Widely recognized as a foremost expert in copyright law, David Nimmer represents clients in the entertainment, publishing and high technology fields. He has twice served as co-counsel representing clients before the U.S. Supreme Court. On the first occasion, a unanimous decision in favor of his client drew the boundaries between copyright and trademark protection. In the second, another unanimous decision in favor of his client set the stage to compensate all freelance journalists in the country for their past articles.
David gave congressional testimony at the invitation of the House Judiciary Committee in 2014, on behalf of the United States Telephone Association in 1997 and on behalf of the National Association of Broadcasters in 1992. He also delivered Parliamentary testimony on behalf of the Combined Newspaper and Magazine Copyright Committee of Australia in Sydney.
Since 1985, David has authored and updated Nimmer on Copyright, the standard reference treatise in the field, first published in 1963 by his late father, Professor Melville B. Nimmer. The U.S. Supreme Court has cited Nimmer on Copyright on numerous occasions, as has every federal appellate court, countless district and state courts, as well as courts confronting copyright cases in countries across the globe. Cases within the United States have relied on Nimmer on Copyright as authority in over 3,500 judicial opinions.
Zahourek Systems, Inc. v. Balanced Body University, LLC. Convinced the U.S. Court of Appeals for the Tenth Circuit to reverse a district court’s summary judgment ruling against a client in a copyright infringement dispute over a sculpture of a human skeleton with muscles. The Tenth Circuit’s published opinion revived client Jon Zahourek’s infringement suit against Balanced Body University, LLC involving the giant skeleton Zahourek created known as “the Maniken.” Before Zahourek hired Irell, the U.S. District Court for the District of Colorado held that the sculpture was a “useful article” and not protectable by copyright. After the ruling, the client hired Irell to represent him on appeal, and David argued the matter before the Tenth Circuit. The panel agreed with David’s argument that the court’s “useful article” analysis was flawed. The opinion remanded the case for further consideration.
- The Authors Guild, Inc. v. Google Inc. Represented Amazon in the U.S. District Court for the Southern District of New York as an objector to a class action settlement reached between Google and authors and publishers who sued for copyright infringement over the Google Books project.
- Matthew Bender & Co. v. West Publishing Co. Represented publisher Matthew Bender in the U.S. District Court for the Southern District of New York and U.S. Court of Appeals for the Second Circuit in a copyright action eliminating West Publishing Company’s claim to copyright in “star pagination” in judicial decisions collected in West reporters.
- Michael Foundation, Inc. v. Urantia Foundation. Represented publisher in the U.S. District Court for the Western District of Oklahoma and U.S. Court of Appeals for the Tenth Circuit in a copyright action vindicating the right of a daughter church to publish a portion of The Urantia Book under the title Jesus: A New Revelation.
- Worldwide Church of God v. Philadelphia Church of God. Represented publisher in the U.S. District Court for the Central District of California and U.S. Court of Appeals for the Ninth Circuit in a copyright action vindicating the right of a mother church to prevent republication of its title Mystery of the Ages.
- Ergonome v. Compaq. Represented a computer manufacturer in the U.S. Court of Appeals for the Fifth Circuit in a copyright action establishing the noninfringing status of its Comfort and Safety Guide and the award to it of its attorney’s fees.
- Dastar Corp. v. Twentieth Century Fox Film Corp. Represented Dastar Corp. in the U.S. Supreme Court in a Lanham Act case, defeating Fox’s claim that Dastar could not use its own name in promoting its videos.
- Cable News Network, Inc. v. Video Monitoring Services of America, Inc. Represented CNN in obtaining en banc review by the U.S. Court of Appeals for the Eleventh Circuit of an adverse ruling setting forth a jurisdictional requirement that all works in suit and subject to injunction must be independently registered in the records of the U.S. Copyright Office.
- Reed Elsevier v. Muchnick. Represented petitioner for review of an adverse judgment by the U.S. Court of Appeals for the Second Circuit, holding that the formality of registration with the U.S. Copyright Office is a jurisdictional prerequisite for any federal litigation to proceed.
- Saroyan v. Stanford University. Represented the university challenging copyright termination of music publishing rights in Come On-A My House.
- Milne v. Stephen Slesinger, Inc. Represented granddaughter of author A.A. Milne seeking to vindicate termination of publishing rights in her grandfather’s classic work Winnie-the-Pooh.
- Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. Represented testamentary heir of Martha Graham asserting ownership rights in the copyright to her choreography.
- Princess Cruises, Inc. v. Amrigon Enterprises Incorporated. Served as a special master on behalf of the U.S. District Court for the Central District of California in a copyright case challenging which company has control of the cruise line’s passenger database.
Honors & Awards
- Recognized in The Legal 500 for Intellectual Property – Copyright (2008-2019)
- Named “Lawyer of the Year” in the areas of copyright law (2018), IP litigation (2013) and information technology law (2011) by Best Lawyers in America
- Named one of “The 25 Most Influential People in IP” by The American Lawyer (2010)
- Recognized as the “Intellectual Property ‘Lawyer of the Year’” by the Century City Bar Association (2010)
- Selected to the Southern California Super Lawyers list every year since the list’s inception
- Named one of California’s “Top 10 Copyright Lawyers” by the Daily Journal (2008)
David has contributed to numerous books, including Le lisibile et l’illsibe (2003), Cases and Materials on Copyright and Other Aspects of Entertainment Litigation (2002), Artefacts and Intellectual Property (2001), Copinger and Skone James on Copyright (1991), OnMultimedia: Technologies for the 21st Century (1990), Droit des affaires (1989) and International Copyright Law and Practice (1989-1998).
David has also published a series of influential articles on the subject of U.S. and international copyright. Kluwer International published one anthology of his articles in 2003 under the title Copyright: Sacred Text, Technology and the DMCA and a second in 2008 entitled Copyright Illuminated. A roster of his articles includes:
- “Introduction,” Chambers Global Practice Guide: Copyright (2020)
“Volition in Violation of Copyright,” 43 Colum. J.L. & Arts 1 (2019)
“Investigating the Hypothetical ‘Reasonable Royalty’ for Copyright Infringement,” 99 B.U. L. Rev. 1 (2019)
- “Juries and the Development of Fair Use Standards,” 31 Harv. J. L. & Tech. 563 (2018)
- “Breaking Down the Barrier Separating Copyright from droit d’auteur,” Entertainment, Issues Nos. 1 and 2 (2017)
- “Innocence of Copyright: An Inquiry into the Public Interest,” 63 J. Copyright Soc’y 367 (2016)
- “Aereo, Disruptive Technology, and Statutory Interpretation” SCOTUSblog and Daily Journal (June 26 and June 27, 2014, respectively)
- “Copyright and the Fall Line,” 31 Cardozo Arts & Ent. L.J. 803 (2013)
- “Is Copyright Property?—The Debate in Jewish Law,” 12 Theoretical Inquiries in L. 241 (2011)
- “Queen Anne in the Emperor’s Shadow,” 47 Hous. L. Rev. 919 (2010)
- “Pooh-Poohing Copyright Laws ‘Inalienable’ Termination Rights,” 57 J. Copyright Soc’y 799 (2010)
- “Copyright Law and the Restoration of Beauty,” 47 Osgoode Hall L.J. 553 (2010)
- “Access Denied,” 3 Utah L. Rev. 769 (2007)
- “Unwinding Sony,” 95 Cal. L. Rev. 941 (2007)
- “Legal Realism in Action: Indirect Copyright Liability’s Continuing Tort Framework and Sony's De Facto Demise,” 55 UCLA L. Rev. 143 (2007)
- “A Modest Proposal to Streamline Fair Use Determinations,” 24 Cardozo Arts & Ent. L.J. 11 (2006)
- “Copyright’s ‘Staple Article of Commerce’ Doctrine: Patently Misguided,” 53 J. Copyright Soc’y 365 (2006)
- “Promises! Promises!” 119 Harv. L. Rev. F. 74 (2006)
- “Repeat Infringers,” 52 J. Copyright Soc’y 167 (2005)
- “On the Sony Side of the Street,” 34 Sw. U. L. Rev. 205 (2004)
- “The Moral Imperative Against Academic Plagiarism (Without a Moral Right Against Reverse Passing Off),” 54 DePaul L. Rev. 1 (2004)
