The Digger

An unhurried view of Roger Zissu        

Published in 2008 New York Metro Super Lawyers magazine

By Nick Fauchald on September 17, 2008


One expects the office of a lawyer whose casework has involved some of the world’s most iconic characters—Superman, Winnie-the-Pooh, Tarzan, Barney and the New Kids on the Block—to resemble a museum of pop culture, full of souvenirs from important cases and grateful clients. Roger Zissu’s office at the United Nations Plaza is mostly void of such clutter, but one item catches the eye: A bug-eyed “Good Luck Troll,” with its signature Don King-esque coiffure, naked but for a New York Giants jersey.

Copyright protection in the United States had been lost for the original troll dolls in the 1960s—due to omission of the copyright notice then required—but this troll lived up to its name when Zissu defended Russ Berrie, one of the companies whose dozens of copycat trolls flooded the market when the dolls were in the public domain. Early in the case, Zissu had to show the judge all of the trolls in his client’s portfolio, so he arranged dozens in a display and placed the Giants doll in front. “I knew the judge was from New York and attended Fordham college, which in those days had a strong football program,” Zissu says. “I hoped he was a fan.” Zissu (also a fan) was right. “When the judge took a break, his clerk came out and said the judge wanted to take another look at the Giants troll.”

It’s this kind of preparedness that’s earned Zissu, a copyright specialist and partner at Fross, Zelnick, Lehrman & Zissu, a reputation among his IP peers as, what Carol Simkin calls, “a digger.” Simkin worked closely with Zissu at two firms and convinced him to move to Fross Zelnick with her in 1990. “He’s a true dissector of the law,” she says. “He’ll research cases—even cases he’s lost—and spend hours studying decisions to figure out whether the judge was right or wrong. He’s a true scholar of copyright law. I don’t know anyone else who has the same depth of knowledge of the field.”

“Copyright lawyers are the Cinderellas of the industry,” says William Patry, the senior copyright counsel at Google and a longtime colleague of Zissu’s. “Compared to other areas of IP law, copyright is the least lucrative. You do it because you really love the work, and Roger loves his work. I guess he was born into it.”

Patry’s right: The name “Zissu” has been prestigious within New York copyright law since the 1930s. Roger’s father, Leonard, was a prominent copyright lawyer who represented famous jazz-era band leaders including Frankie Carle and the Dorsey Brothers. He was president of the Copyright Society of the U.S.A.—a position his son also held. He represented author Dashiell Hammett in a monumental case against Warner Bros. over the ownership of Sam Spade, the protagonist in Hammett’s hardboiled detective novel The Maltese Falcon. When Warners bought the book rights to make their 1931 movie (the Roy Del Ruth version), they believed they owned the rights to Spade’s character as well, but Zissu successfully argued that Hammett retained those rights.

Although Roger Zissu followed in his father’s footsteps, his gait, to quote British author and cartoonist Nicolas Bentley, was somewhat erratic. “I didn’t set out to become a copyright lawyer,” Zissu says. “I had to try several things out before I found my own way there.”

Zissu, 69, was born on Long Island on February 16, 1939. He was the salutatorian of the Lawrence High School class of 1956 and went on to Dartmouth, where he and his older brother Michael were members of Alpha Delta Phi, the notoriously misfit fraternity that inspired National Lampoon’s Animal House. One of the movie’s main characters, the affably schlubby Flounder (who sneaks an ill-fated horse into the dean’s office), was based on Zissu’s roommate. “There weren’t any horse pranks when I was there,” Zissu says. “But there definitely was irreverence and lewdness, some streaking-in-a-bowtie type things, which were actually a lot of fun.” He waits a beat, then adds, “But I was mostly an observer.”

When he entered Dartmouth, Zissu planned to pursue a career in engineering (“Everyone told you to become an engineer in the ’50s”), but jettisoned that plan after his third chemistry lecture. Instead he studied French language and literature and built a set of interpretive skills he applies to his legal practice. “Reading a statute is very similar to reading a poem,” he says. “A poet chooses one word over another for a very particular reason. Legislatures do the same.”

