ArticlesVolume 42, No. 2 (2019)

The ‘Art’ of Copyright: A Practitioner’s Perspective

Abstract

This is the 31st Manges lecture, and I am honored to be the first private practitioner to deliver it. Copyright law is rich in its constitutional and legislative heritage, in its doctrinal underpinnings, and in its interplay with other important legal and social regimes and norms.

This complex heritage has been honored—and its contours provocatively discussed—by prior Manges lecturers spanning the federal judiciary, members of Congress, three Registers of Copyright, numerous scholars in the field—including Bob Gorman, and international copyright experts, among others.

An important dimension of this copyright matrix not yet explored in this setting is the central role practicing attorneys have played in the continuing evolution of copyright law.

Whereas the pace of legislative change in copyright law is glacial, its evolution via court decision and evolving commercial practice is continual. And it is the practicing bar: who are confronted with myriad real world, time sensitive applications of this body of law; who create the factual records and who brief and argue the legal issues that undergird judicial decisions in the field; who negotiate complex license agreements in reliance on understandings of copyright law with broad consequences for the dissemination of works of creative expression; and who, like Horace Manges, represent the spectrum of affected parties and industries in the halls of Congress, before the Copyright Office, Justice Department, Office of the Solicitor General, and other relevant federal agencies on all matters relating to copyright.

Not limited to copyright, those of us in private practice tend to take our cases— and usually our clients—as we find them. In my own experience, applied to the copyright sphere, this intellectual flexibility has had enormous advantages. I say this because, to be effective counselors and advocates, copyright practitioners need fully to appreciate the balancing act that is copyright law.

*This is a transcript of the 31st Annual Horace S. Manges Lecture delivered by R. Bruce Rich on March 26, 2018.  Mr. Rich is a senior partner at Weil, Gotshal & Manges LLP and currently co-heads the firm’s Intellectual Property/Media practice.