Copyright. My curriculum vitae is appended hereto as Exhibit A.

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION S. VICTOR WHITMILL, ) ) Plaintiff, ) ) v. ) ) WARNER BROS. ENTERTAINMENT, INC. ) ) Defendant. ) Civil Action No. 4:11-cv-752 Judge Catherine D. Perry DECLARATION OF DAVID NIMMER I, David Nimmer, hereby state: 1. I am an attorney at law admitted to practice law in the State of California in 1980 and a professor at the UCLA School of Law. My specialty is domestic and international copyright law. Among many other works on the subject, I am the current author of Nimmer on Copyright. My curriculum vitae is appended hereto as Exhibit A. 2. Warner Bros. Entertainment Inc. has retained my services, through Irell & Manella LLP, in connection with the above-captioned case. 3. In this case, plaintiff S. Victor Whitmill claims copyright ownership over an Original Tattoo that he "originally created... on the upper left side of [famous boxer Mike] Tyson's face"; he further maintains that his copyright has been infringed by defendant's production and distribution of a motion picture (The Hangover Part 2) that "features a virtually exact reproduction of the Original Tattoo, which appears on the upper left side of the Stu Price character's face, played by actor Ed Helms." Complaint, '111[ This Declaration investigates that claim.

2 A. Background Regarding Pictorial Works 5. The United States Copyright Act of 1976 recognizes protection for the category of "pictorial, graphic, and sculptural works." 17 U.S.C. 102(a)(5). On that basis, Figure 1 by M.C. Escher may constitute a protectible work of authorship as a picture. Figure 1 Drawing Hands 6. By parallel logic, Figure 2 by Auguste Rodin may constitute a protectible work of authorship as a sculpture. Figure 2 The Thinker 2

3 7. In the case at bar, plaintiff Whitmill registered for protection a work that he entitled "Tribal Tattoo," which he describes as "Artwork on 3-D object." Complaint, Ex. 5, Registration Number VA By registering "Tribal Tattoo" in category VA, plaintiff Whitmill affirmed that it constituted a work of the Visual Arts. 9. The "3-D object" (to use plaintiff Whitmill's terminology) referenced by the registration of VA is that depicted in Figure 3: Figure 3 Mike Tyson B. Requisite Medium of Expression 10. The question arises whether copyright protection can subsist in a work incorporated into a human body. 11. Two elements are essential for copyright protection in the United States: (a) an original expressive work and (b) a material substrate. 12. The eligible categories of expressive works are set forth in paragraphs (1) through (8) of 17 U.S.C. 102(a). In this case, the implicated category, as explained above, is "pictorial, graphic, and sculptural works." 3

4 13. As to material substrates, the statute affords protection only to "works of authorship fixed in any tangible medium of expression." 17 U.S.C. 102(a). The instant question is whether the "3-D object" depicted in Figure 3 qualifies as a "medium of expression." The following examination of copyright law reveals that Mr. Tyson's head cannot constitute a protectible medium of expression. 14. Copyright doctrine recognizes that various physical substrates may be inadequate bases to secure protection. Classic examples include writing a literary work in the wet sand before the oncoming tide or inscribing a pictorial work in the frost of a windowpane. See 1 Nimmer on Copyright 1.01[B][2][a], 2.03[B][2]; Ira L. Brandriss, Writing in Frost on a Window Pane: and Chatting on RAM and Copyright Fixation, 43 J. Copyright Soc'y 237 (1996). 15. In years past, I tacitly assumed that a tattoo could "presumably qualify as a work of graphic art, regardless of the medium in which it is designed to be affixed" such as "human flesh." In writing up a 2000 case, I even posited one line to that effect in a footnote, without purporting to cite any authority in support. See 1 Nimmer on Copyright 1.01[B][1][i] n About a decade ago, in composing a book-length treatment of copyright subsistence, I began to reconsider that proposition. See David Nimmer, Copyright in the Dead Sea Scrolls: Originality and Authorship, 38 Hous. L. Rev. 1 (2001). In sketching out a score of different cases, I formulated one to consider whether a human body may ever qualify as the requisite "medium of expression" to secure copyright protection. After first ruminating that a court faced with such a claim should "dismiss it summarily, if on no other basis than the constitutional prohibition on involuntary servitude and other badges of slavery," I concluded that "a body, even as augmented, simply is not subject to copyright protection." Id. at 29-30, 209 (citing U.S. Const. amend. XIII) (footnotes omitted). -4-

