Reverend Donald Wildmonã¢ââ¢s American Family Association to Lobby Against Nea Funding for the Arts

Liberty of Expression

at the National Endowment for the Arts

An interdisciplinary education projection partially funded by the American Bar Association, Committee on College and Academy Legal Studies through the ABA Fund for Justice and Education

Multimedia artist David Wojnarowicz brings this activeness to enjoin the publication of a pamphlet past defendants American Family Association ("AFA") and Donald E. Wildmon, Executive Director of AFA, and for amercement based upon claims of copyright infringement, defamation, and violations of the Lanham Human activity and the New York Artists' Authorship Rights Human activity. . .

. . . . Plaintiff also seeks a permanent injunction to halt defendants' distribution of the allegedly violative material, a mandatory injunction requiring defendants to correct their declared misrepresentations and an award of money damages. . . . [T]he Court concludes that plaintiff is entitled to judgment for defendants' violation of New York'due south Artists' Authorship rights Act, but plaintiff'due south claims for copyright infringement, violation of the Lanham Act and defamation must be dismissed. . . .

FINDINGS OF FACT

Defendant AFA, formerly known as the National Federation For Decency, was founded in 1977 as a not-for-turn a profit corporation by Donald Due east. Wildmon. Incorporated under the laws of the state of Mississippi, and headquartered in Tupelo, Mississippi, the AFA has over 60,000 members and approximately 500 local capacity nationwide, including a number in the state of New York. It is chartered for the declared purposes; inter alia, of promoting decency in the American society and advancing the Judeo-Christian ethic in America. Defendant Donald E. Wildmon, Executive Director of the AFA, is a denizen of the United States, resident in Tupelo, Mississippi. Since May 1989, the AFA has been actively candidature confronting what information technology characterizes as the subsidization of "offensive" and "blasphemous" art by the national endowment for the Arts (the "NEA"). Through contributions, it raised $5.two million dollars in 1989.

Plaintiff, a citizen of the United states, residing in New York, New York, is a multi-media artist, whose piece of work includes paintings, photographs, collages, sculptures, installations, video tapes, films, essays and public performances. A professional artist, plaintiff earns his living by selling his art works, many of which are assertedly directed at bringing attention to the devastation wrought upon the homosexual customs past the AIDS epidemic. Plaintiff attempts through his work to expose what he views every bit the failure of the United States government and public to confront the AIDS epidemic in any meaningful mode. To this terminate, plaintiff's fine art at times incorporates sexually explicit images for the avowed purpose of shaping community attitudes towards sexuality. As a result, his works have been the subject of controversy and public debate concerning authorities funding of non-traditional art.

Plaintiff's art works frequently employ groupings of images which are assertedly intended to convey composite messages. The works have received a measure of critical acclaim and accept been featured in a number of museum and gallery exhibitions. Plaintiff earned approximately $xv,000 from the sale of his art works in 1988, approximately $34,000 in 1989 and $17,000 to appointment this year.

From Jan 23, 1990 through March 4, 1990, the Academy Galleries at Illinois State University, Normal, Illinois, presented a comprehensive exhibition of plaintiff's work, entitled "tongues of flame" (the "exhibit"), and published a 128-page catalog (the "catalog") which independent reproductions of over sixty of plaintiff's works, besides equally essays past plaintiff and others. The NEA awarded the University Galleries $15,000 to help pay for the exhibit and the itemize.

Plaintiff is the possessor of the copyrights to all of the works displayed in the exhibit and of all of the reproductions of his piece of work that appear in the catalog. . . .

On or well-nigh Apr 12, 1990, the AFA and Wildmon published and distributed throughout the U.s.a., including the Southern District of new York, the AFA pamphlet (the "pamphlet") in an attempt to terminate public funding by the NEA of art works such as plaintiff's. The pamphlet was mailed to 523 members of Congress, 3,230 Christian leaders, 947 Christian radio stations and i,578 newspapers, at to the lowest degree twenty-eight of which were located in this district. Without plaintiff'southward authorization, Wildmon photographically copied fourteen fragments of plaintiff'due south works which he believed well-nigh offensive to the public and reproduced these fragments in the AFA pamphlet. These fourteen images, with three exceptions, explicitly depict sexual acts. The other 3 images portray Christ with a hypodermic needle inserted in his arm, and ii cryptic scenes which plaintiff represents as respectively depicting an African purification ritual and two men dancing together.

