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Frost-Tsuji Architects v. Highway Inn, Inc., et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 15-15802, 16-15562 ,16-15799, 16-15802 · judgment October 26, 2017


Certiorari denied · April 2, 2018
Pre-decision estimate: 6% cert probability (95% interval 4%–10%)

Before the decision, about 1.5× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a Ninth Circuit decision below, and a petition filed soon after the judgment below, and down for a business respondent.

Questions presented

There is a disparity between the circuits as to explicit exclusive rights afforded by the Architectural Works Copyright Protection Act (“AWCPA”) which has not been previously reviewed by this Court. 17 U.S.C. §§ 102 and 106 recognize “architectural works” as a designated special Class with explicit exclusive rights by Act of Congress. The First, Third, Fourth, Sixth, and Eleventh Circuits review their cases recognizing the rights of the copyright author, while the Fifth, Seventh, and Ninth Circuits advance the standard of implied license, which is not a limitation or exception under § 120.

  1. Whether judicial grant of an unremunerated, involuntary, sua sponte implied license, is allowed to negate the explicit exclusive rights in “architectural works” to do and to authorize the bundle of rights under 17 U.S.C. § 106; contrary to 17 U.S.C. § 201(e), and in violation of U.S. Constitution Art. 1, § 8, Clause 8, and against the congressional mandates of AWCPA.

  2. Whether the Ninth Circuit disregarded this Court by failing to recognize misconduct and illegal acts that nullify any license, in determining fee awards in a copyright infringement case, as decided in Kirtsaeng v. Wiley & Sons, 579 U.S. ___, 136 S.Ct. 1979, 2016 WL 3317564.

  3. Whether removal of indications of attribution without the author’s knowledge or authorization, on

Counsel of record

For petitioner
Randall K. Schmitt
McCorriston Miller Mukai MacKinnon, LLP

For respondent
David Ronald Major
Bays Lung Rose & Holma

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 1 conference

Order
Order list, April 2, 2018 · Certiorari denied

Proceedings

  1. Apr 02 2018
    Petition DENIED.
  2. Mar 13 2018
    DISTRIBUTED for Conference of 3/29/2018.
  3. Mar 07 2018
    Reply of petitioner Frost-Tsuji Architects filed.
  4. Feb 23 2018
    Brief of respondents Highway Inn, Inc., et al. in opposition filed.
  5. Jan 19 2018
    Petition for a writ of certiorari filed. (Response due February 23, 2018)