5 17. In reviewing this case, I have given intense consideration to the question that occupied those few paragraphs of my 2001 exposition. For all the reasons detailed in this Declaration, I re-affirm my earlier conclusion that live bodies do not qualify as a "medium of expression" sufficient to ground copyright protection. 18. At the outset, let us consider case law. My review of published decisions has uncovered no case that usefully explicates the issue. In one decision, the plaintiff owned copyrights to designs imprinted on T-shirts, which the defendant infringed by embodying one in a temporary tattoo. See Gonzales v. Transfer Techs., Inc., 301 F.3d 608 (7th Cir. 2002). That case, focusing on the defendant 's conduct, offers no illumination on whether a plaintiff may secure copyright protection in a tattoo. 19. In terms of cases that treat a plaintiff's allegation to own an interest, protectible under copyright law, in a tattoo, I have found none. In short, copyright protection for tattoos is unprecedented. 20. Let us imagine that this Court were to adopt the unprecedented stance that plaintiff Whitmill urges that he owns rights in an image as inscribed into another human being's flesh. The consequences of recognizing copyright protection for a tattoo, qua tattoo, include the following: a. The tattoo qualifies as an original "work of visual art" that may gain "recognized stature," with the result that a court may enjoin its destruction. See 17 U.S.C. 106A(a)(3)(B). After a court invokes that provision to bar him from removing his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be required to keep Mr. Whitmill's handiwork spread across his face, regardless of his own desires. Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own. See generally Thomas F. Cotter & Angela M. Mirabole, Written on the Body: Intellectual Properly Rights in Tattoos, Makeup, and Other Body Art, 10 UCLA Ent. L. Rev. 97, (2003 b. If Mr. Tyson chooses to obtain an adjacent or overlapping tattoo on his face, he will have compromised the copyright owner's right to prepare derivative works, -5-

6 thereby becoming a copyright infringer. See 17 U.S.C. 106(2). As such, he is subject to a court order that the offending work be destroyed. See 17 U.S.C. 503(b). A court that vindicates Mr. Whitmill's statutory rights by ordering laser removal of the unauthorized product has allowed the Copyright Act to be perverted, once again, into an instrument rendering Mr. Tyson into a virtual slave. c. A magazine article that features a picture of Mr. Tyson's face violates the copyright owner's display right. See 17 U.S.C. 106(5). A television network that broadcasts Mr. Tyson's boxing match violates the copyright owner's performance right. See 17 U.S.C. 106(4). The same applies to a studio that makes a documentary about Mr. Tyson and the theater that screens the film. If Mr. Tyson authorized those various usages, he is a contributory infringer in each instance. Those considerations could be multiplied throughout the spectrum of copyright doctrine, but the foregoing three examples suffice to illustrate the dangers of adopting the unprecedented stance that tattoos are subject to copyright protection. 21. In the present case, plaintiff Whitmill evidently avers that he granted a license to Mr. Tyson, whose scope may arguably overcome some of the foregoing detriments in this particular case. But the question before this Court is whether copyright protection can ever arise for a tattoo physically attached to a person's body. If the answer is affirmative then, regardless of the particular facts of this case, there is no reason for other tattooists to grant any such license. They may draft their form contracts not only to reserve all copyright in the subject tattoo but also explicitly to disclaim any license, express or implied. 22. Indeed, a previous artist filed suit as a plaintiff against the individual on whom he affixed his purportedly copyrighted tattoo. See Christopher A. Harkins, Tattoos and Copyright Infringement: Celebrities, Marketers, and Businesses Beware of the Ink, 10 Lewis & Clark L. Rev. 313 (2006) (describing complaint brought against Rasheed Wallace, subsequently dismissed pursuant to a confidential settlement). To the extent that this Court validates copyright protection for tattoos, such lawsuits could well become routine in the future. -6