Wildmon wrote the text of the pamphlet, which is entitled "Your Revenue enhancement Dollar Helped Pay For These 'Works of fine art.'" It states in the introductory sentence that "the photographs appearing on this canvass were office of the David Wajnarowicz [sic] 'Tongues of Flame' exhibit itemize." The envelope in which the AFA pamphlet was mailed states that the "[p]hotos enclosed in this envelope were taken from the itemize of the 'Tongues of Flame' exhibit" and is marked "Circumspection-Contains Extremely Offensive Cloth."

CONCLUSIONS OF Constabulary

. . .

New York'south Artists' Authorship Rights Human activity

New York Artists' Authorship Rights Human activity, N.Y. Cultural Affairs Police Section 14.03 . . . provides, in relevant office, that:

1. [North]o person other than the creative person or a person acting with the artist's consent shall knowingly display in a identify attainable to the public or publish a work of fine art or express edition multiple of not more than three hundred copies by that artist or a reproduction thereof in an altered, defaced, mutilated or modified form if the work is displayed, published or reproduced as being the piece of work of the artist, or under circumstances which would reasonably exist regarded equally being the work of the creative person, and damage to the artist's reputation is reasonably likely to effect therefrom. . . .
2. (b) the rights created past this subdivision shall exist in add-on to whatsoever other rights and duties which may now or in the future be applicable.
3. (due east) the provision of this section shall apply only to works of fine fine art or limited edition multiples of not more than than three hundred copies knowingly displayed in a place accessible to the public, published or reproduced in this state.
4. (a) An creative person aggrieved nether subdivision one or subdivision ii of this department shall have a cause of action for legal and injunctive relief.

. . . Defendants . . . contend that the distribution of a photocopy of cropped images extracted from plaintiff's piece of work is non a violation of the statute because it did not alter, deface, mutilate or modify plaintiff's original work. This court does not agree. A literal reading of section 14.03(a) of the Authorship rights Act clearly demonstrates that the statute guards confronting alterations of reproductions equally well every bit of the original works. . . , [D]eliberate alterations(such as selective cropping), as distinguished from those that usually result from the reproduction process (such every bit reduction in overall size or loss of item), would constitute violations. . . .

. . . [B]ecause the intent of the bill was to protect not but the integrity of the artwork, but the reputation of the artist, the spirit of the statute is best served by prohibiting the attribution to an artist of a published or publicly displayed altered reproduction of his original artwork. From a photographic reproduction, it cannot be seen whether the amending was effected on the original or the copy, and both may cause the same damage to the artist'south reputation when the altered version is published with attribution to him. In fact, the mass mailing of an altered photographic reproduction is probable to reach a far greater audience and cause greater harm to the artist than the display of an altered original, which may accomplish simply a limited audience. . . .

2d, this Court rejects defendants' claim that the reproduction and publication of small, unrepresentative segments of larger works, printed wholly without context, does not constitute an amending, defacement, mutilation or modification of plaintiff'due south artworks. By excising and reproducing only small portions of plaintiff's work, defendants take largely reduced plaintiff's multi-imaged works of fine art to solely sexual images devoid of any political and creative context. Extracting fragmentary images from complex, multi-imaged collages conspicuously alters and modifies such work.

Defendants likewise content that their reproductions are not within the telescopic of the Act because the pamphlet was not publicly displayed or published. The court finds this contention disingenuous. . . . By mailing over 200 pamphlets into the land of New York, thereby transferring buying, to, amid others, entities which information technology obviously intended to disseminate the pamphlet further, defendants have "published" their reproductions within the pregnant of the Copyright Act's definition. . . .[D]efendants' communication was non private merely because the pamphlet was mailed to selected individuals at specific locations rather than being exhibited in a museum. Defendants' communication is a public message urging opposition to NEA funding of such art. Because they sought to gain support for their cause through such a massive mailing, they can not now merits that in that location was no publication or public brandish.

