Introduction

Imagine an author. One day, she sees a website that allows users to annotate short stories in an innovative way, providing a variety of short stories with which to experiment. As she peruses the site, she finds that some of the stories are actually hers. She learns that the website is run by a twenty-year-old college student who wanted to show off his new annotation technology and who has no commercial motive. Despite sympathizing with the student, she wants him to take down her stories. The author previously joined the Authors Guild to help her with publishing contracts,1 and so she contacts the Guild’s lawyer to see what help the group can provide. The lawyer tells her that other members have already complained about this website, but the student has not responded to letters demanding that members’ works be taken down. He explains that it is unclear whether a class action is available. Many authors actually support the inclusion of their stories and prefer the extra exposure—mainly unpublished authors who are ineligible for full membership in the Guild or published authors who do not want to pay dues for the Guild’s services2—which makes it trickier to pursue a class action.3 It will not be a simple case. The best option is to seek legal representation for herself and to obtain an injunction. He cautions her, though, that even pursuing the case in her individual capacity might not be straightforward, as the case could fall within the complicated regime of fair use and might cost thousands of dollars.4 She thinks to herself, why should she be the one to take the risk of suing this student when there are others who know more about this issue and have more resources than she does? Then she wonders, why is it that the Guild cannot bring this suit for its members, when the point of joining the Guild was to help her with legal problems?

The situation described above is one that calls for the application of “associational standing,” a long-standing legal doctrine with a clearly delineated test. Associational standing is a type of representational standing that allows organizations to bring suits on behalf of their members in certain situations.5 There is an open question, however, as to whether this doctrine applies in copyright infringement claims. Some federal courts have held that such standing is precluded, pointing to the inability of copyright holders to assign their legal claim or the supposed inability of copyright infringement suits to satisfy associational standing requirements.6 Other courts have allowed associational standing in infringement suits when the test for associational standing has been satisfied.7

This Comment is the first scholarly work to look into this issue in depth,8 and it concludes that associational standing should be allowed under the Copyright Act.9 The Comment proceeds in three parts. Part I examines the background law surrounding standing doctrine, including both associational standing and standing under the Copyright Act. Part ΙΙ describes the cases that have dealt with associational standing under the Copyright Act. Part III argues that associational standing should be allowed, after showing that the courts that rejected associational standing erred in their legal analysis10 and that both traditional statutory interpretation principles and policy reasons weigh in favor of allowing such standing.11

  • 1. See Legal Services (Authors Guild), archived at http://perma.cc/T6GT-KD2Y (including contract review and dispute intervention as legal services provided to members).
  • 2. See Join the Authors Guild (Authors Guild), archived at http://perma.cc/NRR4-FY86 (listing the publication and income requirements for the various levels of membership).
  • 3. FRCP 23 governs the certification of class actions, and it “imposes stringent requirements for certification that in practice exclude most claims.” American Express Co v Italian Colors Restaurant, 133 S Ct 2304, 2310 (2013). See also note 243 and accompanying text (noting that there could be problems with certifying a class when members of the proposed class could actually benefit from the alleged infringement).
  • 4. Fair use is a doctrine that allows the unauthorized use of a copyrighted work in certain circumstances. One of the considerations for whether this applies, for example, is whether the alleged infringement was done for commercial purposes. 17 USC § 107.
  • 5. See notes 29–31 and accompanying text.
  • 6. See Part II.A.
  • 7. See Part II.B.
  • 8. There are two copyright treatises that have discussed the possibility of associational standing under the Copyright Act, but not to the same extent as this Comment. Compare Melville B. Nimmer and David Nimmer, 3 Nimmer on Copyright § 12.02(B)(2) (LexisNexis 2016) (noting that “[i]t is possible . . . that the [performing rights] societies could have associational standing” in certain suits), with William F. Patry, 6 Patry on Copyright § 21:28 (Thomson Reuters 2016) (arguing that “contrary to Nimmer’s wholly unsupported statement . . . associational standing is not permitted under the Copyright Act”).
  • 9. Pub L No 94-553, 90 Stat 2541 (1976), codified at 17 USC § 101 et seq.
  • 10. See Parts III.A–B.
  • 11. See Parts III.C–D.