7 23. Even when the tattooist assigns away by contract all right, title, and interest in the copyright, he can still return 35 years later to assert an inalienable right to terminate the grant. See 17 U.S.C. 203(a)(3) and (5). For example, a 20-year old actress might get a tattoo from X, subject to his agreement (negotiated by her counsel) to assign to her all copyright interests in the image and never to terminate the grant. When she turned 55, she might nonetheless be shocked to learn that X now has the right to block merchandising of her image. 24. Accordingly, the specters raised in paragraph 20 are all live and could apply across the board, if this Court becomes the first in the history of the United States to accord copyright protection to a tattoo, qua tattoo. 25. For all these reasons, human flesh cannot serve as the "medium of expression" that Congress intended to embody legally protectible authorship. For that reason, plaintiffs claim of copyright over a tattoo on Mike Tyson's body must be summarily rejected. C. Useful Articles 26. If, to the contrary of the argument set forth above, this Court were to consider the possibility that an image inscribed on a human being may be subject to copyright protection, further questions rise to the fore. 27. In crafting the 1976 Act, Congress was sensitive to the fact that "pictorial, graphic, and sculptural works" are often combined into physical substrates that raise concerns regarding the scope of copyright protection. 28. Pictures and sculptures can, at times, be embodied into physical forms that serve no ends beyond serving as the vehicle to express the subject picture or sculpture. The painting portrayed in Figure 1 and the sculpture featured in Figure 2 have no ulterior functionality; that is, the ink/paper and the bronze/marble in those instances are designated entirely to serve as the substrate for Escher's and Rodin's respective expressions. -7-

8 29. In contrast, many cases have faced pictorial, graphic, and sculptural works that are incorporated into items that serve other purposes, ranging from lamp bases to bicycle racks. For instance, Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir. 1980), featured two belt buckles, the Vaquero and the Winchester. The former is pictured in Figure 4: Figure 4 The Vaquero buckle 30. Figure 4 exemplifies a physical item that has at least one purpose other than to serve as the substrate for an expressive work, i.e, it can hold up a pair of trousers. In the eyes of the Copyright Act, it therefore qualifies as a "useful article," which the statute defines as follows: A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article". 17 U.S.C Therefore, under the Copyright Act, the substrates used to display expressive works will fall into one of two categories: objects devoted exclusively to expressing the original work and useful articles. 32. In turn, Congress used the "useful article" definition to limit the scope of protection in defining what qualifies as "pictorial, graphic, and sculptural works." [T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 8

9 17 U.S.C How does that limitation translate to the instant domain of tattoos? As previously noted, copyright protection for tattoos is unprecedented. Also as previously set forth, human flesh should not serve as the requisite "medium of expression" sufficient to ground copyright protection. 34. Nonetheless, if tattoos may be subject to copyright protection, then they must be pigeon-holed into their appropriate statutory classification. 35. The question thereupon arises how to characterize Figure 3, over which plaintiff Whitmill asserts copyright protection. In particular, the question is whether the physical medium shown therein has "an intrinsic utilitarian function that is not merely to portray the appearance of the article." 36. The "3-D object" on which plaintiff Whitmill has inscribed his putatively copyrighted expression happens to be Mr. Tyson's head. Far from that physical medium serving solely as the substrate for expression, as was the case in Figures 1 and 2, a human head so long as connected to a body, with a beating heart is a very useful item, indeed (particularly to the person whose brain it encases). 37. A live person's head serves vastly more functions than any material object ever could. In fact, on the spectrum of utility, a head qualifies as infinitely more of a "useful article" than does a belt buckle, bicycle ramp, lamp base, or anything else that has ever been litigated. a. As illustrated in Figure 5, the material substrate of a painting or sculpture has no functionality other than to depict that particular painting or sculpture. b. As to all litigated cases, of which Kieselstein-Cord may be taken as representative, the material substrate has both a functional aspect and an aesthetic aspect. c. When we consider Mr. Tyson's head, it stands poles apart it serves a minor role to portray the aesthetic aspect of plaintiff Whitmill's handiwork, and countless other functional aspects, each of which is far more important. -9-

