With both NCAA and NFL football now upon us, I am reminded of the popular adage, “the best defense is a good offense.” The saying can also apply in law.
Take, for example, the case of Robin Thicke, the artist behind the song “Blurred Lines.” While “Blurred Lines” was definitely the song of the summer, it also allegedly used elements of Marvin Gaye’s “Got to Give It Up,” the rights to which are held by the Gaye family. Rather than wait for the Gaye family to file suit, however, Thicke went on the offensive and filed a complaint for a declaratory judgment that “Blurred Lines” does not infringe upon “Got to Give It Up.”
Declaratory judgments are a relatively recent development in the law. Statutes such as the Federal Declaratory Judgments Act and similar state statutes allow a party to seek a court ruling before a breach or violation has occurred. Importantly, either party may file the complaint for the declaratory judgment, thus allowing a party that otherwise would be the defendant (e.g., Thicke) to become the plaintiff. As one court noted, declaratory judgments relieve potential defendants “from the Damoclean threat of impending litigation which a harassing adversary might brandish, while initiating suit at his leisure—or never.”
In addition to relieving the defendant from uncertainty, filing for a declaratory judgment also gives the potential defendant the other benefits of being plaintiff, such as selecting the forum, the timing of filing, and the original scope of the action. Filing first also gives the would-be defendant the ability to present itself as the party that has been potentially wronged and is seeking justice, as opposed to the wrongdoer being brought reluctantly to justice. The advantages in terms of the story and “optics” of the case, while hard to quantify, can be material.
While common in some areas, such as patent litigation and insurance coverage, declaratory judgments are often under-utilized in other areas. But seeking declaratory relief in conjunction with other relief can be an effective strategy. For example, in a recent action litigated by this firm, SBW attorneys sought, and ultimately obtained, a declaratory judgment regarding the ownership of certain intellectual property in conjunction with its claim for breach of contract. The declaratory judgment ultimately paved the way to obtain a permanent injunction against the offending party.