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.
Salvator Mundi, Latin for “savior of the world” (the “Painting”) depicts Christ with one hand raised in blessing and another hand holding an orb. The Painting recently made a media splash when experts announced that they believed it was painted by da Vinci. The painting will be exhibited at the National Gallery in London from November 2011 to February 2012.
Working with the owners of the Painting, Salvator Mundi LLC (“SMLLC”) commissioned a fine-art photographer to shoot the restored Painting. That photographer took the photograph in question (the “Photograph”), which is in high-resolution. No one else has ever photographed the restored Painting and any future exhibition will prohibit photography. The copyright in the Photograph is held by SMLLC. SMLLC released to media outlets a low-resolution version of the Photograph in order to promote the upcoming museum exhibition.
On August 3, 2011, SMLLC sued Laura Sotka and Sean Broihier, operators of websites that displayed copies of the Photograph, for copyright infringement. SMLLC also sought a temporary restraining order and a preliminary injunction prohibiting the defendants from copying or displaying the work.
In its Complaint, SMLLC alleged that Sotka, an individual residing in League City, Texas, copied the Photograph from one of the news websites and made unauthorized copies for display on her website, www.freechristimages.org, and uploaded the image onto Broihier’s website www.fineartamerica.com. SMLLC alleged that the defendants also made the Photograph available for sale on merchandise.
Prior to filing suit, SMLLC sent a cease and desist letter. Sotka replied that the image she uploaded was in the public domain: “It is most likely that [SMLLC is] not familiar with US copyright law, but should they continue with the unlawful claim to copyright of the public domain image . . . it would give me some satisfaction to give it away. . . .”
SMLLC conceded, as it must, that the Painting, which was created hundreds of years ago, is in the public domain. SMLLC rather argued that the Photograph still enjoys copyright protection even if its subject is in the public domain. While it is settled law that photographs can be copyrightable, not all photographs are sufficiently original to enjoy copyright protection. SMLLC argued that, while copyright protection may not extend to photographs that are nothing more than “slavish” copies of the underlying work, the Photograph is not simply a copy of the Painting. According to SMLLC, the photographer had to make “countless” creative judgments that “conveyed a specific artistic impression of the Painting.”
On August 3, 2011, United States District Judge Kenneth M. Karas issued a temporary restraining order pending the court’s ruling on SMLLC’s motion for a preliminary injunction. The court set August 11, 2011 as the hearing date for the plaintiff’s motion for preliminary injunction.
On August 8, 2011, likely as the result of a settlement, the court entered a permanent injunction and judgment on consent against Broihier. That order permanently prohibits Broihier and his agents from using or displaying the Photograph in any way.
On August 11, 2011, Judge Karas held a hearing on the plaintiff’s motion for a preliminary injunction. Sotka apparently was not represented at the hearing; she has no counsel of record on file in the action. The court then issued an order granting the plaintiff a preliminary injunction. That order prohibits Sotka from “copying, distributing and publicly displaying the Photographic Work or otherwise using the Photographic Work until this Court issues a final judgment.”