10 Figure 5 Spectrum of Non-Expressive Utility 38. For each of us, our own bodies are of supreme worth, making any artwork that a person might happen to own pale into insignificance by comparison. The irony of this particular case is that Mr. Tyson, a retired professional athlete, has earned his livelihood from his body. Thus, it would be difficult to imagine a worse test case than this one to vindicate the proposition that the body of someone bearing a tattoo serves no functionality, other than to exist as the substrate for a third party's artistic expression. 39. We have now seen that the consequence of treating human flesh as a "medium of expression" sufficient to ground copyright protection is the corollary that a body part qualifies as a "useful article." In ordinary parlance, an "article" is not considered animate. To the extent that Congress never intended to use the word "article" to refer to a portion of somebody's body, it follows that Congress never contemplated that flesh could embody a copyrightable work. We thus return to our first proposition, namely that human flesh is not a "medium of expression" that Congress intended to embody legally protectible authorship. 40. These considerations should suffice to reaffirm the proposition set forth in part B above, that tattoos fail to qualify as copyrightable because not fixed in a cognizable "medium of expression." That conclusion avoids the need to go further and thus face the odd concomitant of labeling bodies as "articles." 41. Nonetheless, if tattoos are deemed subject to copyright protection, then they are incorporated into items (human bodies) that form "useful articles" in the copyright sense. The

11 next question, therefore, is to determine how much copyright protection to afford to those "useful articles." D. Physical Separability 42. Consider a pale substitute for a live head: mannequins of a human torso with hollowed backs. When adjudicating their status, the Second Circuit held those mannequins to be useful articles, and for that reason to stand outside copyright protection. See Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir. 1985). 43. It will be recalled that the statutory definition quoted above limits protection to "pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." The requisite separability has given rise to the longest-standing dispute extant in all of United States copyright doctrine. 44. On the one hand, the Second Circuit (exemplified by the Carol Barnhart and Kieselstein-Cord cases cited above) allows copyright to subsist given the existence of only "conceptual" separability. On the other, Esquire, Inc. v. Ringer, 591 F.2d 796 (D.C. Cir. 1978), requires "physical" separability as a condition to copyright protection. To my knowledge, no published decision by the Eighth Circuit takes a side in that dispute. 45. As applied to tattoos, the only legally cognizable result is to apply the strict requirement of physical separability. Such a construction is necessary to avoid the constitutional infirmity that would arise if the Copyright Act attempted to set at naught the Thirteenth Amendment's prohibition of badges of slavery. It is also the sole possibility consonant with sound public policy of a non-constitutional dimension. 46. To review, the subject matter over which plaintiff Whitmill asserts copyright protection is the following:

12 Figure 3 Mike Tyson As Figure 3 makes manifest, the physical substrate of the putatively copyrighted work in this case is Mr. Tyson's head. There can be no physical separation of the work over which plaintiff Whitmill asserts legal ownership from a live person's flesh and blood. 47. As set forth above in paragraph 20, the consequences of recognizing copyright protection for a tattoo include the possibility that a court could order the bearer not to remove it, if it has gained recognized stature; or to order the bearer to undergo laser removal, if he has added an additional tattoo adjacent to it; or to prevent magazine, television, and film coverage of the bearer with the tattoo on his face. Further, as set forth above in paragraph 23, there is no possible way for the bearer of the tattoo to protect herself against those consequences; because the statute gives the tattooist an inalienable right to terminate prior grants, he may always belatedly claim ownership even of an image that he has previously conveyed away (and even if he has expressly agreed never to reclaim it). 48. Those considerations mandate adoption of the rule of physical separability with respect to tattoos. The design inked onto a human being should never constitute the property of another individual. Thus, even on the questionable assumption that live human flesh may serve

13 as the "medium of expression" that Congress intended to allow as the substrate to secure copyright protection, copyright protection still must be denied to tattoos. E. Effect of Copyright in Artwork on Tattoos 49. Plaintiff Whitmill inked the subject image in this case directly onto Mike Tyson. The discussion set forth above has considered the precise circumstances of this case. But it is also worth exploring what this case is not. The instant claim differs fundamentally from one involving creation by an artist of an image, such as the one portrayed in Figure 6: Figure 6 Ferocity 50. That painting is a pictorial work. Assuming it results from original expression (as opposed to being copied from antecedent sources), then Figure 6 may qualify for copyright protection. That painting is wholly separate from anyone's body. It therefore poses none of the invidious consequences catalogued above. 51. A different case would arise to the extent that a tattooist first created an image as a template, before inking the subject individual. Even in that case, however, the image would give the tattooist no right to control application of that same image to other individuals, for the reasons set forth below

