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ONE OF HURST’S FAVORITE WORDS IS
“framing.” Whether it’s making a pitch to a
jury or to the members of her kids’ PTA, it’s
all about the context.
Hurst created a CLE slide show in which
she presents the facts of IP and copyright
cases and asks the audience to guess
the ruling. Everyone’s batting average is
low because extremely similar cases can
have dramatically different outcomes.
“I like copyright because it presents the
Kirtsaeng v. John Wiley & Sons Inc.
opportunity to use excellent lawyering to
influence the outcome, more so than many
other areas of law,” she says. “So many
doctrines in copyright are unpredictable.”
A few years ago, Josh Rosenkranz, who
heads Orrick‘s Supreme Court and appellate
litigation practice, approached her about a
case he was certain the justices would take—
The publisher had filed a federal suit
against Thailand native Supap Kirtsaeng in
2008 for a clever bit of arbitrage. Kirtsaeng
noticed Wiley textbooks were much
cheaper in his homeland than in the United
States, so he imported foreign-edition
textbooks into the United States.
This was not a new issue for the nation’s
highest court. Just two terms before, the
justices had split 4-4 on the issue of so-called gray-market goods in a case known
as Costco Wholesale Corp. v. Omega S.A.
Hurst dreamed up a fresh textual
interpretation of the Copyright Act, arguing
that, once a physical copy of a copyrighted
work is made and sold outside the U.S.
with the copyright owner’s permission, the
copy may be resold in the U.S. without
infringing the owner’s copyright.
“We were willing to slog through 100
years of legislative debate and case law,”
she says. “It was a combination of guts
and really hard work that resulted in a
fresh approach that really clicked. The
justices asked a lot of questions about the
It was all about the framing, and
the judges voted 6-3 in her favor in
2013—forging an unusual coalition of
conservative and liberal justices that had
never happened in a copyright case. “We
adopted an analytic framework somewhat
conservative to reach an outcome that was
in many ways liberal,” Hurst says.
It was inspirational for her to see three
women on the Supreme Court.
“If you go all the way back to my degree
in business administration, one of the things
that I studied was organizational behavior,”
she says. “There is a fair amount of social-scientific research that suggests that it takes
three women in an institution to really have
effect on outcomes. I don’t want to suggest
that Justice Ginsberg wasn’t being heard
before Justice Sotomayor and Justice Kagan
came along, but just knowing about that
made me feel that we had really gotten
to the point where women’s voices were
making a difference.”
HURST HAS WANTED TO BE A LAWYER
Her first 18 months were spent helping
since age 6. She was also drawn to
technology and started in the systems-
analysis program at Miami University as
an undergrad, then veered course. “I was
like a lot of women who got off the path of
STEM [science, technology, engineering,
math],” she says. “I had a great technical
facility, but I quickly found myself in an
She switched to a dual major of business
administration and philosophy, which
included feminist thought. “Feminism has
gotten a bad name,” she says, “but it comes
from a fundamental sense of fairness.”
Hurst continued on to law school as
planned, though she wishes she had
also completed the formal technology
background, from a marketing
perspective, given the kinds of cases she
handles. She graduated from New York
University School of Law in 1990, then
joined Howard Rice Nemerovski Canady
Falk & Rabkin, where she immediately
sank her teeth into the emerging role of
technology in copyright law.
to represent the maker of Game Genie,
a device that provided a way to adapt
the Nintendo Entertainment System.
Players could modify video games by
entering codes to, for instance, make their
characters invincible. Nintendo didn’t like
the idea of players tinkering with its games.
The case, Nintendo of America Inc. v.
Lewis Galoob Toys Inc., appealed to Hurst
because it involved every great disputed
doctrine of copyright law and was at the
intersection of technology and copyright.
Plus, she’s a big gamer herself.
During a two-week bench trial, Hurst
says, she conducted one of her earliest
depositions on a Sunday evening with a
surprise Nintendo witness, but her partners
felt it would be unfair to the client to have
a first-year associate cross-examine a
witness in a major trial. Hurst understood
but was disappointed.
Then an odd thing happened. On the
following Monday, Judge Fern M. Smith
asked the two Howard Rice partners who
were heading the case, “When is Ms. Hurst
going to get to do something?” The next day,
she was allowed to perform her first-ever
cross-examination and succeeded in getting
the entire testimony stricken from the record,
beginning a long string of successful cross-examinations throughout her career.
The case of which Hurst is most proud
was Mattel Inc. v. Walking Mountain
Productions in 2003. Her client, a
Utah artist, had produced a series of
photographs titled Food Chain Barbie,
in which he posed nude Barbie dolls
in danger of being attacked by vintage
kitchen appliances. “For a feminist like me,
the opportunity to vindicate criticism of
Barbie was hard to pass up,” Hurst says.
She brought an expert witness, the
author of a book about the history of Barbie,
“framing” her client’s photographs as
commentary about a cultural icon. “We
got a fee award in the case, and that sent a
message to Mattel they had to back off some
of their overzealous protection of Barbie and
leave room for commentary,” she says.
Hurst has a distinctive voice—clear and
loud and always seeming on the verge
of an ironic observation. She delights
in pointing out all the tchotchkes in her
office, including her favorite, the Five-Moon
Salute, a photograph of five dolls sticking
their bare butts into the air, a memento
from the Walking Mountain case.
Flagel talks about how Hurst uses her
voice in the courtroom. “It’s natural and
doesn’t seem forced,” he says, “but she
makes it clear when you should be paying
attention. She can articulate questions in a
way that simplifies the matter and draws just
the point she wants to make, which is very
hard to do, especially in complex cases.”
Hurst thinks of her style as straightforward.
“What I project, more than anything, is
authenticity to judge and jury,” she says.
“What you see is what you get. I am not a big
actor or poser who uses different approaches
for different things. I start with what I believe
is right and work out from there to craft an
argument. I call it like I see it.”
Lawrence R. Katzin, vice president and
associate general counsel for Dish Network
Corp., agrees with Hurst’s self-description.
“She makes her point with force, but does
it with her authenticity rather than by
pounding on the table,” he says, “because
she’s so knowledgeable.”