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In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote:

Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities .... Thus, accumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.

Judge Stanton went on to characterize the case as a “Frankenstein monster posing as a class action” — that is, as an unnatural attempt to unify mismatched parts. Given the individualized inquiries involved in resolving copyright infringement claims, Judge Stanton’s position against certifying such classes makes intuitive sense. If class actions aim to resolve common claims, questions that address only a single class member would push against the efficiency of the class action mechanism and an attempt to unite those claims would only lead to judicial disaster. However, copyright infringement can occur in a sweeping manner through a single act or identical course of conduct involving a broad set of works. In these cases, the tension between copyright law and the class action mechanism can be overstated. The danger of such overstatement is the potential for judges to give such wholesale treatment to all putative copyright-holder classes instead of assessing them on a case-by-case basis.

Contrary to Judge Stanton’s assertion, this Note will argue that certifying a class of copyright holders — such as the one Arnold and Beth seek to represent in the PhotogaPub hypothetical — is not presumptively impossible, but that putative copyright holder classes and types of copyright claims may lie at various points along a spectrum of certifiability. To guide this argument, this Note will periodically revisit the PhotogaPub fact pattern to work through the different ways that a putative class of copyright holders can tailor itself to meet the class certification requirements.


Winner of the 2015 Andrew D. Fried Memorial Prize.