Graham v. Prince et al
| Donald Graham |
| Richard Prince, Gagosian Gallery, Inc. and Lawrence Gagosian |
| 1:2015cv10160 |
| December 30, 2015 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Shira A. Scheindlin |
| Copyrights |
| 17 U.S.C. ยง 101 |
| Plaintiff |
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Filing
265
FINAL JUDGMENT IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: 1. The Court has jurisdiction over the subject matter of this action and personal jurisdiction over the parties. 2. Judgment is entered in favor of Plaintiff and against Defen dants for the claims asserted against them as set forth in the Corrected Amended Complaint (the "Complaint"), and Defendants' defenses are dismissed with prejudice. 3. Defendants are enjoined from reproducing, modifying, preparing deri vative works from, displaying publicly, selling, offering to sell, or otherwise distributing the photograph Rastafarian Smoking a Joint (identified in paragraph 1 of the Complaint), the work Portrait of Rastajay92 (identified in paragraphs 4 and 32 of the Complaint), the art book (identified in paragraphs 6 and 42 of the Complaint), and the billboard (identified in paragraphs 7 and 45 of the Complaint) including any copies of any of the foregoing. 4. Plaintiff is awarded damages in an amount equal to five times the retail price for Portrait of Rastajay92 (as set forth in GG_00000466), plus all costs incurred by Plaintiff, as agreed-upon by the parties. 5. Compliance with this judgment may be enforced by Plaintiff and his successors in interest or assigns, and the Court retains jurisdiction to enforce or supervise performance under this judgment. SO ORDERED. (Signed by Judge Sidney H. Stein on 1/24/2024) (jca)
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Filing
256
ORDER denying 237 Motion for Bond. A status conference having been held today, with counsel for all parties present, IT IS HEREBY ORDERED that: 1. For the reasons set forth on the record, the Court denies defendants' motions for security fo r costs pursuant to Local Rule 54.2 [Doc. No. 237 in Graham v Prince, et al., and Doc. No. 207 in McNatt v. Prince, et al.]; and 2. The Court denies plaintiffs' application to consolidate these two cases for trial. The McNatt trial will commence on January 29, 2024, at 9:30 a.m. and the Graham trial will commence on February 20, 2024, at 9:30 a.m. SO ORDERED. (Signed by Judge Sidney H. Stein on 12/13/2023) (jca)
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Filing
252
AMENDED ORDER IT IS HEREBY ORDERED that: I. The trial in McNatt v. Prince, et al. shall take place before an eight-member jury commencing at 9:30 a.m. on January 29, 2024, in Courtroom 23A of the U.S. Courthouse, 500 Pearl Street, New York, New Yor k 10007. The following documents shall be filed on or before December 29, 2023: 1. A joint pretrial order setting forth the items required by paragraph 3A of the Court's Individual Practices; 2. Proposed requests to charge; 3. If the parties wis h, proposed voir dire; 4. Any motions in limine; and 5. Responses to motions in limine, if any, shall be filed on or before January 12, 2024. II. The trial in Graham v. Prince, et al. shall take place before an eight-member jury commencing at 9:30 a .m. on February 20, 2024, in Courtroom 23A of the U.S. Courthouse, 500 Pearl Street, New York, New York 10007. The following documents shall be filed on or before January 22, 2024: 1. A joint pretrial order setting forth the items required by paragr aph 3A of the Court's Individual Practices; 2. Proposed requests to charge; 3. If the parties wish, proposed voir dire; 4. Any motions in limine; and 5. Responses to motions in limine, if any, shall be filed on or before February 5, 2024. SO ORDERED. (Signed by Judge Sidney H. Stein on 12/1/2023) (jca)
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Filing
251
