Parental Immunity From Copyright Infringement?

I was just re-reading the Aereo decision (ABC, Inc. v. Aereo, Inc., 573 U.S. __. 134 S. Ct. 2498 (2014)), and ran across this bit of dicta in Justice Breyer’s Opinion:

“A copy shop rents out photocopiers on a per-use basis. One customer might copy his 10-year-old’s drawings โ€” a perfectly lawful thing to do โ€” while another might duplicate a famous artist’s copyrighted photographs โ€” a use clearly prohibited by ยง 106(1).”

Justice Breyer writes for the Supreme Court majority that it is “perfectly lawful” for a parent to reproduce a copyrighted work if the author is the parent’s 10-year-old child. Presumably, Breyer also believes that it is perfectly lawful for parents to thumb their noses at the exclusive rights of 17-year-old authors who happen to be their children.

Is there an age-limit to Justice Breyer’s largesse over the parental trump card? Suppose I want reproduce the work of my 32-year-old son into copies without his consent? Breyer provides no hint of the legal basis for his assertion that the Copyright Act’s exclusive rights in Section 106 are not sufficiently exclusive to exclude the parents of child-authors. Nothing in the Copyright Act suggests that Congress intended to deny child authors copyright protection from what would otherwise be infringing uses by their parents.

I suspect that there will come a day when a parent will exploit his or her child’s work for financial gain, against the child’s wishes, and cite Justice Breyer’s dicta in defense against the child’s lawsuit. Fortunately, it is dicta, which means that the Court can say “we didn’t really mean for it to apply to real facts in a real case before the Court at this time - we merely applied our lack of reasoning to fake facts in a hypothetical case not before the Court at that time.”

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