DAUMAN v. THE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC.
1997 WL 337488
HENRI DAUMAN and TIME INC., Plaintiffs, – against – THE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., THE ESTATE OF ANDY WARHOL, and THE ANDY WARHOL MUSEUM, Defendants.
96 Civ. 9219 (TPG)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1997 U.S. Dist. LEXIS 8606; 43 U.S.P.Q.2D (BNA) 1221
June 18, 1997, Decided
COUNSEL: For HENRI DAUMAN, TIME INC., plaintiffs: Jeremy G. Epstein, SHEARMAN & STERLING, New York, NY.
For THE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., THE ESTATE OF ANDY WARHOL, defendants: Paul J. Hanly, Jr., Coblence & Warner, New York, NY.
For THE ANDY WARHOL MUSEUM, defendant: Richard J. DeMarco, Jr., Reed Smith Shaw & McClay, New York, NY.
For THE ANDY WARHOL MUSEUM, counter-claimant: Richard J. DeMarco, Jr., Reed Smith Shaw & McClay, New York, NY.
For TIME INC., counter-defendant: Jeremy G. Epstein, SHEARMAN & STERLING, Citicorp Center, New York, NY.
JUDGES: THOMAS P. GRIESA, U.S.D.J.
OPINIONBY: THOMAS P. GRIESA
In this action plaintiffs Henri Dauman and Time Inc. allege that the late Andy Warhol unlawfully appropriated an image of Jacqueline Kennedy that appeared in Life magazine. Defendants, who are said to be liable for this misappropriation, have moved under Fed. R. Civ. P. 12(b)(6) to dismiss all counts of the complaint for failure to state claims for copyright infringement. There is a separate motion by one defendant to dismiss count three.
The motions are denied.
According to the complaint, plaintiff Dauman is a professional freelance photographer who attended the funeral of President John F. Kennedy on assignment for Life magazine, an entity owned by plaintiff Time Inc.
Defendants are the Estate of Andy Warhol, who died in 1987; the Foundation, a not-for-profit organization created pursuant to the terms of Warhol's will; and the Museum, located in Pittsburgh, Pennsylvania and affiliated with the Foundation.
The complaint alleges that four pictures taken by Dauman at Kennedy's funeral were featured in the December 6, 1963 issue of Life. One of the photographs contained an image of a veiled Jacqueline Kennedy walking with the Kennedy brothers, Robert and Edward, which bore the caption, "A Sorrowing Family Marches Together."
According to the complaint, Time registered the December 6, 1963 issue of Life with the United States Copyright Office on December 6, 1963. The registration was renewed on October 25, 1991. The complaint does not allege that a copyright notice appeared in the December 6, 1963 issue of Life. In their memorandum of law, however, plaintiffs state that the magazine contained the following notice: "(c) 1963 TIME INC. ALL RIGHTS RESERVED. REPRODUCTION IN WHOLE OR PART WITHOUT WRITTEN PERMISSION IS STRICTLY PROHIBITED."
The complaint alleges that, in the months following Kennedy's death, Warhol created a series of artworks by reproducing images of Jacqueline Kennedy; that Warhol used a total of eight "source images" culled from newspapers and magazines; and that one of these images ("the Dauman Image") was taken from the Dauman photograph published in Life.
It is alleged that Warhol produced artworks using silkscreens of the source images. According to the complaint, the Dauman Image appears in at least 45 Warhol works created during the year following the Kennedy assassination.
The complaint alleges that in 1994 the Museum published a book entitled The Andy Warhol Museum; that within the book appears a composite of eight images captioned "Source images for Jackie, 1963-64;" and that the Dauman Image appears in that composite.
The complaint also alleges that the Foundation, with the participation of the Museum, published a 1995 engagement calendar and that the "Source images for Jackie, 1963-64" composite — containing the Dauman Image — appears as the illustration for the month of June.
According to the complaint, Dauman discovered the Jacqueline Kennedy artworks when a Warhol work entitled "16 Jackies" was sold at Sotheby's for $ 418,000 and a photograph of the auctioned work appeared in The New York Times. The complaint alleges that Dauman was not aware of the Andy Warhol artworks based on the Dauman Image until he saw this photograph in the Times.
Count one of the complaint alleges copyright infringement by Warhol because of his use of the Dauman Image in his Jacqueline Kennedy artworks, and alleges that the Estate and the Foundation are liable for this infringement. Count two alleges copyright infringement by the Museum and the Foundation for publication of the Dauman Image in the museum book. Count three alleges copyright infringement by the Museum and the Foundation for publication of the Dauman Image in the 1995 engagement calendar.
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept as true all of the allegations in the complaint and all reasonable inferences from those allegations must be drawn in favor of the plaintiff. A motion to dismiss should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Bolt Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).
To plead copyright infringement, a complaint must allege (1) that plaintiff owns a valid copyright and (2) that defendant copied some original element of plaintiff's work. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991).
Defendants argue that all counts of the complaint should be dismissed because they fail to allege that Dauman owns the copyright. The complaint states that the photograph was taken by Dauman, published in Life and registered by Time Inc., but the complaint does not literally allege that Dauman owns the copyright.
Plaintiffs argue that, as a matter of law, the publication in Life and registration by Time Inc. asserts and preserves Dauman's ownership of the copyright in the Dauman Image. Plaintiffs are correct. An author does not lose copyright protection by publishing a work in a magazine bearing a copyright notice. Goodis v. United Artists Television, Inc., 425 F.2d 397 (2d Cir. 1970), involved a set of facts similar to the allegations in this case. The author David Goodis first published his novel, Dark Passage, in The Saturday Evening Post in eight installments during 1946. The magazine contained a copyright notice, but not in Goodis's name. United Artists later adapted the novel into the television series, "The Fugitive." When Goodis sued United Artists for copyright infringement, United Artists claimed that the serial publication of Goodis's work in The Saturday Evening Post injected the work into the public domain. The Second Circuit rejected United Artist's argument, stating:
We unanimously conclude that where a magazine has purchased the rights of first publication under circumstances which show that the author has no intention to donate his work to the public, copyright notice in the magazine's name is sufficient to obtain a valid copyright on behalf of the beneficial owner, the author or proprietor.
Id. at 399. Applying this basic principle of copyright protection to the present case, the court concludes that the complaint sufficiently alleges ownership of the Dauman Image by Dauman.
The Museum makes an additional motion as to count three – i.e., that it does not allege that the Museum was involved in the publication of the 1995 engagement calendar. This is too narrow a reading of count three, which adequately alleges that the Museum participated in the copying of the Dauman Image in the 1995 calendar.
The motions of defendants to dismiss the complaint are denied.
Dated: New York, New York
June 18, 1997
THOMAS P. GRIESA