14 52. Congress legislated a distinction into the Copyright Act that a given representation may be copyrightable as a painting, but not as applied in the context of useful articles for instance to a body as a tattoo: This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. 17 U.S.C. 113(b). 53. That provision has never been construed in the context of tattoos. On the other hand, extensive consideration of its impact has arisen in the domain of architectural works. It is therefore instructive to consider how this provision applies in that realm, and then to bring those considerations to bear insofar as they affect the proper structure of copyright law vis-a-vis tattoos. 54. In brief, the 1909 Act (which applied before the 1976 Act took effect on January 1, 1978) conveyed copyright protection over technical drawings, such as blueprints, but not over structures. Accordingly, courts held that a copyright owner could prevent a third party from making a reproduction of its blueprints, but could not prevent construction of a building based on those blueprints. In copyright parlance, the building was not a "copy" of the blueprints; therefore no copyright could subsist in the building, and, correlatively, the building could not infringe any subsisting copyright (i.e., constitute an infringing "copy"). 55. An example of the regnant approach under the 1909 Act is Muller v. Trihorough Bridge Authority, 43 F. Supp. 298 (S.D.N.Y. 1942), holding that the copyright in a plan for the construction and operation of the Approach to Cross Bay Parkway Bridge did not protect against

15 the use of that plan in the actual building of the contemplated structure. (For a much lengthier analysis of this complex field, see 1 Nimmer on Copyright 2.08[D][2], 2.20.) 56. The rule placing buildings outside of copyright protection served U.S. copyright interests until the United States acceded to the Berne Convention in Because one article of that international treaty requires all member states (such as the U.S.) to afford copyright protection to buildings, Congress decided that it was under an obligation to alter U.S. copyright law. The next year, it therefore enacted the Architectural Works Copyright Protection Act. See 17 U.S.C. 101, 120 (1990). 57. A parallel development occurred with respect to computer software. As enacted in 1976, the current Act afforded to software no more protections "than those afforded [under the law as it existed] on December 31, 1977." 17 U.S.C. 117 (1976). Congress revisited that domain several years later, by passing the Computer Software Copyright Act of See 17 U.S.C. 117 (1980). (For a complete analysis of this complex field, see 2 Nimmer on Copyright 8.08.) 58. The 1980 amendment affecting computer software and the 1990 amendment affecting architectural works both consciously expanded the domain of copyright protection. Before those amendments, copyright owners could vindicate only such rights in software and buildings as subsisted as of Given that Congress has passed no comparable amendment for tattoos, the copyright status of tattoos, insofar as their making from portrayals thereof is concerned, remains today exactly as it existed in As of 1977, the applicable Copyright Act listed the categories eligible for copyright registration. 17 U.S.C. 5 (1909 Act, effective through Dec. 31, 1977). Its

16 enumeration contained no hint of tattoos. No other provision of the 1909 Act mentioned such protection, either. 61. The further question is whether any provision of copyright law, as of 1977, was "held applicable and construed by a court in an action brought under" the Copyright Act to vindicate copyright protection for tattoos. As of 1977, no case had upheld legal protection for tattoos under U.S. copyright law. 62. Did Congress wish to change that state of affairs by the wholesale substitution of a new Act, which took effect on January 1, 1978? The legislative history of the 1976 Act is voluminous. I possess a compendium of primary materials, edited by George Grossman and published by Heim & Co. It fills seventeen volumes but even so is non-exhaustive (thus, on occasion, forcing me to search for other primary materials). The material in those volumes begins in 1955, when Congress first contemplated an omnibus revision, and continues through passage of the Act in In all those seventeen volumes, I cannot locate a single reference to tattoos. The same applies to all the other (uncollected) primary materials that I have reviewed. 64. Tattoos, in short, were not protected via copyright as of 1977, and there is no indication that Congress wished to alter that status when the new law took effect in By virtue of 17 U.S.C. 1 13(b), "the making, distribution, or display" of tattoos from portrayals thereof is therefore not activity that implicates copyright interests. 65. To illustrate concretely the application of section 113(b), let us imagine that plaintiff Whitmill, instead of designing his putatively copyrightable work on another's face, had first put pencil to paper to come up with an appropriate design. What status would result? Figure 7 illustrates

