The New Copyright Opportunist
Delivered as the Copyright Society of the USA’s 49th Annual Donald C. Brace Memorial Lecture (Nov. 4, 2019).
After defining copyright opportunism, I review three recent litigation case studies that meet this definition of opportunism: one involving basketball players’ tattoos depicted in a realistic videogame, another involving lawsuits against celebrities by paparazzi photographers for posting their photos of them on social media, and a third involving claims of infringement in popular songs by copyright owners of much more obscure songs. I then explore how courts might handle opportunistic lawsuits, particularly when the plaintiff is seeking to establish a new licensing market enabled by technological advances. I propose that opportunistic lawsuits can be resolved only at the intersection of copyright doctrine and policy, as informed by relevant economic and technological realities.