Defendants next claim that plaintiff has failed to demonstrate that the alteration, modification, defacement or mutilation has acquired or is reasonably likely to issue in damage to his reputation. Defendants urge that plaintiff's reputation has not been diminished in the eyes of his peers or gallery directors, dealers and potential buyers who make up one's mind his livelihood simply, to the contrary, the increased exposure and publicity has enhanced his reputation. However, the trial testimony of Philip Yenawine, an expert on gimmicky fine art, employed by the modern Museum of Art in New York, established that at that place is a reasonable likelihood that defendants' actions have jeopardized the monetary value of plaintiff'south works and dumb plaintiff's professional and personal reputation.

Yenawine testified that because the details in the pamphlet imply that plaintiff'due south work consists primarily of explicit images of homosexual sex activeness, plaintiff's name volition be "anathema" to museums. Museums unfamiliar with plaintiff's piece of work, believing the pamphlet to be representative of his work, may fail to review his work, fifty-fifty though many of plaintiff'due south art works do not incorporate sexual images. Fifty-fifty museums familiar with plaintiff's work may be reluctant to show his work due to his perceived association with pornography.

Yenawine stated that this cocky-censorship will accept an adverse affect on the value of plaintiff's work; individual will exist less likely to buy plaintiff's art without the pedigree of museum shows and accompanying reviews. Similarly, defendants' misrepresentation of plaintiff's work may deter persons from attending his shows, which may, in plough, reduce the incentive for galleries and museums to include plaintiff's work in futurity shows. Additionally, the public may associate plaintiff with but the sexually explicit images which were taken out of his intended political and creative context, resulting in a reasonable likelihood of damage to his reputation and to the market for his piece of work. Yenawine further testified that although corporations would not have been probable to purchase those works of plaintiff's which comprise sexual images, "a peachy number of [plaintiff'southward] images . . . take no sexual representations whatever and bargain with all sorts of other kinds of images. . . ."

When comparing the state of affairs of plaintiff with that of either Robert Mapplethorpe or Andre Serrano, whose works have risen in value despite similar controversies, Yenawine testified that the works of Mapplethorpe and Serrano were presented in their entirety then that viewers could judge for themselves the merit of the works, different the works of plaintiff which were presented in fragments then that readers of the pamphlet could not fairly judge his works. Yenawine likewise noted that the reputations of both Mapplethorpe and Serrano were better able to withstand the outcry concerning their work because the controversies arose when, unlike plaintiff, they were well-established as artists and supported past investors who had substantial interest in protecting the value of their investments.

Defendants next affirm that where the spoken language involves matters of public concern allegedly injuring the reputation of a public effigy, actual malice must be proven to defeat First Amendment protection. While agreeing with the quotations submitted by defendants eloquently extolling the virtues of the Commencement Amendment, this court cannot agree that the amending, defacement, mutilation or modification of artwork is protected spoken communication, entitling defendants to amnesty where they acted without actual malice. Clearly, the pamphlet contained protectable voice communication, namely, the protest against the subsidy of "obscene" art, which is entitled to the utmost First Amendment protection as the "unfettered interchange of ideas for the bringing nigh of political and social changes deserved by the people." . . . the public display of an altered artwork, falsely attributed to the original artist, however, is non the type of speech or activity that demands protection, because such deception serves no socially useful purpose. The New York Statute does not impeded truthful speech communication, but rather presents false attribution, requiring but accurate labeling to allow dissemination of the desired message. Such labeling in no way diminishes the force of the message. Defendants remain gratuitous to criticize and condemn plaintiff's work if they then choose. They may present incomplete reproductions labeled equally such or, alternatively, without attribution of such images to plaintiff. However, they may not present as consummate works by plaintiff, selectively cropped versions of his originals.

Defendants also charge that the statute is unconstitutional (i) as applied, (2) on its face up and (3) nether the New York State Constitution. For the following reasons, the Court cannot agree. As stated higher up, the Artists' Authorship rights Act does not address a category of speech which is presumptively protected under the First Amendment. The First Amendment does not protect the public display of altered artwork, falsely attributed to the original artist. The public display of an altered reproduction for the purpose of expressing a grievance against the government or simply for the purpose of denouncing a social attitude in which at that place is no express or reasonably implied attribution to the original artist is altogether unlike the public attribution of an altered reproduction of a work of art to its original artist. While the former is protect speech, the latter is not. Accordingly, the starting time Amendment does not foreclose application of this statute to defendants' pamphlet. Similarly, narrowly tailored injunctive relief preventing but the imitation attribution to plaintiff of altered reproductions of his work does not found an unlawful prior restraint of protected speech.