Zissu ultimately chose law over literature, hoping the former would grant him the freedom and flexibility that a career in academics could not. Even so, one can imagine him in the professorial role. Zissu doesn’t simply answer questions; he delivers jurisprudential lectures full of names, dates and detailed citations, in a patient and comprehensible manner.

In his third year at Harvard Law School, Zissu studied copyright law under Benjamin Kaplan, whose An Unhurried View of Copyright is a seminal text in the field. But at the time that still wasn’t enough to draw Zissu into his father’s profession.

Then Zissu clerked for U.S. District Judge John F. Dooling Jr., “one of the great judges,” Zissu says. “He was incredibly moral, hardworking and extremely fair. I’ve always been inspired by his dedication, but above all, his fairness.” Zissu has two favorite Dooling stories. In the Northeast blackout of 1965, Dooling was hearing a case when the lights went out, but instead of adjourning he simply handed out books of matches and had the lawyers finish their arguments by matchlight. And in 1976, when the Hyde Amendment cut off abortion funding for mothers on Medicaid, Dooling ruled the law unconstitutional on the grounds that it violated religious freedom and individual liberty. When the U.S. Supreme Court overruled, he issued a 642-page opinion, challenging their decision. “The thing is,” Zissu says, “Dooling was a devoted Catholic who went to mass every day. But he felt compelled to enforce the Constitution.”

After completing two years with Dooling, Zissu decided to give general litigation at one of the large corporate firms a try: first during a five-year stint at Davis, Polk & Wardwell, then for two years as in-house counsel at Vornado, a company that owns supermarket and discount store chains in the Northeast. But seven years in the corporate world was plenty of time for Zissu to figure out what he didn’t want to do for the rest of his career. “I learned that I didn’t like corporate law,” he says. “However, I did learn what goes on inside of corporations, which has since been a great value to me.”

In 1973 he re-entered private practice at Cowan, Liebowitz & Latman, a leading IP firm. “In those days, if you went from an in-house position back to private practice, you were looked at like you had a disease,” he says. Even so, he found another mentor in Alan Latman, one of copyright law’s principal scholars, who gave Zissu his first exposure to cases involving fictional characters. Their firm represented the heirs of Edgar Rice Burroughs, Tarzan’s creator, and in the 1980s they blocked several pornographic movies and publications, including a pictorial in High Society magazine and a film titled Tarzoon: Shame of the Jungle, from besmirching Tarzan’s image. In 1981, Zissu also moved to block MGM, which didn’t have permission from the Burroughs family, from releasing an R-rated remake, Tarzan, the Ape Man, starring Bo Derek. Several sexy scenes were deleted from the final cut.

Zissu continues to help the Burroughs family police the usage of Tarzan’s likeness. In 1992, they sued Vogue magazine for a “sexually charged” fashion spread depicting Tarzan and Jane in haute couture loincloth and leopard-skin bikini. “The press loved that story,” Zissu says. “It made the front page of Newsday and The Daily News.” He adds, “We’re not on some kind of morals crusade. My client just doesn’t want their product associated with this kind of depiction.”

Although the U.S. copyright for the original Tarzan works has since expired, the European copyright remains in effect until 2020, so anyone wishing to take a Tarzan product overseas—such as Disney and its 1999 animated version—must seek approval. Which, Zissu adds, Disney did.

Zissu has represented other children’s authors, too, including the creators of Madeline and Tintin, but he’s also handled more controversial books. In 1987, he helped Sidney Zion secure the rights to publish the tell-all autobiography of Roy Cohn, chief counsel to Joseph McCarthy and one of the prosecutors in the Julius and Ethel Rosenberg trial. At the end of Cohn’s life, Zion helped the infamous attorney rewrite his book, only to see it canceled by Random House upon his death. “Roy had dirt on everyone,” Zissu says. “As soon as he died, Random House dumped it and tried to stop it from ever seeing the light of day.” Because the book was a joint collaboration, Zion was ultimately allowed to sell the book to Lyle Stuart & Company, and dedicated the work to Zissu, calling him his “Blackstone Houdini.”

