Date: Wed, 3 Mar 2004 19:12:18 -0500
From: Barbara Hoffman artlaw@xxxxx
To: Joy Garnett joyeria@xxxxx
Cc: Susan Meiselas xxxxx
Subject: Copyright Infringement of Susan Meiselas Nicaragua. Esteli. 1979
By Email & United States Postal Service 3 March 2004
New York, New York xxxxx
FOR SETTLEMENT PURPOSES ONLY
Re: Copyright Infringement of Susan Meiselas’ “Nicaragua. Esteli. 1979”
Dear Ms. Garnett:
I respond to your letter of February 27, 2004 in connection with the above
At the outset, let me say that it was never Ms. Meiselas intention to
authorize reproductions of Molotov (the “Infringing Image” or “Molotov”) in
digital format. In an effort to resolve this matter and because Ms.
Meiselas does not wish to do battle with a fellow artist, she was willing
to license the use of the “Nicaragua. Esteli. 1979” (the “Copyrighted
Image”) to create a derivative work on condition of the following credit:
“Based on an original image by Susan Meiselas. Copyright Susan Meiselas /
Magnum Photos, 1978.” At no point did Ms. Meiselas authorize the display
of Molotov on various websites, either of the gallery or First Pulse
Projects or your own website. The reproduction, transmission and display
of the Infringing Image without Ms. Meiselas’s permission or authorization
constitutes willful infringement in violation of the Copyright Act 17
U.S.C. Section101 et seq. (1976, as amended). My client’s offer to you to
settle this matter on the terms and conditions as set forth in my letter of
February 25, 2004 is withdrawn.
This letter constitutes a formal demand that you cease and desist from
display of Molotov on the websites mentioned above. Any reproduction of
Molotov in any medium is a willful infringement.
In your letter to me, you claim that you were not aware of Ms. Meiselas’s
photograph until we sent you the Copyrighted Image and the registration
statement. In an effort to escape a claim of willful infringement, you
claim to have obtained the partial image from an unnamed anarchist website.
Please provide us with the URL address of this “anarchist” website and the
date the image was taken. Even if this claim is substantiated, willful
infringement occurred on receiving notice from us and your continued
reproduction and display of the Infringing Image.
Your first defense to the piracy of Ms. Mei Your letter is replete with
inconsistencies and to the extent that it attempts to justify piracy of Ms.
Meiselas’s work, it fails entirely. Meiselas’s work is as follows: “Since
my work deals with real people and real situations, I must, by the nature
of my work, refer to photographs.” There is, of course, another way of
achieving your goal given the nature of your work. For example, Ms.
Meiselas lived in Nicaragua for one year at the time the photograph was
taken and continued to live there for nearly ten years after that. Ms.
Meiselas did not just happen to be on the scene to record. It was not
just happenstance that led to being in the right place at the right time.
I am sorry that you are hurt by the suggestion that you have engaged in
copyright infringement. This is exactly what we are talking about. To
establish an infringement of copyright, a plaintiff must show both
ownership of copyright and that a copy of the protected material was made
without authorization. Feist Publications, Inc. V. Rural Telephone Service
Co., 113 L. Ed. 2d 358, 111 S. Ct. 1282, 1296 (1991). Your suggestion that
news photographs are in a different category of photography is simply not
supported by the case law. There are very few instances in which the court
has held that news photographs were not entitled to the same protection as
other photographs, which have long been protected under the copyright law.
Section 106(1) of the Copyright Act provides the owner of a copyright with
the exclusive right to "reproduce the copyrighted work in copies . . ." 17
U.S.C. @ 106(1). This provision has been interpreted as granting the
copyright owner the exclusive right to control reproductions in other
mediums. Section 106(2) further gives the copyright owner the exclusive
right to "prepare derivative works" from is copyrighted material. 17
U.S.C. @ 106(2).
Ms. Meiselas is the registered copyright owner of the Copyrighted Image.
You have directly copied or paraphrased significant portions of the
Copyrighted Image in creating Molotov. In fact, Molotov is a verbatim blow
up of one section of the Copyrighted Image. Molotov is literally similar
to the Copyrighted Work and as such infringes upon Ms. Meiselas’s exclusive
right to reproduce the work.
Because Molotov is based on the Copyrighted Images its is a derivative
work. The “protection of derivative rights extends beyond mere protection
against unauthorized copying to include the right to make other versions
of, perform, or exhibit the work.” Mirage Editions, Inc., v. Albuquerque
A.R.T. Co., 856 F.2d 1341, 1343 (9th Cir. 1988), cert. denied, 489 U.S.