17 Figure 7 Prototype of Tyson Tattoo 66. To put these circumstances into the framework enacted by Congress in section 113(b), Mr. Whitmill's hypothetical copyright in Figure 7 would make him "the owner of copyright in a work that portrays a useful article as such." Section 113(b) spells out the contours of his "rights with respect to the making, distribution, or display of the useful article so portrayed." In other words, it defines the contours of Mr. Whitmill's rights to control affixation of that tattoo to other individuals, such as on Ed Helms (the gravamen of the complaint in this case). Specifically, section 113(b) commands that plaintiff Whitmill's rights in that regard be no "greater or lesser... than those afforded to such works under the law... in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title." 67. In effect, Mr. Whitmill can pursue his cause of action today only if the law in effect on December 31, 1977, accorded him that right. In particular, the subject "law" to which the statute refers must be that "held applicable and construed by a court in an action brought under" the Copyright Act. 17 U.S.C. 113(b). As previously noted, it is impossible to point to cases arising before or during 1977 that accorded copyright protection to tattoos. That circumstance is fatal to the instant claim. -17-

18 68. If, contrary to fact, tattoos constituted copyrightable subject matter in 1977, then the applicable provisions of the 1909 Act would have required affixation of a legible copyright notice as a condition for protection. See generally 2 Nimmer on Copyright chap. 7. In other words, legal rights in tattoos could arise only for tattooists who inked into the skin of their patrons, adjacent to the subject artwork, a visible legend in the form "Copyright 1977 by Victor Whitmill" (or other prescribed alternative). Id. It beggars the imagination to posit that custom and practice in the United States, circa 1977, comported with that legal norm. For that reason as well, it is impossible to seriously maintain that the law, as of 1977, accorded copyright protection to tattoos. 69. Lack of copyright protection for tattoos as of 1977 continues to exert fatal consequences through the present. It means that plaintiff Whitmill, even if he had created Figure 7 and therefore qualified as "the owner of copyright in a work that portrays a useful article as such," would still have no right to object to the image being embodied into any other "useful article," i.e., affixed onto a human being (such as Ed Helms). F. Conclusion 70. For all theses reasons, the count alleging copyright infringement in this case is fatally deficient. 71. For copyright protection in tattoos to arise, Congress would have to act anew, in the manner of its 1980 amendment to the Copyright Act to afford protection to computer software and its 1990 amendment to the Copyright Act to afford protection to architectural works. Congress is always free to adopt a new amendment according protection to tattoos, if it believes such an expansion of copyright law to be necessary to the national well-being. But, to be effective, that amendment would have to pass constitutional muster, which seems highly unlikely for the reasons set forth above. -18-

19 72. In any event, the Copyright Act as it stands today not having been amended to expressly grant protection to tattoos affords no copyright protection to that subject matter. For that reason, plaintiff Whitmill's case fails. I declare, under penalty of perjury of the laws of the United States, that the foregoing is true and correct. Executed on May 20, 2011, at Los Angeles, California. avid Nimmer

20 EXHIBIT A DAVID NIMMER Irell & Manella LLP 1800 Avenue of the Stars Suite 900 Los Angeles, California (310) or (310) dnimmer@irell.com PUBLICATIONS NIMMER ON COPYRIGHT releases 19 through 83 ( ) COPYRIGHT ILLUMINATED: REFOCUSING THE DIFFUSE U.S. STATUTE (2008) COPYRIGHT: SACRED TEXT, TECHNOLOGY, AND THE DMCA (2003) COPYRIGHT'S MILLENNIAL TURN (1999) IMPOSSIBLE REALITIES (1995) COPYRIGHT'S TRADE STATUS: GATT AND NAFTA (1994) HOME AUDIO TAPING OF MUSIC: DIGITAL TECHNOLOGY AND THE NEW COPYRIGHT AMENDMENTS (1993) THE BERNE CONVENTION IMPLEMENTATION ACT OF 1988 (1989) "Assaying Qimron's Originality" in ARTEFACTS AND INTELLECTUAL PROPERTY (Timothy H. Lim, Hector L. MacQueen, Calum M. Carmichael, eds.) (2001). "United States," in Nimmer & Geller, eds., INTERNATIONAL COPYRIGHT LAW AND PRACTICE (1988) (and annual updates ) "Copyright Law of the USA," in COPINGER AND SKONE JAMES ON COPYRIGHT (1991) (and 1994 Supplement) Fourth Edition (and 1989 Supplement to Third Edition) of CASES AND MATERIALS ON COPYRIGHT AND OTHER ASPECTS OF ENTERTAINMENT LITIGATION (1991) (with Paul Marcus and David Myers) Contributor to ON MULTIMEDIA: TECHNOLOGIES FOR THE 21ST CENTURY (M. Greenberger, ed. 1990) "Le Droit D'Auteur en Droit American" in DROIT DES AFFAIRES (1989) (Eric Laporte, trans.) EXHIBIT A -20-

