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When a treatise writer tries to reconfigure copyright law to benefit a client.

Check out paragraphs 15 through 17 of David Nimmer’s declaration on behalf of Warner Brothers in the Mike Tyson tattoo case. Nimmer admits in paragraph 15 that he “used to” think tattoos were eligible for copyright protection and “even posited one line to that effect in a footnote” in his copyright treatise. But now he is representing Warner Brothers, he realizes he was wrong! He even said in a law review article that human bodies are not subject to copyright protection! See paragraph 16! Of course, whoops, that was not in the context of tattoos, but no matter. Having given the matter “intense consideration,” it turns out that copyright law is configured exactly as his client needs it to be, and see paragraph 25, that is what Congress intended all along!

Nimmer holds himself out as the nation’s authority on copyright law, and he’s provided a pretty clear road map here about how instrumental and client driven his legal analysis is. I’ve covered this territory before.oes

UPDATE: Rarely indeed does anybody theorize that I am “too polite”! From C.E Petit at Scrivener’s Error:

“Here is yet another example of why I do not use the Nimmer treatise on copyright. As Professor Bartow notes, the current Nimmer has (yet again) changed his “authoritative” opinion to match his clients’ immediate interests in a live dispute — and one should remember that neither the current Nimmer nor his father (who originated the treatise) represent actual creators, but only exploiters and middlemen. There’s nothing wrong with practitioners being involved in writing treatises; many treatises could definitely do with some input from the “real world” (I’m thinking, in particular, of the notoriously-disjointed-from-reality old chestnut Wigmore on Evidence). There’s quite a bit wrong, though, when the practitioner-slash-treatise-author-slash-authority changes his/her opinion not of what the law should be, but of what the law is, to match his/her own clients’ immediate preferences in a live dispute.

“Perhaps Professor Bartow herself is too polite to note it; perhaps she is a bit too removed from practice to have noticed it; but I found yet another ridiculous aspect of Professor Nimmer’s change of opinion: It’s in an improper document that the court should never have allowed to be filed. An expert opinion may only “assist the trier of fact to understand the evidence or to determine a fact in issue” (Fed. R. Evid 702, emphasis added). Arguments about the law are for the lawyers and to the judge only; if one wishes to bring in material from a “legal expert,” the proper method to do so is via citation to legal authority. There’s nothing wrong with that citation being to a yet-to-be-published work — so long as one provides copies to both the judge and the other side — but putting an interpretation of legal doctrine in as an “expert opinion” is flat wrong. Another big LA law firm tried this BS in the Ellison matter to no avail. You’d think they’d learn that if they’re going to tell the judge what the law is, they should do so in the context of telling the judge what the law is.”

UPDATE 2: But dog help us all, in some quarters this only makes the Nimmer Treatise more authoritative; see Gawker post by Lauri Apple:

“Meanwhile, copyright scholar extraordinaire David Nimmer, who is an expert witness for Warner Brothers in the Tyson tattoo suit, says human bodies can’t be protected by copyright law even if you change them a whole lot. And he’s highly regarded as “the man” about copyright things, so there you go.”