The family of the late Donald Duvall, former chief administrative law judge for the International Trade Commission, filed a copyright infringement lawsuit against a Washington law firm yesterday accusing the firm of unlawfully taking credit for Duvall's work.
Duvall's widow, Kathryn Duvall, accused Washington-based Kenyon & Kenyon of conspiring to not give Duvall credit on the latest edition of a legal text he first wrote more than 20 years ago. In the complaint, filed in U.S. District Court for the District of Columbia, Kathryn Duvall called the firm's claims that the updated text no longer included her husband's writings "frivolous" and said the firm was trying to cut her family off from future royalties.
The firm and four individual attorneys are named as defendants. Partner Edward Colbert, who isn't a defendant, said that they were "taken aback" by the complaint. He said the publisher, and not Duvall or his family, owned the copyright to the text, and that the firm wrote the latest edition at the request of the publisher. The text had been "substantially altered" over the years, he added.
"I'm sorry she's obviously upset enough to have done this, but there really is no basis for the suit," Colbert said.
Lead counsel for Kathryn Duvall, David Pohl of New York's Pohl LLP, declined to comment.
After retiring from the International Trade Commission in 1984, Duvall worked for Kenyon & Kenyon. In 1990, according to the complaint, he published a legal text on proceedings before the commission involving Section 337 of the Tariff Act of 1930, a statute commonly used to enforce U.S. intellectual property rights.
Updated editions over the years listed Duvall as an author. In 1997, according to the complaint, Duvall entered into an agreement that gave Kenyon certain editorial rights over the text but guaranteed one-third of royalties would go to Duvall or his estate, as long as his name was included.
Duvall died in 1999. His estate continued to receive royalties for more than a decade, according to the complaint. The most recent payment—$17,423 for copies sold from July to December 2011—was made in December 2011.
In June 2012, Kathryn Duvall said Kenyon notified her that the estate wouldn't receive future royalties because there was "virtually nothing left" of Duvall's original text. Kathryn Duvall argued that much of her husband's work was included in the latest version and accused the firm of trying to shut out the estate before the publisher released an electronic version—"a source of sales that will generate substantial revenue and thus substantial royalties," she claimed.
The firm offered to continue paying Kathryn Duvall royalties from hard- or paperback sales, according to the complaint. She wrote that she rejected the offer because it would have required her daughters and the estate to forfeit future rights to royalties and it also didn't include electronic sales.
The complaint highlighted passages from the 2012 edition that Kathryn Duvall argued were the same, or mostly the same, as a 1997 edition. In one 900-word section, for instance, Kathryn Duvall claimed that besides changing the phrase "In a nutshell" to "Briefly" and altering citation formats, the new version was identical to the 1997 edition. In another section, she accused Kenyon of claiming ownership of "the most idiosyncratic elements of Judge Duvall’s writing."
Colbert said "there is undoubtedly some original text in there from back in 1997," but that any overlap wasn't relevant to the ownership rights.
Kathryn Duvall is asking the court to declare that Duvall is an author of the 2012 edition and to issue a permanent injunction barring Kenyon and its attorneys from declaring themselves the sole authors of any edition that includes Duvall's work.
The case is assigned to U.S. District Judge James Boasberg.
Update: The case was voluntarily dismissed on June 20. Lead plaintiffs’ counsel David Pohl said they planned to refile the lawsuit in New York after facing a challenge to the D.C. court’s jurisdiction to hear the case.