ORDER IT IS HEREBY ORDERED that: I. The trial in Graham v. Prince, et al. shall take place before an eight-member jury commencing at 9:30 a.m. on January 29, 2024, in Courtroom 23A of the U.S. Courthouse, 500 Pearl Street, New York, New York 10007 . The following documents shall be filed on or before December 29, 2023: 1. A joint pretrial order setting forth the items required by paragraph 3A of the Court's Individual Practices; 2. Proposed requests to charge; 3. If the parties wish, pro posed voir dire; 4. Any motions in limine; and 5. Responses to motions in limine, if any, shall be filed on or before January 12, 2024. II. The trial in McNatt v. Prince, et al. shall take place before an eight-member jury commencing at 9:30 a.m. on February 20, 2024, in Courtroom 23A of the U.S. Courthouse, 500 Pearl Street, New York, New York 10007. The following documents shall be filed on or before January 22, 2024: 1. A joint pretrial order setting forth the items required by paragraph 3A of the Court's Individual Practices; 2. Proposed requests to charge; 3. If the parties wish, proposed voir dire; 4. Any motions in limine; and 5. Responses to motions in limine, if any, shall be filed on or before February 5, 2024. SO ORDERED. (Motions due by 1/22/2024., Pretrial Order due by 1/22/2024., Responses due by 2/5/2024, Jury Trial set for 1/29/2024 at 09:30 AM in Courtroom 23A, 500 Pearl Street, New York, NY 10007 before Judge Sidney H. Stein., Jury Trial set for 2/20/2024 at 09:30 AM in Courtroom 23A, 500 Pearl Street, New York, NY 10007 before Judge Sidney H. Stein.) (Signed by Judge Sidney H. Stein on 12/1/2023) (jca)
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Filing
245
ORDER A telephone conference having been held today, with counsel for all parties participating, IT IS HEREBY ORDERED that: 1. The parties shall meet and confer within the next 10 days and propose dates in January or February 2024 for the commencem ent of trials of these actions by Monday, October 23, 2023; and 2. Assuming the parties are prepared to have these matters mediated, the parties shall agree on and retain a mediator within the next two weeks. SO ORDERED. (Signed by Judge Sidney H. Stein on 10/17/2023) (jca)
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Filing
242
ORDER granting 236 Letter Motion to Seal. The requests as set forth above are granted. SO ORDERED. (Signed by Judge Sidney H. Stein on 10/5/2023) (jca)
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Filing
235
ORDER IT IS HEREBY ORDERED that the parties are directed to meet and confer and submit to the Court on or before October 13, 2023, an agreed upon proposed date for the commencement of the trial of each of these actions. The trials are to commence within the next three to four months. The defendants should also state whether they seek a trial by jury or by the Court. SO ORDERED. (Signed by Judge Sidney H. Stein on 10/2/2023) (jca)
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Filing
234
OPINION AND ORDER re: 140 MOTION for Partial Summary Judgment . filed by Gagosian Gallery, Inc., Lawrence Gagosian.For the reasons set forth above, the Gagosian Defendants' motion for partial summary judgment is granted. Plain tiff Donald Graham may recover neither the Gagosian Defendants' profits from the sales of the Other Works in Prince's New Portraits series nor any unrealized profits on a hypothetical resale arising out of Lawrence Gagosian's ownership of Rastajay92. SO ORDERED. (Signed by Judge Sidney H. Stein on 9/11/2023) (jca)
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Filing
233
ORDER denying 229 Motion for Reconsideration re 229 MOTION for Reconsideration re; 227 Memorandum & Opinion, for Partial Reconsideration. filed by Richard Prince. In his "Limited Motion for Partial Reconsideration, " (ECF No. 230), Prince contends that, in the Court's Opinion & Order denying his motion for summary judgment, see Graham v. Prince, No. 15-CV-10160 (SHS), 2023 WL 3383029 (S.D.N.Y. May 11, 2023), the Court failed to consider his argument t hat the Terms of Service employed by Facebook in 2010 granted Prince an express license to use Graham's photograph posted on it. However, the Court did consider this issue, cited in its Order the provision of Facebook's Terms of Service tha t Prince uses to support this argument, and analyzed the cases Prince cited in his briefs, none of which provide a basis for a finding that he was granted an express license. Motion for partial reconsideration denied. (Signed by Judge Sidney H. Stein on 7/6/2023) (ate)
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Filing
227
