OK, so I’m mixing metaphors on one or more axes at the same time. But this August, 2005 posting from Bill Patry, while not very fresh (though it is to me; I just stumbled on it today), remains very good if — like me — you like to see either naked emperors or phony wizards brought low. The topic is the requirement that copyrights be registered in order for the federal courts to enforce their owners’ rights in them — a pretty straightforward requirement of the Copyright Act and one which some courts nonetheless seem to consider optional. Writes Patry (I have added hyperlinks for better understanding for non-specialists):
The errant courts have all been led astray by Nimmer, for whom, in my opinion, the statute is at best a secondary source to be ignored at will. Nimmer on Copyright reflects an approach of the treatise writer as colossus, striding the legal world and telling courts what the law is regardless of what the law is; a bit like country singer Willie Nelson’s lyrics about being caught in flagrante delicto by a wife and saying to her “Who are you going to believe, your [lyin’] eyes or me”? Judge Tymkovich’s opinion is thorough and methodical in showing why Nimmer is wrong, why the emperor (like Willie Nelson) has no clothes.
I am not, incidentally, advocating for anything involving Willie Nelson and “no clothes.”
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