By Jessica Dye
NEW YORK, Sept 24 (Reuters) - A judge has tossed a lawsuit
brought by a man who claimed his former attorney committed
copyright infringement by using a complaint the client said he
had authored five years earlier.
Chief U.S. District Judge Carol Amon held that the attorney,
Norman Kaplan, could not be held liable by client Bernard Gelb
for copyright infringement because he had an implied license to
use the document.
Gelb sued Kaplan after the lawyer used a 2006 class action
complaint in an amended lawsuit for a group that had previously
included Gelb. Gelb, who was no longer his client, said he had
copyright for the 2006 complaint.
Amon declined to address what she described as the "novel
question" of whether or not legal documents could be
But like an author submitting a manuscript to a publisher,
Amon wrote, "a client who assists in the preparation of a legal
document during the course of a litigation, and hands that
document over to his attorney for filing, impliedly gives his
attorney license to use that document throughout the course of
Kaplan, a solo practitioner in Long Island, said it was the
first decision in the country he knew of to address whether an
attorney receives an implied license to use a client's legal
The case dates back to 2006, when Gelb and the company he
managed, Unclaimed Property Recovery Service Inc, initiated a
class action against Chase Manhattan Bank NA over alleged
racketeering and deficient record-keeping involving municipal
bonds. Kaplan represented the plaintiffs in the lawsuit,
including Gelb. The Brooklyn federal court dismissed the class
action as untimely in 2007.
Gelb appealed but then apparently had a falling out with
Kaplan, according to the ruling. Kaplan advised Gelb to find new
counsel but continued to represent the other plaintiffs. The 2nd
Circuit Court of Appeals reversed the 2007 dismissal and
remanded the case to district court. Kaplan filed a second
complaint, which was an amended version of the first complaint.
In 2011, Gelb sued Kaplan for copyright infringement when he
filed the second complaint and accompanying exhibits, claiming
that he, not Kaplan, had authored the first complaint.
Kaplan moved to dismiss, arguing that the complaint and
exhibits contained only facts, which did not qualify for
While the court did not reach that issue, Amon concluded
that Kaplan "had an implied license" to use and file the second
A lawyer for Gelb, Paul Batista, said Gelb is weighing an
The case is Unclaimed Property Recovery Service Inc v.
Norman Kaplan, U.S. District Court for the Eastern District of
New York, no. 11-1799
For UPRS and Gelb: Adam Engel and Paul Batista.
For Kaplan: Pro se.
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