1018, 103 L. Ed. 2d 196, 109 S. Ct. 1135 (1989). By creating the Infringing
Image, you have infringed upon Ms. Meiselas’s exclusive derivative rights
in violation of @ 106(2). Moreover, no copier may defend the act of
plagirism by pointing out how much of the copy she has not pirated. C.
Shelton v Metor Goldwyn Pictures Copr. 81 F. 2d 49 (2nd Cir) (1936)
1. Susan Meiselas owns a valid copyright in “Nicaragua. Esteli. 1979.”
I have provided you with a certificate of registration, which indicates
that Ms. Meiselas has complied with all copyright formalities including
registration. If your point of principle is that Ms. Meiselas can not
properly claim copyright in the image you have, you are unequivocally wrong.
The Court’s reasoning in the case of Time, Inc. v Bernard Geis Associates
293 F Supp. 130 (S.D. N.Y. 1968) is instructive.
It is said for defendants that the pictures are simply records of what took
place, without any "elements" personal to Zapruder, and that “news" cannot
be the subject of copyright.
The Zapruder pictures are "photographs" of an event. The Copyright Act
provides (17 U.S.C. @@ 4, 5(j)) that "Photographs" may be the subject
matter of copyright. If this were all to be considered, it would seem
clear that the pictures here were properly copyrighted because Congress has
expressly made photographs the subject of copyright, without any limitation.
The copyright provision for photographs first appeared in an Act of July 8,
1870 which became Section 4952 of the Revised Statutes and is now Section
5(j) of Title 17 of the Code.
This provision first came before the Supreme Court in
Burrow-GilesLithographic Co. v. Sarony, 111 U.S. 53, 4 S. Ct. 279, 28 L.
Ed. 349 (1884).The question was whether a studio photograph of Oscar Wilde
could be the subject of copyright. It was assumed that Section 4952
applied to all photographs. The argument was made, however, [**32] that
Congress could not constitutionally do so because photographs are not
"writings" of which the photographers are"authors", as the quoted words
are used in the Constitution (Art. I, @ 8, cl. 8). The argument was that
photographs were "merely mechanical" and involved no "novelty, invention or
originality" (111 U.S. at 59, 4 S. Ct. at 279). The Supreme Court declined
to say whether copyright could constitutionally be granted to "the ordinary
production of a photograph" (111 U.S. at 59, 4 S.Ct. at 282). It found that
the photograph in suit had involved the posing of the subject and a choice
of costume, background, etc. The Court held that the photograph was a
writing of which the photographer was the
author and that the Congress could constitutionally make such
photograph the subject of copyright. This left open whether an ordinary
photograph of a real life object could constitutionally be a proper subject
The question was again before the Supreme Court in Bleistein v.Donaldson
Lithographing Co., 188 U.S. 239, 23 S. Ct. 298, 47 L. Ed. 460 (1903).The
works were chromolithographs (pictures printed by a special process) of
certain groups performing in a circus. The Court, by Mr. Justice Holmes,
held that such pictures had been constitutionally made subjects of
The Court found it "obvious" that the result could not be affected by the
fact that the pictures represented "actual groups -- visible things" and
that such pictures "drawn from the life" (as opposed to a "composed"
subject) could be copyrighted. In this connection, the Court declared:
"Others are free to copy the original. They are not free to copy the
copy." (188 U.S. at 249, 23 S.Ct. at 299). And later: "The least
pretentious picture has more originality in it than directories and the
like, which may be copyrighted" (188 U.S. at250, 23 S. Ct. at 300).
Judge Learned Hand believed that any photograph could be the subject of
copyright because in Bleistein the Supreme Court had ruled that "no
photograph, however simple, can be unaffected by the personal influence of
the author, and no two will be absolutely alike". Jewelers Circular
Publishing Co. v.Keystone Pub. Co., 274 Fed. 932, 934 (S.D.N.Y.1921),
affirmed 281Fed. 83 (2d Cir. 1922). Judge Hand in the same opinion said:
“... under section 5(j) photographs are protected, without regard to the
degree of 'personality' which enters into them. At least there has been no
case since 1909 in which that has been held to be a condition. The
suggestion that the Constitution might not include all photographs seems to
me overstrained. Therefore, even if the cuts be deemed only photographs,
which in these supposed cases they are, still I think that they and the
illustrations made from them may be protected."
