We have written and lectured frequently on the importance of registering everything because you never know what might be infringed or by whom or even how. We have emphasized that while most attention is incorrectly focused on web infringements, cases which involve packaging, point of purchase, billboards and other media are generally more egregious. Sometimes the manner of the infringement is one which the creator of the image could not in her wildest dreams have conjured.
Many of you by now have seen on line and newspaper articles regarding our representation of African Scholar Marilyn Nance in her lawsuit against the Broadway show “Fela”. The case was filed in the United States Court for The Southern District of New York. Coverage by the NY Times, NY Post, NY Daily News, The Wall Street Journal, New York Magazine, press in the UK (various) and in Africa has been extensive. Some url’s below.
First, some points of accuracy missed by some of the reportage:
!. Ms. Nance did not “wait 2 years…” before notifying the production. Rather she saw the show in previews on Broadway in late 2009. Negotiations to resolve the matter have been ongoing as has the defendants’ unauthorized use of the image;
2. The photo shot on black and white film, was colorized, cropped and made into a projection which (in some uses) is displayed in reverse;
3. The image appears in defendants’ materials and is at one point erroneously credited the photo to another photographer. This false attribution is a violation of The Lanham Act (trademark law).
4. The Public Relations person(s) for the show – presumably not a lawyer(s) – is/are substantially quoted as saying:
A. “Had we known we would have stopped using the image”. Interestingly, he is not quoted anywhere as saying that his clients would have sought permission for use and offered to pay Ms. Nance for a license to use the image and alter/crop/colorize it;
B. “That one can’t copyright a photo of a public building”. Again, the PR people as far as we know, are not lawyers. One can in fact copyright such an image and Ms. Nance did just that.
5. Will Smith, nor his wife nor Jay Z are named defendants. They are producers of the show.
6. Each cause of action claims a sum to be determined by the Court or jury but which we believe to be not less than $150,000. The complaint also seeks an injunction ordering that the uses by the defendants of Ms. Nance’s image – altered or otherwise – cease and that all uses in any/all media not discovered by us (if any) be disclosed.
That Ms. Nance was the creator of the image is not in dispute. Her photo credit appears prominently on the image in the museum exhibitions of the work as well and the use of the image in the book “Black President – The Art & Legacy of Fela Kuti” (14 point bold type).
The unauthorized uses which resulted in the litigation appear in the form(s) of cd inserts, souvenir program, music videos, promotional videos and most striking – as the predominant artistic element in the set of the show. The image (occasionally shown in reverse) dominates the stage for some 40% of the show and appears as a projection some 40 – 50 feet wide. This is in our experience, a rather unusual manner in which a photo has been employed without permission. But then again, ya’ never know.
For those of you who wish to read the complaint, it is part of the public record: Marilyn Nance v. Fela, USDC, Southern District of New York, 10 CIV 5676, Judge STEIN. We will answer questions of a general nature regarding the legal issues raised by the suit but will not entertain any questions about anything not contained in the public record.
A Google search on the case will reveal about 30 or so articles the better articles are at:
Edward C. Greenberg