[snail mailed/faxed letter dated February 24, 2004]
Date: Thu, 26 Feb 2004 15:50:44 -0500
From: Barbara Hoffman artlaw@xxxxx
Cc: smeiselas xxxxx
Subject: Re: Copyright Infringement
By Email 26 February 2004
Debs & Co. & Joy Garnett
525 West 26th Street
New York, New York 10001
Fax: (212) 643-0026
Re: Copyright Infringement
Dear Ms. Garnett:
I represent Ms. Susan Meiselas, award winning Magnum photographer in the
above captioned matter.
Ms. Meiselas is the copyright owner of all rights under the U.S. Copyright
Act of 1976 (17 U.S.C. 101 et seq., hereinafter “the Act”) in and to an
image entitled, “Nicaragua, Esteli, 1979” (hereinafter “the Copyrighted
The Copyrighted Image, or as referred to on the Debs and Co. website as
“the original image”, appeared in Ms Meiselas’s book entitled Nicaragua
from June 1978 - July 1975 Pantheon Press 1981, p.64.
The purpose of this letter is to inform you that your painting entitled
Molotov (hereinafter “the Infringing Image”), which was recently exhibited
at your gallery and used as the announcement for the invitation of the
exhibit at your gallery and continues, as of this date, to be displayed on
the Debs & Co. website, infringes Ms. Meiselas’s federal and state
intellectual property rights, principally her exclusive rights of display,
reproduction and right to make derivative works under Section 106 of the
The Infringing Image is a painted enlargement of the principal figure in
the Copyrighted Imaged. It is well recognized that a change in the medium
of expression cannot excuse an unauthorized use of a copyrighted image.
Similarly, that the unauthorized use of the Copyrighted Image cannot be
justified as fair use under Section 107 of the Act is supported by a long
line of cases. Without going into great detail, suffice it to say that in
no way can the Artist’s use of the Copyrighted Image be considered a
“legal” parody of Ms. Meiselas’s work. Rather, as the U.S. Supreme Court
recently stated in the case of Campbell v. Acuff Rose, "This is not, of
course, to say that anyone who calls himself a parodist can skim the cream
and get away scot free. In parody, as in news reporting...context is
everything, and the question of fairness asks what else the parodist did
besides go to the heart of the original."
Whilst one recognizes that artists often pay homage to other artists,
copying of this kind constitutes copyright infringement. You are simply
sailing under the flag of “piracy”, taking verbatim, protected artistic
Under the Act, Ms. Meiselas’s has the right to request that you cease and
desist from any further exhibition, display, sale or reproduction of the
Infringing Image. Nevertheless, Ms. Meiselas is willing, in this one
instance, to forgo her right to an injunction, seizure of the Infringing
Image and damages, to permit your creation of a derivative work on
acceptance by Debs & Co. and you of the following terms and conditions in
1. In any and every display and exhibition of the painting Molotov
(hereinafter “the Painting”), a credit on or next to the Painting will be
provided as follows:
“Based on an original image by Susan Meiselas.
Copyright Susan Meiselas / Magnum Photos, 1978"
2. All other rights in and to the Copyrighted Image are expressly reserved.
The Painting may not be reproduced nor derivative works made without the
prior written approval of Ms. Meiselas.
3. Two slides of the Painting, Molotov, will be provided to Ms. Meiselas.
In the interim, please see that references to the work and reproductions of
it are removed from the website.
Please note that this letter is without prejudice to Ms. Meiselas’s legal
and equitable rights and remedies, all of which are expressly reserved,
should you fail to agree to the terms and conditions as stated above.
Barbara T. Hoffman, Esq.
The Law Offices of Barbara T. Hoffman
New York, NY