Drawing (Intellectual) Property Lines

Joseph Beck fought to preserve Dr. King’s dream; now he’s fighting for Google’s

Published in 2006 Georgia Super Lawyers — March 2006

One wouldn’t expect to find a painting of a horse wearing a business suit in one of the largest firms in Atlanta, but it hangs outside the door of Joseph Beck’s office in Kilpatrick Stockton’s midtown building.
 
Beck, a member of the firm’s art acquisition committee, selected the painting by artist Kojo Griffin, and when it appeared colleagues poked fun at the selection for its offbeat style. But a few weeks later Beck was flipping through the pages of The New York Times when he read that Griffin’s work had been included in the prestigious Whitney Biennial.
 
“It looked like I had good taste in art after that,” says Beck, laughing at the memory.
 
Beck admits he greatly admires those who support themselves through their artistry. He’s one of the country’s top intellectual property lawyers, and, as the in-house copyright guru at Kilpatrick Stockton, he’s been at the center of some of the field’s higher-profile cases, with clients ranging from the hit rappers OutKast to DC Comics to the estate of Martin Luther King.
 
“When it comes to copyright cases, people know that Joe is the person to call,” says Miles Alexander, the head of Kilpatrick’s 100-lawyer IP group. “He’s a real scholar when it comes to copyright law. More importantly, he views it as more than just a way to earn a paycheck or make a living.”
 
Indeed, Beck sees interesting intersections between intellectual property law and First Amendment law, a belief he backs up by teaching two classes on the subject at Emory University. He’s also a sought-after speaker in the field.
 
At the same time, Beck won’t hesitate to defend those who claim fair use of copyrighted material — like in the upcoming high-profile cases in which he will represent the popular search engine Google against the Author’s Guild and a consortium of publishing houses.
 
“I’ve tried to help authors and publishers enjoy the creative rights they’re entitled to,” says Beck, 62. “At the same time, I’ve represented the other side when I believed they had a legitimate claim to fair use.” 
 
 
Over an afternoon lunch in an office just off the partner’s dining room, Beck details the path he took to becoming an intellectual property expert. It was not a direct one.
 
Beck grew up in Montgomery, Ala., in the middle of the civil rights movement and then attended Emory University, where he served as college president of the student body his senior year. He entered Harvard Law School, where he also served in the ROTC.
 
After graduating from Harvard, and after a two-year stint as a stateside lawyer in the U.S. Army (he made 1st Lt.), Beck worked in a neighborhood legal services program where he won his first big case — a class action lawsuit against an ABC affiliate for neglecting to serve the African-American population.
 
In 1972, Kilpatrick Stockton came calling. Miles Alexander, who had recruited Beck at Harvard, thought he would be a good fit for the firm. “You could tell he cared about people,” Alexander says. So Beck and his wife, Kay, then an assistant professor at American University, moved to Atlanta. Kay Beck is now a professor at Georgia State.
 
“I tell people that [after all these years] I’ve got the same wife and the same firm,” says Beck, who became a partner in 1978. “[My wife and I] probably would have the same house, too, if we would have had better judgment back then.”
 
Because Kilpatrick Stockton did not have an intellectual property division when he joined the firm, Beck started in general litigation and securities work. But in 1984, he and Alexander represented the plaintiff in an oft-cited parody case, DC Comics, Inc. v. Unlimited Monkey Business, Inc. (Northern District of Georgia).
 
With Alexander working the trademark aspect of the case and Beck hammering away on the copyright, the tandem went after Unlimited Monkey Business, a singing-telegram company that featured two characters named “Superstud” and “Wonder Wench.” The characters, Alexander and Beck argued, improperly appropriated two of DC Comics’ biggest properties — Superman and Wonder Woman.
 
In the end, DC Comics was victorious because Beck and Alexander established that Unlimited Monkey Business was merely imitating the superhero pair and not parodying it. The line was a fine one, but Beck helped establish it. Years later, Justice Anthony Kennedy cited the case in a Supreme Court concurring opinion.
 
“There was no parody present in the case,” Beck says. “I asked the president of Unlimited if they were making fun of Superman and she said no and that they liked Superman. That was a harmful admission.”
 
 
Beck’s office is full of reminders from past cases. Near the door are two large poster boards containing the text from Martin Luther King’s “I Have a Dream” speech. Each was used in a 1999 case in which Beck earned a settlement with CBS after the network improperly used over 62 percent of the speech in a televised special.
 
During the case, CBS argued that under an old copyright law, King would have been required to insert a notice of the copyright in the speech. Beck, Alexander and colleague Bill Brewster argued that such a notion was silly. Could anyone imagine King saying, “Thank God Almighty, Free at Last! All rights reserved.”?
 