Every bit to defendants' position that the statute is unconstitutionally vague and overbroad, the court again cannot agree. As explained above, the statute encompasses altered reproductions equally well as altered originals and altered limited edition multiples. The statute is non impermissibly vague merely because it requires a determination as to whether damage to an artist'southward reputation is reasonably likely to result from an amending and attribution. . . . Because the statute before long before the Court states that harm to the artist's reputation must be "reasonably likely" to consequence, the test is clearly whether a reasonable person would conclude that damage to the creative person's reputation is probable. . . .

Nor is the statute overly broad. As discussed above, because the statute proscribes but the simulated attribution to an artist of an altered original, express edition or reproduction of his piece of work, it does non sweep within its ban speech which is protected by the outset Subpoena. Nor does information technology prohibit conduct specifically protected past federal copyright laws. . . . By requiring that a plaintiff prove a public showing of an altered version of his work, attributed to him with a resulting reasonable likelihood of harm to his reputation, the Artists' Authorship Rights Act is sufficiently narrow to meet its aim of protecting artists' reputations as well as the integrity of the artwork for the do good of both artists and the viewing public.

Past attributing the modified images contained in the pamphlet to plaintiff as his works of art, defendants take created a likelihood of harm to his reputation as a serious artist and to his earning potential, and have thereby violated New York's Artists' Authorship Rights Human action.

Violation of the Lanham Act

. . . Every instance of the Lanham Act's far-reaching application has been to practices commercial in nature, involving imitation, misrepresentation, or misappropriation in connection with the same of appurtenances or services by the accused. . . . Considering the pamphlet was not employed in the "advertising or promotion" of goods or services, plaintiff has failed to satisfy a prerequisite to invocation of the Lanham Human action.

Copyright Infringement

To prevail in a copyright infringement action, the copyright owner must evidence (one) ownership of the copyright at result, and (2) a violation of ane of the sectional rights accorded the copyright owner. . . . Plaintiff is the possessor of the copyright in the artworks at issue, each of which was registered in plaintiff's proper name in the U.Southward. Copyright Role on May xi, 1990. . . .

By directly copying portions of several of plaintiff's copyrighted artworks, defendants have violated plaintiff's exclusive correct "to reproduce the copyrighted work in copies." 17 UsC. 106(1) By editing or cropping plaintiff'south artworks and presenting the unauthorized modified version, defendants have additionally violated the plaintiff's sectional right to set derivative works. 17 United states of americaC. 106(two)

Fair employ

Defendants raise the affirmative defence force that their employ of the images in the AFA pamphlet for the articulate purpose of criticism and annotate on an upshot of public business and for petitioning the government for redress of grievances is protected by the doctrine of "fair use" under 17 U.Southward.C. 107. Defendants claim that having voluntarily accustomed public funding past the NEA to support publication of his artwork, plaintiff may not present the AFA or Wildmon from criticizing that funding.

Described as "the near troublesome in the whole law of copyright," . . . the event of fair utilize requires an intricate balancing of circuitous factors. . . . For the post-obit reasons, the Courtroom concludes that defendants' use of plaintiff's copyright works nether the present circumstances is protected.

Purpose and Character of Use

Criticism and comment are uses expressly recognized by the off-white utilise provision of the Copyright Act and the "near universally recognized in connection with" the defense of fair utilize. . . .No one disputes that this was defendants' dominant purpose. In addressing the controversial issue of federal funding of contemporary art, the pamphlet is entitled to bully protection considering the ceremoniousness of such funding must remain open to vigorous claiming and those who have federal funds must also accept the correct of others to protest such expenditures.