21 * * * "Is Copyright Property? The Debate in Jewish Law," 12 Theoretical Inquiries in L. 241 (2011) (with Neil Netanel) "Pooh-Poohing Copyright Laws 'Inalienable' Termination Rights," 57 J. Copyright Soc'y 799 (2010) (with Peter Menell) "Queen Anne in the Emperor's Shadow," 47 Hous. L. Rev. 919 (2010) "In the Shadow of the Emperor: The Hatam Sofer's Copyright Rulings," 15 Torah U-Madda J. 24 (2010) "Copyright Law and the Restoration of Beauty," 47 Osgoode Hall L.J. 553 (2010) "Rabbi Banet's Charming Snake," 8 Hakirah 69 (2009) "Access Denied," 3 Utah L. Rev. 769 (2007) "Unwinding Sony," 95 Cal. L. Rev. 941 (2007) (with Peter Menell) "Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise," 55 UCLA L. Rev. 143 (2007) (with Peter Menell) "A Modest Proposal to Streamline Fair Use Determinations," 24 Cardozo Arts & Ent. L.J. 11 (2006) "Copyright's 'Staple Article of Commerce' Doctrine: Patently Misguided," 53 J. Copyright Soc'y 365 (2006) (with Peter Menell) "Promises! Promises!," 119 Harv. L. Rev. F. 74 (2006), "Repeat Infringers," 52 J. Copyright Soc'y 167 (2005) "On the Sony Side of the Street," 34 Sw. U. L. Rev. 205 (2004) "The Moral Imperative Against Academic Plagiarism (Without a Moral Right Against Reverse Passing Off)," 54 DePaul L. Rev. 1 (2004) "Codifying Copyright Comprehensibly," 51 UCLA L. Rev (2004) "Preexisting Confusion in Copyright's Work For Hire Doctrine," 50 J. Copyright Soc'y 399 (2003) (with Peter Menell & Diane McGimsey) "'Fairest of them All' and Other Fairy Tales of Fair Use," 66 Law & Contemp. Probs. 263 (2003) "Appreciating Legislative History: The Sweet and Sour Spots of the DMCA's Commentary," 23 Cardozo L. Rev. 909 (2002)

22 "Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb," 49 J. Copyright Soc'y 387 (2001) (with Peter Menell) "Back From the Future: A Proleptic Review of the Digital Millennium Copyright Act," 16 Berkeley Tech. L.J. 855 (2001) "Copyright in the Dead Sea Scrolls: Authorship and Originality," 38 Hous. L. Rev. 1 (2001) "Ignoring the Public, Part I: On the Absurd Complexity of the Digital Audio Transmission Right," 7 UCLA Ent. L. Rev. 189 (2000) "A Riff on Fair Use in the Digital Millennium Copyright Act," 148 U. Pa. L. Rev. 673 (2000) "Puzzles of the Digital Millennium Copyright Act," 46 J. Copyright Soc'y 401 (1999) "The Metamorphosis of Contract Into Expand," 87 Cal. L. Rev. 17 (1999) (with Elliot Brown and Gary Frischling) "Aus Der Neuen Welt," 93 Nw. U. L. Rev. 195 (1998) "Time and Space," 38 IDEA 501 (1998) "Adams and Bits: Of Jewish Kings and Copyrights," 71 S. Cal. L. Rev. 219 (1998) "An Odyssey Through Copyright's Vicarious Defenses," 73 N.Y.U. L. Rev. 162 (1998) "A Tale of Two Treaties," 22 Colum.-VLA J.L. & Arts 1 (1997) "Forum on Attorney's Fees in Copyright Cases: Are We Running Through the Jungle Now or Is the Old Man Still Stuck Down the Road?," 39 Wm. & Mary L. Rev. 65 (1997) "Brains and Other Paraphernalia of the Digital Age," 10 Harv. J.L. & Tech. 1 (1996) (excerpted in 46 Rivista di Diritto Industriale 55) "Abend's Stepchild," 43 J. Copyright Soc'y USA 139 (1996) "The End of Copyright," 48 Vand. L. Rev (1995) "GATT's Entertainment: Before and NAFTA," 15 Loy. L.A. Ent. L.J. 133 (1995) "Corcovado: Renewal's Second Coming or False Messiah?," 1 UCLA Ent. L. Rev. 127 (1994) "Nation, Duration, Violation, Harmonization: An International Copyright Proposal for the United States," 55 Law & Contemp. Probs. 211 (1992) "Refracting the Window's Light: Stewart v. Abend in Myth and in Fact," 39 J. Copyright Soc'y USA 18 (1991) "The Impact of Berne on United States Copyright Law," 8 Cardozo Arts & Enter. L.J. 27 (1989)