OPINION AND ORDER re: (116 in 1:16-cv-08896-SHS) MOTION for Summary Judgment . filed by Blum & Poe New York, LLC, Blum & Poe, LLC, Richard Prince, (123 in 1:15-cv-10160-SHS) MOTION for Summary Judgment . filed by Richard Prince. As former Chief Judge Robert Katzmann observed, the work of appropriation artists "inherently raises difficult questions about the proper scope of copyright protection and fair use doctrine." Blanch, 467 F.3d at 263 (Katzmann, J. concurring). As boundaries between technology and art blend, these questions become increasingly difficult. Prince indeed tested the boundary between appropriation art and copyright infringement when he created Portrait of Rastajay92 and Portrait of Kim Gordon. This opinion is this Court's attempt to elucidate that boundary. For the reasons set forth above, both of defendants' summary judgment motions are denied. SO ORDERED. (Signed by Judge Sidney H. Stein on 5/11/2023) (jca)
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Filing
218
ORDER: IT IS HEREBY ORDERED that on or before September 15, 2021, defendants shall file supplemental memoranda of no more than 25 pages addressing the impact on the pending motions of the recent decisions in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021), and Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021), amended by No. 19-2420 (2d Cir. Aug. 24, 2021). On or before September 22, plaintiffs shall file a responsive memorandum of no more than 25 pages. SO ORDERED. (Signed by Judge Sidney H. Stein on 8/25/2021) (jca)
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Filing
211
ORDER. The Court is in receipt of plaintiffs' letter dated July 24, 2020. (Graham ECF No. 209; McNatt ECF No. 186.) The Court does not intend to hear argument on the Gagosian defendants' motion for partial summary judgment against plaintiff Donald Graham related to damages during tomorrow's oral argument. The argument will be limited to: (1) defendant Prince's motion for summary judgment in his favor against plaintiff Graham, which the Gagosian defendants join; and (2) defendants Blum & Poe, LLC, Blum & Poe New York, LLC, and Prince's motion for summary judgment in their favor against plaintiff Eric McNatt. So ordered. (Signed by Judge Sidney H. Stein on 7/27/2020) (rjm)
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Filing
208
ORDER: The Court having received the parties' letters today indicating which attorneys will be participating in the argument on Tuesday, July 28, at 12:00 p.m., IT IS HEREBY ORDERED that: 1. All the attorneys may join the argument via Skype; 2. Each party shall designate only one individual to speak on that party's behalf; and 3. Only the attorneys who will be speaking shall join the meeting using video. All other attorneys shall join the meeting using audio only. SO ORDERED. (Signed by Judge Sidney H. Stein on 7/24/2020) (ama)
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Filing
54
OPINION & ORDER re: 33 MOTION to Dismiss Corrected Amended Complaint. filed by Richard Prince: Defendants cannot establish at this stage that the affirmative defense of fair use insulates them from liability for copyright infringement. On a motion made pursuant to Fed. R. Civ. P. 12(b)(6), the Court is limited in its review to those facts alleged in the Complaint and apparent from its exhibits and the Court must view those facts in the light most favorable to Graham. Absent a fac tual record developed through discovery, the Court is therefore restricted in its ability to perform the fact-based and context-sensitive fair use inquiry. To the extent that the Court is able to evaluate the statutory fair use factors on the basis o f the facts alleged in the Complaint, the Court concludes that each of them weighs against a finding that Prince's Untitled makes fair use of Rastafarian Smoking a Joint. Because Prince has reproduced Graham's portrait without significant a esthetic alterations, Untitled is not transformative as a matter of law. Moreover, Untitled is a work made with a distinctly commercial purpose; Graham's original Rastafarian Smoking a Joint is, without question, expressive and creative in natur e; Prince's use of the entirety of Graham's photograph weighs against a finding of fair use; and the Complaint adequately alleges usurpation of the primary market for Untitled. Accordingly, Prince's motion to dismiss the Complaint is d enied. With respect to defendants' application to preemptively limit the scope of the damages to which Graham may be entitled, the Court grants defendants' request to dismiss plaintiff's demand for punitive damages but otherwise denies defendants' requests without prejudice. (Signed by Judge Sidney H. Stein on 7/18/2017) (jwh) Modified on 7/18/2017 (jwh).
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