. . . Plaintiff claims that it was defendants' misleading distortion of his work in social club to make it appear more "offensive" than a true and accurate reproduction renders their criticism outside the scope of the doctrine's protection. While the Second Circuit court has considered "whether the paraphrasing and copying was washed in practiced faith or with evasive motive." . . . and noted that inaccuracies may render an "otherwise 'fair abridgement . . . [to be] prejudicial, by mistaking and curtailing the sense of the author,'" . . . the threshold of this exception is loftier. . . .[P]laintiff has non established defendants' intent to misconstrue plaintiff'due south work and to represent the fragments equally complete composite works of art with sufficient clarity to surmount that threshold. While the pamphlet published by defendants misrepresents the original piece of work, it is clear that reasonable persons could find the baloney to exist the product of mere carelessness.

Plaintiff argues that the use of the pamphlet every bit part of a fund-raising effort creates a presumption against the fairness of the utilise . . . .Information technology is true that even a minimal level of commercial incentive weighs confronting a finding of fair utilise, only whether information technology controls the concluding decision depends on the totality of the circumstances. While the publication of the pamphlet involved some economic motivation, . . . this Courtroom believes that hither defendants' ascendant objective was to oppose federal funding of "pornography," and that this objective far outweighed the secondary fund-raising purpose. Accordingly, this gene strongly favors defendants.

Nature of the Copyrighted Piece of work

All the words from which defendants copies had been published in the catalogue. Whether or non a work is published is critical to its nature under this factors because, equally the Supreme Court has stated and the Second Excursion Court has reiterated, "fifty-fifty substantial quotations might authorize as fair utilize in a review of a published work." . . .

Adjacent considered under gene two is whether the copyrighted work is "data" or "creative." . . . When advisory works are involved, as opposed to creative ones, the telescopic of fair use is greater. . . . Despite defendants' assertion and plaintiff'southward admission that plaintiff's works seek to convey political information, the Court finds that the works are primarily creative expressions; they are no less creative considering they espouse a political message. Therefore, the scope of fair use is diminished and, even though the works were published, this factor slightly favors plaintiff.

Volume of the Taking

Assay of the third factor in the fair use calculus includes consideration of both the corporeality and the substantiality of the copying. . . .It is not disputed that only small images were excised from plaintiff's works and copied, with the exception of one image which represented an unabridged photograph from a related serial of four. Plaintiff claims, however, that the quality of the taking was great because, although the pamphlet did not take the heart of his work, it misrepresented his work in a way non possible in literary piece of work. This court disagrees. . . . where a plaintiff effectively concedes that it would have been fair use to have copied 1 of his works in its entirety, he tin can scarcely base a claim of infringement on the copying of fragments. This factor therefore weighs in favor of defendants.

Market Effect

. . . Plaintiff alleges that the harm to his reputation and works has and will continue to diminish the market place for and value of his works. Defendants debate that, to the contrary, the value of plaintiff's works has been enhanced by the notoriety surrounding this controversy.

A plaintiff in a copyright activity need not show actual harm; it is enough that he demonstrate a likelihood of futurity impairment acquired by the infringement. . . . While the current controversy may have sparked interest in plaintiff'southward fine art works, that interest is likely to last only as long as the controversy and is more likely to attract awareness seekers than purchasers. Plaintiff's "fifteen minutes of fame" may not translate into hereafter commercial success.

Defendants more appropriately argue that the fair utilise doctrine allows publications which criticize and comment to impairment the market place value of copyrighted work. Under the doctrine, a copyright violation does not occur where even a ruinous review decreases demand for a copyrighted piece of work. . . . Because excerpting a work for criticism and comment does not produce a work in contest with the copyrighted work, the infringing cloth does not supplant the original work and does not implicate the concerns of the Copyright Act. . . . Whatever subtract in sales and popularity due to defendants' criticism and annotate is therefore non actionable, especially where, as here, plaintiff's works were published and the infringing pamphlet "will not tap whatever sources of economic profit that would otherwise go to the authorized [works].". . . This factor therefore strongly favors defendants.

Other Considerations

. . . [A]dditional factors may influence the off-white use balance. Defendants first claim that by having accepted tax dollars to support the brandish of his artwork, plaintiff should exist estopped from quieting those taxpayers who seek publicly to criticize such funding. While such claims of estoppel and unclean hands cannot be sustained, it is highly significant to the scope of off-white utilize that plaintiff accepted public funds to support his artwork. This fact broadens the scope of the off-white use exemption because of the strong public interest, protected by the first Amendment, in free criticism of the expenditure of federal funds.

