A lawyer copied “substantial portions” of a brief drafted by a co-defendant in a patent case, who was “the owner of a valid and registered copyright” for its brief.  Judge Hatter, sitting in the Central District of California, rejected the defendant’s claim of “fair use”.

First, the defendant “did not add new expression, meaning or message to Newegg’s draft brief. Sutton merely made minor and cosmetic changes to the draft brief. Further, Sutton’s brief and Newegg’s draft brief had the same intrinsic use – to persuade the Federal Circuit. Therefore, Sutton’s brief cannot be said to be a transformative use of the draft brief.”  Second, the original brief (as well as the defendant’s) “is a functional presentation of fact and law, and [therefore] … weighs slightly in favor of Sutton.”  As to the third factor, because the defendant “copied most, if not all, of the substantive portions of the draft brief, and that Sutton’s use of the draft brief was not transformative, this factor weighs heavily in favor of Newegg.  As to the fourth factor – the degree of harm to the potential market – Newegg failed to provide any evidence that it has ever licensed or sold its briefs, or that there is a market for the licensing or sale of its legal briefs.”  Nevertheless, considering all four factors, the defendant “did not meet his burden of establishing a prima facie case that his copying of Newegg’s draft brief was fair use.”

Finally, the court found that Federal Rule of Appellate Procedure 28(i) could not be used to justify the copying of the plaintiff’s brief. “Rule 28(i) specifically permits a party to either join in or adopt by reference a part of a co-party’s brief. By copying Newegg’s draft brief, Sutton went beyond joining the brief or incorporating parts of it by reference.”
Newegg, Inc. v. Ezra Sutton, P.A., No.15-01395, 2016 WL 6747629 (C.D.Cal. Sep. 13, 2016).