the First Complaint and First Exhibits.

The appeal proceeded without UPRS and Gelb. We resolved it in favor of the class action plaintiffs, vacating the district court's dismissal of the case. See id. at 419-20. On remand, the district court granted Cowan, Frankel, and Brown leave to file a second amended complaint to address certain issues that we had raised in our summary order. Kaplan filed a Second Amended Class Action Complaint (" Second Complaint" ) and accompanying exhibits (" Second Exhibits" ). Significant portions of the Second Complaint and Second Exhibits were identical to portions of the First Complaint and First Exhibits in

Page 144

which Gelb and UPRS claimed copyright ...


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