Mr. Justice Brandeis, in a dissenting opinion, stated: "The mere record of
isolated happenings, whether in words or by photographs
not involving artistic skill, are denied [copyright] protection".
International News Service v.Associated Press, 248 U.S. 215, 254, 39 S. Ct.
68, 78, 63 L. Ed. 2d 211 (1918; the "Associated Press" case). The
reference to photographs was not necessary to the point being made and in
any event it seems clear that Mr. Justice Brandeis was mistaken. None of
the cases cited to support his
statement had anything to do with photographs, other than Bleistein and
Burrow-Giles, which have already been considered.
The commentators, or at least most of them, have concluded that any
photograph may be the subject of copyright. For example, Nimmer on
Copyright, page 99, after explaining that the conclusion of Judge Learned
Hand has become "the prevailing view", goes on to say:
...any (or as will be indicated below, almost any) photograph may claim the
necessary originality to support a copyright merely by virtue of the
photographers' personal choice of subject matter, angle of photograph,
lighting and determination of the precise time when the photograph is to be
taken. Thus a photograph of the New York Public Library was held to
exhibit the necessary
The exceptions indicated by Nimmer's parenthetical "almost any" are not
relevant in this case.
A law review article has dealt with this question in part as follows
(Gorman,Copyright Protection for the Collection and Representation of
Facts, 76 Harv.L.Rev.1569, 1597-1598 (1963):
There is, no doubt, some element of personality -- the choice of subject,
the framing of it in the camera viewer, the decision when to shoot -- in
the taking of a snapshot...its visual appeal, its partaking of the nature
of artistic work, seems to have deterred courts from sitting as critics on
the degree of artistic merit, skill, or effort embodied[**36] in a
photograph. Another reason for granting copyright protection to the simple
photograph is the familiar saw which tells us that one picture is worth a
thousand words. If it can be as instructive as a lengthily written
description of the same scene, a photograph advances our knowledge of the
useful arts and sciences and enhances our understanding of historical
occurrences and natural events, just as much as does the written
description. If the latter can be copyrighted because inursuance of the
constitutional purpose, why not photographs too, no matter how studied or
how extemporaneous they may be?
There is little argument in the Second Circuit that a photograph has ample
originality to be copyrighted.
The arguments which you are trying to make failed completely in the case
most apt to the present one, Rogers v Koons 960 F. Supp. 2d. 301 (S.D.N.Y.
1992). In that case as well, Jeff Koons tried to claim that Art Roger
photographs were not the subject of copyright protection and that all that
he took from the photographs were uncopyrighted facts. The Court rejected
this argument in its entirety and gave protection to the Rogers photograph
entitled String of Puppies.
You also claim to be interested in an important public dialogue in the
event you recorded, perhaps equating Ms. Meiselas photograph to the
Zapruder photograph of the Kennedy assassination. While the Second Circuit
has "acknowledged in passing the conceivable occurrence of some 'rare,'
'almost unique' circumstance, such as those surrounding the Zapruder film
[of President Kennedy's assassination], in which ‘it is at least arguable
that the informational value of [the] film cannot be separated from the
photographer's expression, . . . thereby indicating that both should be in
the public domain,' Iowa State University Research Foundation,Inc. v.
American Broadcasting Cos., Inc., 621 F.2d 57, 61 n.6 (2d Cir. 1980),[it
has] also stated the general rule that 'conflicts between interests
protected by the first amendment and the copyright laws thus far have been
resolved by application of the fair use doctrine,' Wainwright
Securities,Inc. v. Wall Street Transcript Corp., [558 F.2d 91,] 95." Roy
Export Co.Establishment of Vaduz, Liechtenstein v. Columbia Broadcasting
System, Inc., 672 F.2d 1095, 1100 (2d Cir.), cert. denied, 459 U.S. 826, 74
L. Ed. 2d 63,103 S. Ct. 60 (1982).
However, even though Mr. Zapruder was an accidental bystander at this
event, the court still awarded copyright protection to his now famous
photograph sequence. However, by your own admission, you take the
principal figure out of context and therefore the event allegedly reported
is not discussed at all in your painting. Finally, while Ms. Meiselas’s
image certainly can be classified as photojournalism, it is not a news
photograph having first appeared in her book Nicaragua. June 1978 July
1979. It has little to do with your goal to represent disasters etc. as
portrayed in the mass media. Even assuming Ms. Meiselas’s image were a
news photograph, there is absolutely no legal basis in the case law to
support your rather unique theory that news photographs are in a different
category of photography and should not be protected.
