Copyright case awaits further action

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In 2015, when Rochester Institute of Technology’s scholarly publishing arm decided to put out an anthology of previously published film criticism by Stanley Kauffmann, it probably seemed like a coup, or at least a good idea.

But four years later, after distributing and hastily withdrawing a scant 80 copies of “The Millennial Critic: Stanley Kauffmann on Film,” RIT finds itself again enmeshed in a copyright dispute with Kauffmann’s estate. And by the admission of the disputed anthology’s compiler, RIT was hoodwinked into publishing the volume. 

The copyright dispute, which RIT thought it had put to rest last year with a lower court ruling dismissing the Kauffmann estate’s claim, was revived in August when the Kauffmann estate won an appeal reversing U.S. District Judge Charles Siragusa’s dismissal ruling. It now awaits further action in Siragusa’s court. The circuit court reversal leaves RIT with virtually no options other than settling with the Kauffmann estate or taking its chances in a jury trial.  

In the meantime, the university, as of Siragusa’s August 2018 ruling, by its own account had racked up $199,000 in legal bills. As the case grinds on, the meter is ticking away. 

Citing a policy against commenting on pending litigation, RIT spokeswoman Ellen Rosen declined to comment on the case.

Kauffmann, who died at 97 in 2013, was a revered figure. Widely known and venerated as a drama and film critic and essayist, Kauffmann mostly wrote for the New Republic, a storied periodical whose writings on the arts, politics and social trends have been held in the highest esteem by liberal-leaning intelligentsia since 1914. 

Citing Kauffmann’s long career with the New Republic, a 2013 New York Times obituary described Kauffmann as someone to whom readers turned “for reviews that read like mini-tutorials, the product of a deeply literary mind and a graceful pen.”

As an acquisitions editor for Ballantyne Books in 1953, just before he began a 55-year stint as the New Republic’s in-house critic, Kauffmann launched the career of science fiction icon Ray Bradbury. Later, as an editor for the Alfred A. Knopf publishing house, he discovered and edited Walker Percy’s National Book Award-winning novel “The Movie Goer.” 

At the heart of the copyright kerfuffle lies the Kauffmann anthology’s compiler, Robert Cardullo, a sometime academic known as much or more as a plagiarist than for his scholarship.  

“To the extent that the Kauffmann estate was damaged by the alleged copyright infringement, such damage (was) caused solely by Cardullo, without any fault or liability on the part of RIT,” lawyers for the university contended in a 2017 brief. 

Siragusa agreed, granting the university an award of “reasonable” attorney’s fees in a December 2018 ruling. The apparently favorable ruling came with two important caveats: Siragusa disallowed some $21,000 of the $199,000 in bills RIT submitted, reducing the award to approximately $178,000. But more significantly, any fee recovery would be collectible only from Cardullo, who since the RIT case began has decamped for distant foreign locales and has claimed to not have funds sufficient to pay the award.

A onetime student of Kauffmann’s who has held teaching posts including a University of Michigan professorship, Cardullo is, in the words of the three-judge federal appellate panel that reversed Siragusa’s 2018 ruling, “a serial plagiarist of writings by Kauffmann and others (who) misrepresented to RIT that Kauffmann’s will had granted him sole authority to prepare an anthology of Kauffmann’s film reviews.” 

In a 2017 email to RIT attorney Jeremey Oczek, a litigator in Bond, Schoeneck & King’s Rochester office, Cardullo wrote that he was “fully guilty of all the charges against me and that RIT Press was duped by me in this affair.”

Cardullo’s admission of guilt turns out to be of less value to RIT’s case or its pocketbook than it might appear, however. 

RIT won the fee-award judgment against Cardullo, who did not appear to defend himself, by default. His most recent academic posting appears to have been at a Turkish University in 2015. Court filings show that in 2017, he was served papers in the RIT dispute in Helsinki, Finland. 

In court pleadings over the past two years, RIT did not dispute the Kauffmann estate’s ownership of intellectual property it inherited from Kauffmann. Instead, the university concentrated on the theory that the New Republic and not Kauffmann owns the 44 essays in dispute in the infringement case.

To make its case, RIT cited a 2004 letter in which the magazine told Kauffmann that it saw his writings as work for hire, an arrangement under which the magazine would own rights Kauffman’s contributions. 

Siragusa agreed. 

The appellate panel did not. 

The work-for-hire rule usually applies to situations in which a writer or artist is an employee of a newspaper or magazine. Despite publishing monthly in the New Republic, Kauffman was never directly employed by the magazine but worked as a freelancer, an arrangement in which rights to an author’s material would in most cases revert to the author after publication. 

Notwithstanding statements the magazine made in the 2004 letter, Kauffmann on a number of occasions had granted rights to works first published in the New Republic to other third parties and the magazine had never objected, the appellate panel found. But more telling to the panel was the five-year gap between the disputed essays’ publication and the 2004 letter.

It concluded that “Kauffmann was and remains the author of the 44 articles, and his estate, as his successor, is the owner of the copyrights in them. The Estate is entitled to proceed on its suit for infringement.” This leaves virtually no room for RIT to dispute the Kauffmann estate’s claim. 

“To give the 2004 Agreement the significance adopted by the district court would risk endorsing a fiction,” the appellate panel wrote in the Aug. 1 ruling reversing Siragusa’s earlier decision. 

How the case will finally resolve remains to be seen.

“I’m always open to an appropriate settlement,” says Kauffmann estate attorney Kenneth Norwick of Norwick & Schad in Manhattan. “If not, let it go to a jury.”  

Will Astor is Rochester Beacon’s senior writer.

One thought on “Copyright case awaits further action

  1. All this over a book that would likely sell relatively few copies; certainly not enough to even come close to these legal fees.

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