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

 

Joy Garnett

xxxxx

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

captioned matter.

 

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February 25, 2004 is withdrawn.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

of copyright.

 

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

copyright.

 

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

originality.

 

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

together."

 

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

copied.

 

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

others.

 

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

might plan.

 

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

use.

 

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

 been prejudiced.

 

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

the same.

 

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.

 

Sincerely yours,

 

Barbara Hoffman

 

cc:     Susan Meiselas

       Debs & Co.

 

Barbara T. Hoffman, Esq.

 

The Law Offices of Barbara T. Hoffman

xxxxx

New York, NY 10023

 

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