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Carpenters have a saying: "measure twice, cut once”. This opening line from a recent 7th Circuit Opinion says it all. Final Call sold over a hundred copies of Jesus Ali’s portrait of Nation of Islam leader, Louis Farrakhan, without Ali’s permission. Ali sued Final Call for copyright infringement. The trial court relied on authority from the 7th Circuit that, through a typo, incorrectly shifted the burden of proof of an affirmative defense from the defendant to the plaintiff. While taking some responsibility for the error, the 7th Circuit reversed and remanded for assessment of damages.
WHY YOU SHOULD KNOW THIS. All legal drafting creates a breeding ground for potential ambiguities, misdirection and opposite meanings. Leaving off a little word like “not” or using “and” instead of “or” can completely change the meaning of a contract, a statute or a legal opinion. When a court opinion makes a critical mistake, parties can be burdened with incorrect precedent. Luckily, the 7th Circuit recognized its mistake in this case thereby assuring correct legal authority for future copyright infringement plaintiffs.