[snail mailed/faxed letter dated February 24, 2004]

 

Date: Thu, 26 Feb 2004 15:50:44 -0500

From: Barbara Hoffman artlaw@xxxxx

To: joyeria@xxxxx

Cc: smeiselas xxxxx

Subject: Re: Copyright Infringement

 

By Email                                                        26 February 2004

 

Debs & Co. & Joy Garnett

525 West 26th Street

Second Floor

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

Image”).

 

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

Act.

 

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

expression.

 

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

writing.

 

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.

 

Sincerely yours,

 

Barbara T. Hoffman, Esq.

 

The Law Offices of Barbara T. Hoffman

xxxx

New York, NY

 

 

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