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United States District Court for the Southern District of New York
July 18, 2017, Decided; July 18, 2017, Filed
[*370] [***1727] OPINION & ORDER
SIDNEY H. STEIN, U.S. District Judge.
Table of Contents
A. The Parties
B. Graham's Rastafarian Smoking a Joint
C. Prince's Untitled and New Portraits Exhibition
D. Plaintiff's Cease and Desist Letter and Defendants' Subsequent
Use of the Image
E. This Action
II. Motion to Dismiss Standard
III. Fair Use
A. Legal Standards
B. Application of the Fair Use Factors
1. Purpose and Character of the Use
a. Transformative use
b. Commercial Use
2. Nature of the Work
3. Amount and Substantiality
[**2] 4. Effect on the Potential Market for the Copyrighted Work
5. Application of the Fair Use Factors to the Billboard and the
IV. Defendants' Request for Conversion to Motion for Summary
V. Limitation of Damages
A. Actual Damages and Infringers' Profits
1. Actual Damages
2. Infringers' Profits
B. Statutory Damages, Attorneys' Fees, and Costs
1. Statutory damages and attorneys' fees
C. Punitive Damages
Donald Graham brings this action against Richard Prince, Gagosian Gallery, Inc., and Lawrence Gagosian for copyright infringement arising out of Prince's failure to seek Graham's permission to use one of his photographs in creating the "appropriation art" for which Prince is well known. Prince used Graham's photograph, Rastafarian Smoking a Joint, to create an artwork known as Untitled (Portrait) ("Untitled"), which was featured by defendants as part of an exhibition called New Portraits, as well as in the catalog for that exhibition, a billboard displayed in New York, and in a post by Prince on the social media platform Twitter.
Defendants have asserted the affirmative defense of fair use and moved to dismiss the Corrected Amended Complaint (the "Complaint"), [**3] with prejudice. In the alternative, defendants ask the Court to convert their motion into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d). Defendants also urge the Court to limit, as a matter of law, Graham's [*371] damages claims to any profits obtained from the sale of Untitled; to restrict the bounds of possible statutory damages, attorneys' fees, and costs that plaintiff may recover; and to bar plaintiff from seeking punitive damages.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
265 F. Supp. 3d 366 *; 2017 U.S. Dist. LEXIS 111521 **; 123 U.S.P.Q.2D (BNA) 1724 ***; Copy. L. Rep. (CCH) P31,122; 2017 WL 3037535
DONALD GRAHAM, Plaintiff, -against- RICHARD PRINCE, GAGOSIAN GALLERY, INC., and LAWRENCE GAGOSIAN, Defendants.
fair use, photograph, infringing, transformative, Smoking, exhibition, defendants', profits, Portraits, motion to dismiss, Gallery, attorney's fees, matter of law, Billboard, statutory damages, actual damage, costs, weigh, copyrighted work, original work, factors, alterations, aesthetic, displayed, Catalog, copyright infringement, alleges, artwork, license, print
Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Copyright Law, Civil Infringement Actions, Defenses, Fair Use, Fair Use, Fair Use Determination, Factors, Fair Use Determination, Remedies, Damages, Types of Damages, Types of Damages, Compensatory Damages, Infringement Profits, Statutory Damages, Costs & Attorney Fees