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Law School Case Brief

Graham v. Prince - 265 F. Supp. 3d 366 (S.D.N.Y. 2017)


A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted addresses the sufficiency of the pleading, rather than the merits of a claim. To survive a motion to dismiss, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. A complaint should be dismissed where the claims have not been nudged across the line from conceivable to plausible. In evaluating a motion to dismiss a complaint pursuant to Fed. R. Civ. P. 12(b)(6), a court accepts the truth of the facts alleged in the complaint and draws all reasonable inferences in the plaintiff's favor. The court does not look beyond facts stated on the face of the complaint, documents appended to the complaint or incorporated in the complaint by reference, and matters of which judicial notice may be taken.


Plaintiff Donald Graham brought action in federal district court against defendants Richard Prince, Gagosian Gallery, Inc. ("Gallery"), and Lawrence Gagosian ("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 was well known. Prince used Graham's photograph, entitled Rastafarian Smoking a Joint, to create an artwork known as Untitled (Portrait) ("Untitled"). The Gallery owned and operated art galleries in various cities, including one in New York City. According to the complaint, the Gallery was Prince's primary gallery and agent. Defendant Lawrence Gagosian ("Gagosian") was the controlling shareholder of the Gallery, which displayed and promoted Prince's Untitled in Sept. and Oct. 2014 as part of an exhibition of works by Prince. Gagosian himself allegedly purchased Untitled "at or prior to the conclusion" of that exhibition. At trial, defendants asserted the affirmative defense of fair use and filed a motion to dismiss the complaint with prejudice. In the alternative, defendants asked the court to convert their motion into a motion for summary judgment. In addition, defendants urged the court to limit, as a matter of law, Graham's damages claims to any profits obtained from the sale of Untitled; to restrict the bounds of possible statutory damages, attorneys' fees, and costs that Graham may recover; and to bar Graham from seeking punitive damages.


Should the court grant the motion to dismiss or the alternative motion for summary judgment?




The court denied the motion to dismiss and alternative motion for summary judgment. Because the affirmative defense of fair use required the court to engage in a fact-sensitive inquiry that could not be completed—in this case—on a motion to dismiss the complaint, the motion was denied. In addition, because discovery was necessary to conduct the fair use inquiry, the court declined to convert the motion into a motion for summary judgment. The court noted that fair use was not established under 17 U.S.C.S. § 107(3) because Untitled reproduced a photographic portrait without significant aesthetic alterations, was made to exhibit and sell at a commercial art gallery, and used of the entirety of Graham's photograph. With respect to defendants' request to limit Graham's potential damages, the court granted defendants' request to bar Graham from seeking punitive damages but otherwise denied the request.

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