Entertainment Law Matters

When a photographer sells a “limited edition” of a photograph, does that mean that she cannot later sell any additional prints of that photograph, even if the reprints differ in size and medium from the original edition?  The answer is no, according to a federal judge who recently dismissed a collector’s lawsuit claiming that artist William Eggleston violated the law by selling digitized reprints of some of his most popular photographs. The decision should comfort artists wishing to create new editions of prior work, and is a cautionary tale for collectors interested in works sold in multiples. Continue reading »

The Second Circuit has affirmed dismissal of photographer Janine Gordon’s copyright infringement claims against photographer Ryan McGinley and several other defendants who allegedly displayed McGinley’s work, including Frankfurt Kurnit client Ratio 3 Gallery. Continue reading »

Hill v. Public Advocate of the United States, No. 12 Civ. 2550 (D. Colo. Sept. 26, 2012).

On Wednesday, September 26, 2012, married couple Brian Edwards and Thomas Privitere, along with Kristina Hill, their Brooklyn-based photographer, filed a lawsuit against an anti-gay rights organization named Public Advocate of the United States (“PA”).  The same-sex couple alleges that PA misappropriated their identities by copying a photograph that Hill had taken of them posing and kissing by the Brooklyn Bridge shortly after their engagement,

and incorporating it into two flyers distributed during local political races in Colorado:

The two individuals referred to in the posters – Jean White and Jeffrey Hare – were Republican primary candidates who had supported a bill that, if passed, would have granted same-sex couples the right to enter into civil unions.  If it weren’t clear from the bold lettering, the blood-red banner framing the words, the quotes around “family values” or the suggestive question marks – PA does not support same-sex marriage or civil unions.  Continue reading »

One of photographer William Eggleston’s top collectors recently filed a lawsuit seeking to stop the artist from selling larger, digital reprints of some of his best-known, limited edition photographs.  The lawsuit claims that the artist has no right to create these new works, even though they are in a medium that did not exist when he created the vintage prints and are much different in size.

Eggleston is known as a pioneer of color photography.  Some of his most iconic works date from the early 1970s and include images of ordinary and even mundane aspects of American life.  Eggleston recently created larger, digital versions (the “Reprints”) of eight of his most popular photographs and sold them for record prices at auction last month, including $578,500 for a single work. 

Not all of his collectors love these new works.  Last week, Jonathan Sobel, an avid Eggleston collector, filed a lawsuit in federal court in Manhattan against Eggleston and the trustees of his artistic trust.  Sobel owns more than 190 Eggleston photographs and in 2009 sponsored a career retrospective for the artist that was exhibited at the Whitney Museum of American Art. 

In his Complaint, Sobel claims that he owns limited edition copies of each of the eight photographs that were used to create the Reprints.  Sobel alleges Eggleston created these “vintage” prints from photographic negatives or slides.  He claims that his photographs were part of limited editions, which is evidenced by the fact that the prints are individually numbered.  He claims that he bought these prints not from Eggleston himself, but rather from two auction houses and a prominent gallery in the past several years. 

Sobel’s Complaint alleges five claims against the Eggleston defendants: (i) violation of New York statutory law governing the sale of editioned works; (ii) fraudulent misrepresentation against Eggleston only; (iii) negligent misrepresentation; (iv) unjust enrichment; and (v) promissory estoppel.  As damages, Sobel seeks the difference between the value of his collection of Eggleston photographs before and after the Reprint sales.  He also seeks punitive damages, as well as injunctive relief prohibiting the defendants from any future sales of the Reprints or any reprints of other vintage photographs.

Sobel does not allege that any specific market harm for the vintage prints has occurred.  He does not, for example, allege that he recently tried to sell some of his prints, and they failed to sell at historic sales prices.  Rather, Sobel’s case appears to be based on the perceived fear that the existence of additional versions of these images will damage the market for his collection of vintage photographs.  According to Sobel’s Complaint: “the value of Sobel’s photographs from the Limited Editions has been diminished by the very existence of additional copies of the same image now in the art market.”

While the Reprints have garnered record sales figures, it appears that the vintage prints are also faring well.  For example, last month, a poster-sized print of a 1973 photograph depicting a painted sign for “Peaches!” on a tin roof sold at auction for $422,500.  A few weeks later, a vintage print of the same work sold for $242,500.  The price for the vintage photograph was well above the auction estimate of $70,000 to $90,000.  Additionally, that figure is consistent with the historical sales figures for Eggleston’s vintage prints, which according to Sobel’s Complaint range from tens of thousands of dollars to over $250,000 per photograph.

While Eggleston has not yet had an opportunity to defend the lawsuit, according to the Wall Street Journal his lawyer has stated that the case has “no merit.”  Even after selling a work of art, the artist retains the copyright in the image, including the reproduction rights.  According to Eggleston’s attorney, the artist was within his rights to “create new editions in new formats” and no law “prevents an artist from creating additional works with the same image.”  