Not quite.
 
“Did Dr. King deliver ‘I Have a Dream’ in order to make money off the copyright royalties? Of course not,” Beck says. “But the fact that he was able to enjoy some royalty income enabled him to have the career he had. Mrs. King told me one time that royalties paid the light bills some months. He didn’t make that much money as a preacher.”
 
On a shelf near the window rest a few photographs of Andre 3000 and Big Boi, the two members of OutKast. Beck represented the duo when the guardians of Rosa Parks accused the group of illegally using the civil rights icon’s name in a song named “Rosa Parks” on the 1998 album Aquemini.
 
OutKast became interested in hiring Beck after learning of his work with the R&B group TLC in a previous case. Beck had never heard of OutKast, but his two young daughters quickly clued him in. Now he owns and listens to their records, citing “Rosa Parks” and “Hey Ya!” as his favorite songs.
 
Though the Parks case was filed in 1999, it wasn’t resolved until the middle of 2005. After several decisions, and claims from her own family that Parks’ attorneys and guardians weren’t acting in her best interests, OutKast agreed to a settlement that included a tribute album and a television special for Parks. Parks died not long after the decision.
 
Beck was aware of the irony in litigating against Rosa Parks. He was, after all, only a short time removed from defending the estate of Martin Luther King, and both King and Parks were icons of a civil rights movement that began in his hometown. But, as always, Beck’s convictions were rooted in the letter of the law.
 
“There’s a difference in using 62 percent of a copyrighted work without permission and using the name ‘Rosa Parks’ as a metaphor for a song about people in the hip hop business,” Beck says. “When OutKast wrote that song and used their hook — ‘everyone move to the back of the bus’ — and then named the song ‘Rosa Parks,’ they were not, in our view, using her name in a way that was impermissible. It was protected by the First Amendment.
 
“I think it’s a mistake by the courts to look over the shoulders of writers or other creative people and make them justify their use of metaphor or symbols. To do so, for many writers, would mean hiring a lawyer, and that would chill the expression. The writer would simply name it something else. 
 
“I believe that a fair number of young people who previously didn’t know about Rosa Parks learned about her through this song.”
 
 
In 2001, Beck again defended parody when he represented
the defendant in Sun Trust Bank v. Houghton Mifflin. At stake
was the publication of the 2002 book The Wind Done Gone
by Alice Randall. Essentially a novel-length parody of Gone
With the Wind, The Wind Done Gone told the well-known story
from the viewpoint of the slaves.
 
Though a parody defense applied, Beck needed to show that Randall’s citing of the original work was necessary, and not illegal.
 
“We could have summoned up images of Gone With the Wind by simply saying, ‘Frankly, my dear, I don’t give a damn,’” Beck points out. “But effective parody means taking down the offensive work, root and branch. In order to take it down, we had to cite more and the court agreed.” The book was published in 2002.
 
Currently, Beck is in the middle of what could be a landmark case in intellectual property law. Google has plans to scan material from four university libraries (Oxford, Michigan, Stanford and Harvard) and the New York Public Library and make it searchable on the Internet. Two different groups — the Author’s Guild and an association of publishers led by McGraw Hill — have organized class action lawsuits to stop the search engine.
 
Google has said it only plans to make three lines available from each work so that its users can find the material. It also believes the feature will drive book sales and interest in out-of-print works. The opposition claims that Google will be guilty of mass copyright violations.
 
The case, Beck says, is one of the reasons he likes IP law, an ever-evolving field as technology finds new ways to disseminate information.
 
“We’re constantly getting new decisions involving novel arguments concerning fair use of movies and music,” says Beck, who adds that it’s an honor to be a part of the Google case. “And now we’re hearing never-before-heard arguments involving the Internet and electronic rights. It becomes a real challenge to keep up and I enjoy that.”
 
So much so that Beck finds ways to immerse himself in the discipline without burying his nose in law books or taking depositions. He has made three trips to Russia with the U.S. State Department, stressing the importance of stringent copyright laws to the government and artists in Moscow and St. Petersburg. He also served as a trustee of the Copyright Society of the USA and started the organization’s Southeast chapter.
 
This spring, Beck will teach two classes as an adjunct professor at Emory — one focusing on the First Amendment in the journalism school and one on copyright law in the law school. Beck has already received the Emory Award, the highest honor the school can give.
 
But give Beck a chance to talk about his own accomplishments and he’ll likely deflect the praise — like a quarterback directing all his praise toward his offensive linemen.
 
“I have had some outstanding help,” Beck says. “You can’t do these types of cases by yourself and I certainly wouldn’t have tried.”

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