23 "Copyright Ownership by the Marital Community: Evaluating Worth," 36 UCLA L. Rev. 383 (1988) "A Structured Approach to Analyzing the Substantial Similarity of Computer Software in Copyright Infringement Cases," 20 Ariz. State L.J. 625 (1988) (with Richard L. Bernacchi and Gary N. Frischling) "The Double Jeopardy Clause as a Bar to Reintroducing Evidence," THE CRIMINAL LAW REVIEW OF 1981; reprinted from 89 Yale L.J. 962 (1980) * * * "Groundhog 007," 21 New Matter No. 3 (Fall 1996) "Second Wind," Los Angeles Lawyer (November 1995) "Letter from the United States," Informatierecht/AMI No. 9 (November 1994); "Lettera dagli Stati Uniti," II Diritto Industriale n. 1/1995 (Claudia Paoletti, trans.) "Studios vs. Writers: A Bend in Analysis," 11 Entertainment Law Reporter, No. 4 (September 1989) "Criminal Copyright and Trademark Law: The Importance of Criminal Sanctions to Civil Practitioners," 9 Criminal Law News, No. 1 (Summer 1989); 9 Entertainment Law Reporter, No. 1 (June 1987) "The Berne Convention Implementation Act of 1988: A New Era," Copyright World, No. 4 (May 1989) "Analyzing Substantial Similarity in Computer Software Infringement Cases," 6 The Computer Lawyer Nos. 1 & 2 (1989) "Copyright Works: The Importance of Importation," 13 New Matter No. 4 (Winter 1988) "Fee Simple: Debunking the Increasing Complexity in the Award of Attorney's Fees in Copyright Infringement Cases," 6 Entertainment and Sports Lawyer (ABA) No. 4 (Spring 1988) "Advanced Issues in Copyright Ownership," in Current Issues in Entertainment Law (1988) "Arbitration and No-Contest Clauses in Copyright Contracts: A Critique of Saturday Evening Post Co. v. Rumbleseat Press," 9 Entertainment Law Reporter, No. 9 (February 1988) "Criminal Copyright and Trademark Law Update," 9 Entertainment Law Reporter, No. 4 (September 1987) "Criminal Copyright and Criminal Contempt," THE LAW OF GRAY AND COUNTERFEIT GOODS (P.L.I. Publication 1987)

24 WEBCASTS "Who Owns Art, Who Owns Science? What Happens when the Two Collide?," UCLA Center for Design and Media Arts, November 2004 ( "The Dead Sea Scrolls: Copyright and the Future of Academic Research," University of Haifa, March 2001 ( MULTIMEDIA Managing Editor and monthly columnist, The Multimedia Law Report Founding Guest, CompuServe Multimedia Forum Various In-House Presentations Parliamentary Testimony (Sydney) OTHER Congressional Testimony (Washington) Trustee, Los Angeles Copyright Society Former Assistant United States Attorney, Central District of California, Criminal Division Former Law Clerk, Honorable Warren Ferguson, Ninth Circuit Court of Appeals , Chair, Committee on Intellectual Properties Litigation, ABA Section of Litigation EDUCATION Yale Law School, J.D Editor, Yale Law Journal, Stanford University, A.B Phi Beta Kappa 1976