2. GARNETT’S COPYING WAS NOT FAIR USE
The fair use doctrine "permits other people to use copyrighted material
without the owner's consent in a reasonable manner for certain purposes."
Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992). Recognized at common
law, see e.g., Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (Story,
J.), the doctrine is now codified in section 107 of the 1976 Copyright Act,
17 U.S.C. @ 107 (1994). Section 107 provides an illustrative list of the
purposes for which the doctrine may be invoked, including "comment" and
"criticism," id., as well as a now familiar list of factors that courts
should consider in determining whether a use is "fair." These factors are
(1) the purpose and character of the use, (2) the nature of the copyrighted
work, (3) the amount and substantiality of the work used, and (4) the
effect of the use on the market for the original.
The Supreme Court case of Campbell v Acuff-Rose Music. Inc. 114 S. Ct.
1164 (1994) clarified the fair use defense in general and its particular
application to parodies. As a general matter, the Court emphasized that the
fair use determination "calls for case-by-case analysis," and "is not to be
simplified with bright-line rules.” The Court made clear that all four of
the statutory factors "are to be explored, and the results weighed
Campbell also significantly illuminated the proper application of the first
fair use factor, the purpose and character of the use. The focus of this
inquiry, the Court explained, should be on whether the copying work "merely
'supersedes the objects' of the original . . . or instead adds something
new, with a further purpose or different character, altering the first with
new expression, meaning, or message," (quoting Folsom, 9 F. Cas. at 348)
(citations omitted; brackets in original). The Court considered this
standard appropriately captured by Judge Leval's helpful adjective
"transformative." (quoting Pierre N. Leval, Toward a Fair Use Standard, 103
Harv. L. Rev. 1105, 1111 (1990)).
The Court's emphasis on an aggregate weighing of all four fair use factors
represented a modification of the Court's earlier view that the fourth
factor, effect on the potential market for, or value of, the original, was
"the single most important element of fair use." Harper & Row, 471 U.S. at
566, a characterization conspicuously absent from the Campbell opinion. See
American Geophysical Union v. Texaco Inc., 60 F.3d 913, 926 (2d Cir. 1995).
Rather than accord the fourth factor primacy, the Court explicitly noted
that "the importance of this factor will vary, not only with the amount of
harm, but also with the relative strength of the showing on the other
factors." Campbell, 510 U.S. at 590 n.21.
The Court stated:
In saying this, however, we have some concern about the ease with which
every purported parodist could win on the first factor simply by pointing
out some feature that contrasts with the original. Being different from an
original does not inevitably "comment" on the original.
Factor 1: The Purpose and Character of the Use
In focusing the first factor inquiry upon the "transformative" nature of
the use, the Court explicitly abandoned the statement in Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. 417, 78 L. Ed. 2d 574,
104 S. Ct. 774 (1984), that "every commercial use of copyrighted material
is presumptively . .. unfair," id. at 451. See Campbell, 510 U.S. at
583-85. Instead, the Court recalled its statement in Harper & Row,
Publishers, Inc. v. Nation Enterprises, 471 U.S.
539, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985), that commercial use is only
"'a separate factor that tends to weigh against a finding of fair use.'"
Campbell, 510 U.S. at 585 (quoting Harper & Row, 471 U.S. 585. at 562).
In addition, there must be some reason for copying the expression, some
evident comment on Ms. Meiselas’s image. Your use is not at all
transformative but for the very purpose of the original. The reasoning of
the Court in Rogers v Koons is equally relevant to this situation.
We think this is a necessary rule, as were it otherwise there would be no
real limitation on the copier’s use of another’s copyrighted work to make a
statement on some aspect of society at large. If an infringement of
copyrightable expression could be justified as fair use solely on the basis
of the infringer’s claim to a higher or different artistic use - without
insuring public awareness of the original work - there would be no
practicable boundary to the fair use defense. Koons claim that his
infringement of Rogers’ work is fair use solely because he is acting within
an artistic tradition of commenting upon the commonplace thus cannot be
accepted. The rule’s function is to insure that credit is given where
credit is due. By requiring that the copied work be an object of the
parody there is an original and separate expression, attributable to a
different artist. This awareness may come from the fact that the copied
work is publicly known or because its existence is in some manner
acknowledged by the parodist in connection with the parody. Of course,
while our view of this matter does not necessarily prevent Koons’
expression, although it may, it does recognize that any such exploitation
must at least entail “paying the customary price.” Harper & Row
Publishers, Inc., 471 U.S. at 562.