- “Codifying Copyright Comprehensibly,” 51 UCLA L. Rev. 1233 (2004)
- “Preexisting Confusion in Copyright’s Work For Hire Doctrine,” 50 J. Copyright Soc'y 399 (2003)
- “'Fairest of them All’ and Other Fairy Tales of Fair Use,” 66 Law & Contemp. Probs. 263 (2003)
- “Appreciating Legislative History: The Sweet and Sour Spots of the DMCA’s Commentary,” 23 Cardozo L. Rev. 909 (2002)
- “Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb,” 49 J. Copyright Soc’y 387 (2001)
- “Back From the Future: A Proleptic Review of the Digital Millennium Copyright Act,” 16 Berkeley Tech. L.J. 855 (2001)
- “Copyright in the Dead Sea Scrolls: Authorship and Originality,” 38 Hous. L. Rev. 1 (2001)
- “Ignoring the Public, Part I: On the Absurd Complexity of the Digital Audio Transmission Right,” 7 UCLA Ent. L. Rev. 189 (2000)
- “A Riff on Fair Use in the Digital Millennium Copyright Act,” 148 U. Pa. L. Rev. 673 (2000)
- “Puzzles of the Digital Millennium Copyright Act,” 46 J. Copyright Soc’y 401 (1999)
- “The Metamorphosis of Contract Into Expand,” 87 Cal. L. Rev. 17 (1999)
- “Aus Der Neuen Welt,” 93 NW. U. L. Rev. (1998)
- “Time and Space,” 38 IDEA 501 (1998)
- “Adams and Bits: Of Jewish Kings and Copyrights,” 71 S. Cal. L. Rev. 219 (1998)
- “An Odyssey Through Copyright’s Vicarious Defenses,” 73 N.Y.U.L. Rev. 162 (1998)
- “A Tale of Two Treaties,” 22 Colum.-VLA J.L. & Arts 1 (1997)
- “Are We Running Through the Jungle Now or Is the Old Man Still Stuck Down the Road?” 39 Wm. & Mary L. Rev. 65 (1997)
- “Brains and Other Paraphernalia of the Digital Age,” 10 Harv. J.L. & Tech. 1 (1996)
- “Abend's Stepchild,” 43 J. Copyright Soc’y 139 (1996)
- “The End of Copyright,” 48 Vand. L. Rev. 1385 (1995)
- “GATT’s Entertainment: Before and NAFTA,” 15 Loy. L.A. Ent. L.J. 133 (1995)
- “A Structured Approach to Analyzing the Substantial Similarity of Computer Software in Copyright Infringement Cases,” 20 Ariz. St. L.J. 625 (1988)
- “Corcovado: Renewal's Second Coming or False Messiah?” 1 UCLA Ent. L. Rev. 127 (1994)
- “Nation, Duration, Violation, Harmonization: An International Copyright Proposal for the United States,” 55 Law & Contemp. Probs. 211 (1992)
- “Refracting the Window’s Light: Stewart v. Abend in Myth and in Fact,” 39 J. Copyright Soc'y 18 (1991)
- “The Impact of Berne on United States Copyright Law,” 8 Cardozo Arts & Enter. L.J. 27 (1989)
- “Copyright Ownership by the Marital Community: Evaluating Worth,” 36 UCLA L. Rev. 383 (1988)
- “The Double Jeopardy Clause as a Bar to Reintroducing Evidence,” 89 Yale L.J. 962 (1980)
- “Caso Google vs Oracle,” Universidad Externado de Colombia (October 30, 2020)
- “The Future of Copyright,” TEDxRoma, an independently organized TED event held in Rome, Italy (April 8, 2017)
- David lectures widely in the copyright arena around the world: at MILIA in Cannes, ALAI in Tel Aviv, LUISS in Rome, IMPRIMATUR in London and the Copyright Society of Japan in Tokyo, and regularly to bar organizations in California and throughout the U.S.
- Professor from Practice, UCLA School of Law
- Member, American Law Institute
- Chairman, Committee on Intellectual Properties Litigation for the American Bar Association (1989-1992)
Yale Law School (J.D., 1980); Editor of the Yale Law Journal
Stanford University (A.B., 1977), with distinction and honors
- California, 1980
- U.S. District Court for the Central and Northern Districts of California
- U.S. District Court for the District of Colorado
- U.S. Court of Appeals for the Second, Fifth, Ninth, Tenth, Eleventh and Federal Circuits
- U.S. Supreme Court