Ironically, Zissu and Cohn had run-ins before. More than a decade earlier, Zissu represented his uncle’s law firm against Cohn. “My uncle was trying to collect a fee and Roy and his client didn’t show up for trial 10 times in a row.” Cohn was personally fined $1,000 for his “outrageous” behavior. “Every now and then Roy would level with me. One day he called me and said, ‘Roger, I know you’re a good kid. But you tell your uncle that he’s a complete asshole.’ Another time, he called me a ‘competent little prick.’ I tried to take that as a compliment.”

Zissu continues to build his copyright practice at Fross Zelnick. He’s represented DC Comics in several cases involving members of its Justice League, including Aquaman, Plastic Man and Superman. He’s currently at work on a case involving the Man of Steel and the rights to the original 1938 comic book.

“Roger has courage,” Simkin says. “He’s willing to take on anything he believes to have merit, regardless of what the leading cases say. And he does it with authority and detailed understanding of copyright law.”

Zissu’s command of early 20th-century copyright law, in particular, has helped him score victories for his clients. In one protracted and well-publicized battle, he helped secure royalties for the widow and daughter of Stephen Slesinger, who had purchased the rights to sell Winnie-the-Pooh merchandise from A.A. Milne in 1930. According to Money magazine, that merchandise generates $1 billion a year, but to get a portion of that for his clients he had to battle a copyright lawyer’s worst nightmare: The Walt Disney Corporation, which had tried, along with Milne’s granddaughter, to renounce Slesinger’s deal with Milne. After years in court, Zissu and the Slesingers prevailed in 2005.

At his home near Washington Square Park, Zissu spends his free time with his wife, a high school Spanish and French teacher; his two daughters; two stepdaughters; and four grandchildren. He’s still a Francophile and reads as much literature—in both French and English—as he can, favoring Proust and Camus. He’s an avid swimmer, and follows his beloved Giants. “It’s almost religion for me,” he says. Last season, the troll doll in his office proved to be very good luck indeed.

Trolls aside, Zissu’s favorite courtroom memento is hanging on the wall of his office: a portrait New Yorker cartoonist Edward Koren sketched during one of Zissu’s most famous cases, in which he successfully tried Harper & Row’s copyright infringement claim against The Nation magazine. At issue was former President Gerald Ford’s memoirs. In 1979, The Nation obtained a copy of Ford’s forthcoming book and published a story revealing its juiciest contents. Harper & Row, which had already sold the excerpt rights to Time, sued The Nation—and ultimately won, in a U.S. Supreme Court decision that affirmed the trial ruling and in which Zissu also served as an adviser. The case became a seminal test under the then-new 1976 Copyright Act. “The Nation didn’t give any perspective in their story,” Zissu says. “They just copied and closely paraphrased significant portions of the memoir. If that had been allowed, you’d see an inability of publishers to grant excerpts and profit from memoirs of that kind.

“During the trial,” Zissu remembers, “I had seen this guy making various sketches of the lawyers, and afterwards I asked him to show me one he had made of me. I took a look at it and said, ‘This looks like Koren.’ He said, ‘I am Koren.'” Two years later, Zissu called Koren and asked if he would sell one of the sketches to him. Koren refused but they agreed to barter: one sketch for a bottle of 1970 Chateau Cos d’Estournel. “It’s nice to remember what I looked like with hair on top of my head,” Zissu says.

One of the joys Zissu derives from his practice, as this anecdote reveals, is helping authors, illustrators and creators receive due credit and compensation, whether it’s millions of dollars or a nice bottle of Bordeaux, for their work. “I don’t consider myself creative or intellectual because I’m involved with people who are creative and intellectual,” he says. “I’m a skilled person who enjoys what I do and likes being with those people.” What success he’s had in his field he attributes to the fairness he learned while clerking for Dooling. “I’ve had clients who’ve told me I’m too nice to the other side,” he says. “[But] litigation is hard enough as it is. There’s no need to have it infect the way lawyers work with each other.”

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