In this case, even if there is some political critique of society, it is
difficult to find any comment on Ms. Meiselas’s work. The first factor of
the fair use doctrine cuts against a finding of fair use. Molotov was done
primarily for a profit-making motive and did not constitute any social
critique. To the extent, if any, Molotov has any emotional power, it is
solely derived from the Copyrighted Image. Your figure pirates the same
purpose as Ms. Meiselas’s figure i.e. the extremity of the figure’s
emotions caused by a political situation.
Factor 2: The nature of the copyrighted work
The next fair use factor asks what is the nature of the work that has been
copied. Where the original work is factual rather than fictional the scope
of fair use is broader. See New Era Publications, Int'l. v. Carol
PublishingGroup, 904 F.2d 152, 157, 14 U.S.P.Q.2D (BNA) 2030 (2d Cir.),
cert. denied, 112 L. Ed. 2d 251, 111 S. Ct. 297 (1990). Whether the
original is creative, imaginative, or represents an investment of time in
anticipation of a financial return also should be considered. MCA, Inc. v.
Wilson, 677F.2d at 182. The analogy to Roger v Koons is again appropriate
. As the Court stated:
Here "Puppies" was a published work of art. As an original expression it
has more in common with fiction than with works based on facts, such as,
for example, biographies or telephone directories. Since "Puppies" was
creative and imaginative and Rogers, who makes his living as a
photographer, hopes to gain a financial return for his efforts with this
photograph, this factor militates against a finding of fair use...
You seem to argue that news photographs are entitled to less protection and
therefore, Factor 2 favors the Infringing Work. Judge Kaplan in Monster
Communication v Turner Broadcasting 933 F. Supp 490 (S.D.N.Y. 1996) stated:
...Anyone who has seen any of the great pieces of photojournalism for
example, Alfred Eisenstadt's classic image of a thrilled sailor exuberantly
kissing a woman in Times Square on V-J Day and the stirring photograph of
U.S. Marines raising the American flag atop Mount Surabachi on Iwo Jima --
or, perhaps in some eyes, more artistic, but nevertheless representational,
photography -- such as Ansel Adams' work and the portraits of Yousuf Karsh
must acknowledge that photographic images of actual people, places and
events may be as creative and deserving of protection as purely fanciful
creations. Nevertheless, history has its demands. There is a public
interest in receiving information concerning the world in which we live.
The more newsworthy the person or event depicted, the greater the concern
that too narrow a view of the fair use defense will deprive the public of
significant information. Moreover, only a finite number of photographers
capture images of a given historical event. Hence, without denying for a
moment the creativity inherent in the film clips of actual events relating
to the Zaire fight, the degree of protection that properly may be afforded
to them must take into account that too narrow a view of the fair use
defense could materially undermine the ability of other Ali
biographers to tell, in motion picture or perhaps still photographic form,
an important part of his story. See, e.g., Rosemont Enterprises, Inc., 366
F.2d at 307. This of course is not to say that historical film footage
loses all copyright protection, only that its
character as historical film footage may strengthen somewhat the
hand of a fair use defendant as compared with an alleged infringer of a
fanciful work or a work presented in a medium that offers a greater variety
of forms of expression...
This is hardly the case here where you admit that the figure is removed
from content, cause, time and place. This situation is analagous to Koons:
Factor 3: The amount and substantiality of the portion used in relation to
the copyright work as a whole
As Judge Leval noted, ‘the third and fourth factors direct a court’s
attention to how much of the work can be taken and how serious a harm has
the taking inflicted on the value of the original work. The amount that
can be copied as a matter of fair use is a logical function of the first
two factors, the purpose of the use and the nature of the work’. For
private or personal use there may be occasions when the entire work may be
Normally courts look at both the quantitative and qualitative amount that
is taken. The use of a pictorial, graphic and sculptural work will usually
involve the whole work. Nevertheless, the Supreme Court in Campbell
recently held that this factor would not necessarily be determinative and
must be considered in light of the purpose and use of the new work. In
Campbell, the Supreme Court suggested that the extent of copying can
provide an insight into the primary purpose of copying, and cautioned that
there was a need for more particularized inquiry about the amount taken.
Also, the Supreme Court acknowledged in Campbell ‘the facts bearing on this
third factor will also tend to address the fourth factor of market harm’.
You acknowledge that you have taken the central, key figure in Ms.
Meiselas’s Copyrighted Image.