Defendants adjacent contend that because the pamphlet addresses an issue of public business organisation, it rests "on the highest rung of the bureaucracy of Outset Amendment Values.". . . Defendants similarly debate that the pamphlet falls within the telescopic of the Offset Amendment's right to petition government for redress of grievances, a right "among the most precious of the liberties safeguarded by the Bill of Rights." . . . The Commencement Amendment, all the same, provides no privilege against the copyright laws beyond that afforded by the fair use defense. . . .however, . . . where vital Get-go Amendment concerns are implicated, as here, that latitude expands and accords greater protection to what might otherwise found an infringement. Appropriately, subsequently balancing all the relevant factors, this Court rules that defendants' use is a fair ane.

Defamation

Plaintiff claims that in excerpting fragments from plaintiff'south original composite art works, defendants removed all the artistic and political content of the works and reduced them to banal sexual images. Plaintiff claims that past attributing the excerpted fragments to plaintiff, defendants defamed his piece of work and damages his reputation.

To state a claim for libel, plaintiff must demonstrate showtime that defendants' communication has a defamatory meaning. Because plaintiff concedes that he is a express purpose public effigy, he must as well show that defendants acted with "actual malice," that is, "with knowledge that information technology was fake or with reckless condone of whether it was imitation or not." . . . While the former requirement is satisfied hither, the latter is not, defeating plaintiff's defamation claim.

. . . Information technology is clear that defendants' message was serious in nature: plaintiff'southward works of fine art were unworthy of NEA funding. . . . By presenting what are, standing alone, essentially pornographic images as plaintiff'due south works of fine art, without noting that the images are merely details from larger composite works, the pamphlet is libelous per se.

"Actual malice" does non require a showing that defendants harbored ill will toward the plaintiff, just rather that defendants had "'a high degree of awareness of [the communication'due south] likely falsity,' or 'in fact entertained serious doubts equally to the truth of [their publication.'". . .

Whether Wildmon acted with such reckless disregard of the truth when reproducing only the portions and identifying them as plaintiff'due south "works of art," while a hard question, has been illuminated by his testimony at trial. Wildmon admitted that in selecting the details to exist reproduced, he chose those fragments which were most "offensive," that is, apt to arouse the greatest outrage over NEA funding. However, the defamation alleged herein is non over the presentation of the images but the delineation of these images as plaintiff's "works of art."

The Court finds that, in writing the text accompanying the reproductions, Wildmon did not consider that his words could be construed as a representation that the fragments were complete works of art by plaintiff, simply merely used the quoted phrase in a sarcastic sense, to indicate that the author did not consider the works deserving of the term "fine art." And his statements that "the photographs appearing on this canvas were part of the David Wajnarowicz [sic] 'Tongues of flame' exhibit catalog," and that the "[p]hotos enclosed in this envelope were taken from the catalog of the 'tongues of Flame' showroom . . . (emphasis added)," are literally accurate because the photographs were excerpted from the showroom catalog, fifty-fifty though these statements failed to make clear that those photographs depicted simply portions of composite works. Indeed, Wildmon continues to deny that his statements were inaccurate.

While the deliberate omission of qualifying data may demonstrate actual malice, . . .the Court is unconvinced that Wildmon knowingly omitted qualifying linguistic communication that would have rendered his descriptions less misleading. Although Wildmon's statements had the potential to mislead reasonable readers, his actions do non showroom "'a loftier caste of sensation of [the advice'southward]probable falsity,' or . . . [that he] 'in fact entertained serious doubts every bit to the truth of his publication.'" . . . the court is unpersuaded by plaintiff'due south contention that other prove, including Wildmon'southward sophistication and repetition of the misstatements later on being informed of them by the Chairman of the NEA and this lawsuit, belies his lack of intent. Additionally, Wildmon's knowledge and prior utilize of the Homo Events editorial which referred to the image reproduced therein equally a "portion" of a collage does not indicate his witting conclusion to substitute such language with more misleading references. As to plaintiff's assertion that the pamphlet implies, reverse to fact, that the showroom was funded by the NEA afterward the funding restriction became effective and later John Frohnmayer became the Chairman of the NEA, Wildmon testified that "in [his] listen, if this exhibit took place in March and the police force was passed in [the preceding] November . . . then it's reasonable to assume that this exhibit independent the kind of material which the law supposedly was to prohibit." The Courtroom believes that Wildmon's state of heed was not sufficiently reckless to satisfy the actual malice requirement for finding defamation against a public figure. Because plaintiff has not proved bodily malice with convincing clarity, plaintiff's defamation claim is dismissed.

