16 October 2008

Mistaken Federalism (Part V of VI)

[continued from 12 October; posting delayed by technical difficulties]
Now it's time to look at the real problem with the Tennessee Court of Appeals's decision: It lacked the legal power to issue the decision in the first place. This is where the "mistaken federalism" of this series of posts' title comes from.

A court must inquire into its subject-matter jurisdiction at every step — that is, whether the nature of the lawsuit is one within its power to hear. The US system divides that authority between the states and the federal (national) system. Two particular doctrines are relevant to this dispute. On the one hand, there is a judge-made "probate exception" that keeps probate matters in state court, and denies federal courts subject-matter jurisdiction over them.4 As the Supreme Court has recently made excrutiatingly clear (or, at least, excrutiating), though, this is a very, very narrow exception.

In short, we comprehend the interference language in Markham as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.

Marshall v. Marshall, 547 U.S. ____ (2006) (citations omitted).5

On the other hand, federal courts have exclusive jurisdiction over copyright claims — and the meaning of the Copyright Act — under both the Copyright Act itself (17 U.S.C. § 301) and the federal jurisdictional statutes (28 U.S.C. §§ 1331, 1338(a)). As the Tennessee Court of Appeals's decision makes clear — and, again, excrutiating, but not excrutiatingly clear — interpreting Andre Norton's badly drafted will requires answering the two questions posed above. Both of those questions, in turn, have their answers in the Copyright Act, implying that answering them falls within the exclusive jurisdiction of the federal courts. Perhaps the biggest hint is that every single nontestimonial source cited on these questions — and much of the testimony — is federal.

We thus have a choice-of-jurisdiction question that parallels the classic choice-of-law conundrums of renvoi and dépeçage, which try to describe the circular logic of these kinds of cross-references (in a confusing way intimated by the use of bad French translations). The key point, though, is that at the level of subject-matter jurisdiction, the "right result" from a court that has no subject-matter jurisdiction is not wrong, but meaningless, and cannot bind the parties (or anyone else), nor serve as precedent for others. In this context, that means that the matter should have been either dismissed in its entirety or stayed while the parties were sent to the United States District Court for the Middle District of Tennessee to obtain a declaratory judgment on these two questions. And the result, under pretty clear federal precedent, would have been this one; but it would have been clearer, shorter, and meaningful.

  • Although the Copyright Act does not use the term "posthumous," it does contain an extensive discussion of works first published after the death of the author, used in calculating the term of copyright. The Tennessee Court of Appeals does not once refer to these provisions. Similarly, a large body of case law in the Second Circuit, which has been adopted by implication in the Sixth Circuit, reaches the same conclusion... and does use the word "posthumous."
  • At its core, though, this dispute requires deciding whether "copyrights" and "royalties" are coextensive, either in practice or in theory. In turn, that requires discerning the meaning of "copyright"... a question exclusively within the scope of the Copyright Act. The Tennessee Court of Appeals's confusion appears to come from its (and Nimmer's) inelegant mixture of cases decided under the 1909 Act — under which the various rights that form part of a copyright were "indivisible" — and the 1976 Act — which explicitly made the various rights that form part of a copyright divisible, including the technical probate sense of "devise". A federal court would not have been confused by these issues; or, at least, one hopes not.

This error means that the dispute between Dr Horadam and Sue Stewart is not over, and in fact will never be over until it is ruled upon by a federal court. That is, there will always remain some uncertainty, because a third party claiming an interest in the underlying properties — hypothetically, a film producer claiming that Dr Horadam had licensed him the rights to film one of the novels during the period prior to the Tennessee Court of Appeals's decision — could file its own declaratory judgment action in federal court. (It would arguably implicate legal malpractice if it did not!).

In the final piece in this series of posts, I will make some general comments on what authors can do to avoid these problems in the first place... whether or not they're already dead.

  1. See, e.g., the extensive discussion of the exception in Markham v. Allen, 326 U.S. 490 (1946), which makes clear that this is purely a judge-made doctrine to prevent interference with the supposed exclusive jurisdiction over the state-law-unique aspects of administering an estate. Id. at 494.
  2. Thanks to the torpid pace at the overworked Clerk's Office of the Supreme Court (and the anal-retentive citation system imposed on cases by the Four Evil Law Reviews), this is only an unofficial version of the opinion over two years after it was issued, and will remain so for probably another year.