- Amelia Brankov

Last Friday, street artist Shepard Fairey pled guilty to one count of criminal contempt for destroying documents, manufacturing evidence and other misconduct in his civil suit against the Associated Press (“AP”).

In the Fairey-AP case, the AP claimed that Fairey and his licensee Obey Clothing committed copyright infringement by using an AP photograph of then-Senator Barack Obama on posters and apparel without crediting or compensating the AP.  That case settled last year. Continue reading »

If you are an author, musician, artist, or other creator of intellectual property (or the heir to such a person), it’s a good time to learn whether you are taking full advantage of your ability to “recapture” certain grants of rights made years ago.  While everyone’s business deals are different, we urge you to consider the quick summary below: you may have untapped sources of valuable intellectual property.

The law in brief. To help protect artists and their families from deals that, in hindsight, may not have been optimal, the Copyright Act of 1976 provides that certain persons may terminate grants of copyright interests — including licenses and assignments — after the passage of specified time periods. This means that in certain circumstances, grants such as a license to a publisher of the right to publish a book, a screenwriter’s sale of rights to a movie studio, or a musician’s license of music publishing rights can be terminated irrespective of the terms of any contract. Continue reading »

A federal court recently issued a preliminary injunction prohibiting a website operator from displaying the only available photograph of a painting entitled Salvator Mundi, which was recently attributed to Italian Renaissance painter Leonardo da Vinci.  The decision is a win for the owner of the photograph, who licensed it to museums and publishers for exhibitions, prints and other art merchandise. Continue reading »

To what extent will a U.S. court entertain copyright claims involving a foreign defendant and its activities abroad? A recent federal district court decision examines this question. In Rundquist v. Vapiano SE, Swedish photographer Ewa-Marie Rundquist alleged that Vapiano, an international restaurant chain, was using her photographs without permission as a “central décor element” in its restaurants around the world and on its website, giving rise to claims of copyright infringement under the laws of the U.S. and fifteen foreign countries. Continue reading »

A federal court in California recently found the central figure in Banksy’s street-art documentary entitled Exit Through the Gift Shop liable for copyright infringement.  The court found that defendant Thierry Guetta, a/k/a Mr. Brainwash, infringed upon plaintiff Glen Friedman’s copyright in his famous photograph (the “Photograph”) of the hip hop music group Run-DMC. 

In 1985, Mr. Friedman took the Photograph of Run-DMC’s three members.  The iconic image depicts the three artists standing shoulder-to-shoulder wearing black stetson hats. 

Guetta first appears in the Banksy film as a compulsive amateur videographer who shot numerous graffiti artists at work under cover of night.  As the film progresses, Guetta himself transforms into a street artist, operating under the moniker “Mr. Brainwash.”  In 2008, he hosted a Los Angeles art show entitled Life Is Beautiful to showcase his work.    

In the copyright infringement lawsuit Friedman brought against him, Guetta admitted downloading the Run-DMC Photograph from the internet, and also that he created four categories of artworks that incorporated aspects of the Photograph.  For example, Guetta combined an image of two of the three artists from the Photograph with a photograph of a 19th century couple.  For another work entitled “Broken Records,” Guetta eliminated the Photograph’s background, leaving the image of the trio.  He then projected the image onto a large piece of wood, painted on the wood, and glued 1,000 pieces of LPs onto the wood.  In another series of works, Guetta made a stencil from a copy of the Photograph and spray painted the stencil image onto canvases with different backgrounds. Continue reading »

Recently, a federal judge held famed “appropriation artist” Richard Prince and his gallerists liable for copyright infringement for Prince’s use of another’s photographs in his works.  The decision is a blow to Prince and his gallerists and may lead to a chilling effect on so-called “appropriation art.”

In 2008, photographer Patrick Cariou sued Prince and his gallerists, Gagosian Gallery, Inc. and Lawrence Gagosian (collectively, “Gagosian”).  Cariou is a professional photographer who took portraits of Rastafarians in Jamaica over the course of six years, which he published in a book entitled Yes Rasta.  In his Complaint, Cariou alleged that Prince committed copyright infringement by including images from Yes Rasta in Prince’s series of paintings entitled Canal Zone (2007).  Cariou alleged that Gagosian infringed his copyrights by displaying, advertising and selling the Canal Zone paintings.  

Twenty eight of the twenty nine paintings in the Canal Zone series include images from Yes Rasta.   Some of the paintings consist largely of images taken from Cariou’s book, which Prince collaged, enlarged, cropped, tinted and/or over-painted.   Other paintings incorporate smaller portions of the photos as collage elements and also include original painting and photos taken from other sources.  

After discovery, both sides moved for summary judgment.  The defendants sought a determination that Prince’s use of Cariou’s photographs constituted fair use under the Copyright Act.  Cariou sought summary judgment in his favor on the issue of liability for copyright infringement. 

On March 18, 2011, United States District Judge Deborah A. Batts ruled on the parties’ cross-motions.  She held that: (i) Cariou’s photos were entitled to copyright protection and (ii) the defendants’ infringing use of the photographs was not fair use.   Continue reading »