Remedies

Prohibitive Injunction

New York's Artists' Authorship Rights Act specifically provides for equitable relief. . . Because plaintiff has demonstrated success on his claim for relief, he is entitled to injunctive relief upon a showing of irreparable injury.

. . . Defendants' distribution of a pamphlet, suggesting that plaintiff's work consists of sexually explicit images, has irreparably harmed plaintiff'southward professional and personal reputation and warrants injunctive relief. Accordingly, defendants and all those in privity with them are hereby enjoined and restrained from farther publication or distribution of the pamphlet in controversy. As stated in the Court's opinion and order dated June 28, 1990:

This injunction shall non prohibit publication or distribution of other pamphlets or materials incorporating the photographic images contained in the pamphlet, or portions thereof, for the purpose of directly or indirectly influencing the national Endowment for the Arts or the Usa Congress or other Us authorities officials to cease the directly or indirect subsidy or back up of the creation, exhibition or publication of such art with federal funds, provided that, such pamphlets or materials do not suggest to reasonable readers that a fragment of i of plaintiff's fine art works constitutes the consummate piece of work.

Mandatory Injunction

Plaintiff likewise seeks an order requiring defendants to undertake a corrective mailing and to publish a corrective advertisement in a major daily newspaper. . . . [T]he court believes it merely to crave defendants to distribute a corrective communication to all those to whom they sent the original pamphlet. To minimize mailing costs, this corrective advice, to be mailed within ninety days from the appointment of this opinion and order, may exist joined with whatsoever other distribution by the defendants. The corrective communication should be submitted to the Courtroom for approval after comment by all parties.

Damages

Under new York'southward Artists' authorship rights Act, an artist is also entitled to legal relief, i.eastward., damages, for a violation of the Human activity. . . . Fifty-fifty though plaintiff has established that defendants' actions were reasonably likely to upshot in damage to his reputation, he has proven no actual damages. And so far equally the record shows, not one gallery or museum currently scheduled to exhibit plaintiff's piece of work, has cancelled; nor has 1 planned auction been cancelled. Plaintiff presented no bear witness that he has been harmed in whatever other specific, quantifiable way. Appropriately, the Courtroom hereby awards plaintiff nominal damages in the amount of $i.00.

Determination

For the reasons discussed higher up, plaintiff is entitled to judgment for defendants' violation of New York's Artists' Authorship Rights Deed. Plaintiff's claims for copyright infringement, violation of the Lanham Act and defamation are dismissed. And so ORDERED.

[Notes omitted from the study of the opinion.]

• Post a Message
• Site Tabular array of Contents
• Search the Entire Site
• Domicile page: Liberty of Expression at the NEA

This site developed and maintained past Julie Van Camp, Acquaintance Professor of Philosophy,
California State University, Long Beach.

Your comments, questions, and suggestions are welcome: electronic mail: jvancamp@csulb.edu

1250 Bellflower Boulevard, Long Embankment, CA 90840-2408
Office Phone/Vocalism Mail: (562) 985-5545
Section Fax: (562) 985-7135

Copyright 1996 Julie C. Van Camp

Permission is hereby given to print, download, and reproduce these materials for educational, personal, or scholarly purposes, but only if the copyright detect and this permission observe are reprinted in total with each re-create. This textile may not be sold or otherwise used for commercial purposes. [No copyright claimed on government documents or other public domain materials.]

Nothing in this material should be considered legal advice. If you have a legal problem, y'all should consult with experienced legal counsel. The views here are solely the responsibility of the author and do not necessarily reflect the views of the American Bar Association, California Land University, or the National Endowment for the Arts.

Terminal updated: June 28, 1998

leonardlowl1991.blogspot.com

Source: https://www.csulb.edu/~jvancamp/doc6.html

Share this post