Factor 4: The effect of the use upon the potential market for or value of
the copyrighted work
More important in deciding whether a use is fair is whether the new work
that is complied by using the copyrighted material competes with the
original work. Prior to the Supreme Court’s decision in Campbell, lower
courts deemed this to be the most important of the four factors. The
Supreme Court in Campbell made clear, however, that it is only one of four
factors to be considered, and it is to receive no greater weight than the
The Supreme Court has also stressed the need for evidence about markets for
particularized licences - the market for potential derivative uses includes
only those that creators or original works would in general develop or
license others to develop. The four factors are not exclusive and other
relevant factors may be considered.
Although decided before Campbell, the analysis in Roger v Koons is apt.
A critical inquiry under this factor then is whether defendants Koons and
Sonnabend planned to profit from their exploitation of "Puppies" without
paying Rogers for their use of his photo that is, whether Koons' work is
primarily commercial in nature. We have already concluded that it is. In
this case, of course, the copy was in a different medium than the original:
one was a three-dimensional piece of sculpture, and the other a
two-dimensional black and white photo. But the owner of a copyright with
respect to this market-factor need only demonstrate that if the
unauthorized use[**32] becomes "widespread" it would prejudice his
potential market for his work. See id.; Harper & Row, 471 U.S. at 568. The
reason for this rule relates to a central concern of copyright law that
unfair copying undercuts demand for the original work and, as an inevitable
consequence, chills creation of such works. Hence the inquiry considers not
only harm to the market for the original photograph, but also harm to the
market for derivative works. It is obviously not implausible that another
artist, who would be willing to purchase the rights from Rogers, would want
to produce a sculpture like Rogers' photo and, with Koons' work extant,
such market is reduced. Similarly, defendants could take and sell photos of
"String of Puppies," which would prejudice Rogers' potential market for the
sale of the "Puppies" notecards, in addition to any other derivative use he
Further, in discussing this fourth factor, the leading scholar in this area
of the law uses an example that closely parallels the facts of the present
case and demonstrates the irrelevance of copying in a different medium when
analyzing this factor: a movie adaptation is made of a book. Even though
the movie may boost book sales, it is an unfair use because of the effect
on the potential sale of adaptation rights. The function of demand for
each original work of art is a relevant facet in this factor's analysis;
that is, fair use permits lyrics or music to be copied in a literary
magazine, but where the same material is published in a song sheet
magazine,purchased for playing and not simply for reading, it is an unfair
Here there is simply nothing in the record to support a view that Koons
produced "String of Puppies" for anything other than sale as
high-priced art. Hence, the likelihood of future harm to Rogers’
photograph is presumed, and plaintiff's market for his work has
It is therefore evident that all of the factors weigh in favor of Ms.
Meiselas and that Molotov cannot be defended as fair use of a copyrighted
work. Despite your lofty statements, this is simple piracy clothed in
political correctness with a studio revolutionary appropriating the work of
the photographer who captured the actual emotions conveyed Molotov.
You might make another argument that your additional commentary on the fact
that you took the work from a website itself constitutes fair use of the
work. You are of course entitled to hold whatever views you hold.
However, you must accept the legal consequences of your theories. Fair use
is an equitable defense and as such is not available in the context of an
infringing derivative work.
Under 17 U.S.C. @ 504(b) a copyright owner is entitled to recover actual
damages suffered as a result of the infringement as well as apportioned
profits. The section states: "In establishing the infringer's profits, the
copyright owner is required to present proof only of the infringer's gross
revenue, and the infringer is required to prove his or her deductible
expenses and the elements of profit attributable to factors other than the
copyrighted work." Alternatively, in place of actual damages and
apportioned profits, a copyright owner may elect to recover an award of
statutory damages. See 17 U.S.C. @ 504(c).
Assuming Ms. Meiselas and you can agree to settle this matter for a
reasonable license fee of $2,000.00, Ms. Meiselas is still amenable to
authorizing the creation of the derivative work of the painting on payment
by you and the gallery, to her of this fee. Molotov may not be displayed
on any websites nor reproduced in any manner and the credit requirement is
Please contact me on receipt of this letter to discuss how we may resolve
this without further legal proceedings.
Please note that this letter is without prejudice to Ms. Meiselas’s legal
and equitable rights and remedies, all of which are expressly reserved,
including the fact that the continued uses discussed in this letter
constitute continuing, willful infringement.
cc: Susan Meiselas
Debs & Co.
Barbara T. Hoffman, Esq.
The Law Offices of Barbara T. Hoffman
New York, NY 10023