
Those who can’t, become lawyers. I always envisioned myself as a creator. At a young age I took lessons in piano and cello. I practiced journalism at my high school and college papers. I wrote a software program in 1980s-era BASIC to manage my fantasy baseball team. I once even sang in a school choir (the memory haunts me to this day).
I never made it in the creative arts. But my career in copyright litigation has put me shoulder-to-shoulder with creators in an even better way. I have had the good fortunate to represent musicians, songwriters, photographers, graphic artists, software developers, and academics—among others—in protecting their valuable intellectual property rights. Along the way, I’ve represented some of the world’s biggest corporations, defended a host of small businesses against a wide array of legal challenges, and volunteered legal services to the wrongly accused, the victims of abuse, undocumented immigrants, and others who could not afford legal representation.
I started my legal career, happily enough, with a decade at one of the nation’s premiere litigation firms. I helped to formulate the music industry’s initial strategy for combating copyright infringement online, pursuing music pirates at home and abroad to help clear the way for licensed online music services to get off the ground. I also managed the implementation of a groundbreaking settlement with a website operator that resulted in the first-ever copyright “filter” in a commercial peer-to-peer music network, led successful litigation on behalf of a small family-run carpet designer and manufacturer against a major Las Vegas casino for the unauthorized use of a carpet design, and litigated rate-making proceedings on behalf of major record labels before the Copyright Royalty Board.
I’ve also developed a substantial copyright appellate litigation practice over my career. I was a member of the briefing team for MGM v. Grokster, the 2008 Supreme Court case that established the liability of peer-to-peer file-sharing companies for infringing content. More recently, I submitted an amicus brief to the Supreme Court in Warhol v. Goldsmith, the landmark case that clarified longstanding ambiguities in the “transformative use” test of the fair use doctrine. I also represented a client in a copyright appeal in the Second Circuit involving important fair use and implied licensing issues and submitted an amicus brief to the Ninth Circuit on behalf of a photographer in a high-profile copyright appeal against a prominent Los Angeles tattoo artist.
In addition to the Warhol and Grokster copyright cases, I was a member of the Supreme Court briefing team in Rumsfeld v. Padilla, one of the first legal challenges to post-9/11 military detention policies to reach the Court. I also contributed amicus briefs in Padilla v. Kentucky, a case establishing the right of non-citizens to effective representation at thep leading stage; Dickerson v. United States, a case reaffirming the Miranda rule; Christopher v. Harbury, a case involving alleged human rights abuses overseas; and United States v. Arvizu, a case involving search and seizure rights.
I am especially proud of my record of public service and my support of clients who are unable to pay for legal services. I worked for several years as a legislative aide for U.S. Senator Chris Dodd, was part of the litigation team in the Bush v. Gore litigation and, more recently, provided transition assistance for then-incoming Arizona governor Katie Hobbs. I spent a year volunteering for one of Argentina’s most prominent civil liberties organizations. I also led the successful reversal of the homicide conviction of an indigent woman in South Carolina who was wrongly accused of harming her fetus by the use of drugs, the successful representation of a Tucson-area animal shelter against a frivolous contract breach, and the successful representation of several low-income immigrants facing challenges because of their status and lack of resources.
I speak Spanish fluently and have lived for many years in Latin America. In my spare time, I also write a daily column on developments in copyright law for Intellectual Property Law Daily, a trade journal put out by legal publisher Wolters Kluwer. Last but not perhaps not least, I am a recovering Mets fan and I still think The Clash are the only band that ever mattered. (Some of my childhood experiences, apparently, never quite wore off.)
I’d love to talk to you about your legal issues. Drop me a line at matt@matthewhersh.com or use the contact form below to get in touch with me.