On or about April 12, 1990, the AFA and Wildmon published and distributed throughout the United States, including the Southern District of New York, the AFA pamphlet (the "pamphlet") in an effort to stop 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 1,578 newspapers, at least twenty-eight of which were located in this district. Without plaintiff's authorization, Wildmon photographically copied fourteen fragments of plaintiff's works which he believed most offensive to the public and reproduced these fragments in the AFA pamphlet. These fourteen images, with three exceptions, explicitly depict sexual acts. The other three images portray Christ with a hypodermic needle inserted in his arm, and two ambiguous 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 Tax Dollars Helped Pay For These 'Works of Art.'" It states in the introductory sentence that "the photographs appearing on this sheet were part of the David Wajnarowicz [sic] 'Tongues of Flame' exhibit catalog." The envelope in which the AFA pamphlet was mailed states that the "photos enclosed in this envelope were taken from the catalog of the 'Tongues of Flame' exhibit" and is marked "Caution -- Contains Extremely Offensive Material."

CONCLUSIONS OF LAW

As stated in the Court's oral ruling from the bench at the start of the trial, jurisdiction and venue are proper in this Court pursuant to 28 U.S.C. ßß 1331, 1332, 1338, 1391 and 1400 in light of defendants' publication and distribution of the AFA pamphlet in this district. Personal jurisdiction over defendants is proper under New York's Civil Practice Law and Rules ß 302(a)(2). Wildmon's claim that plaintiff has failed to state any claim against him personally, as distinguished from his capacity as Executive Director of the AFA, is rejected. Wildmon may be held personally liable because plaintiff has proved through the testimony of Wildmon himself that he was personally responsible for the alleged violations. See Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (defendant personally liable for infringement if he has "the right and ability to supervise the infringing activity and also has a direct financial interest in such activities"); Davidson v. Vohann of California, Inc., 1988 U.S. Dist. LEXIS 9394 at 3 (S.D.N.Y. Aug. 22, 1988) (defendant personally liable for infringement if "plaintiff proves that he personally participated in the infringement"); Lottie Joplin Thomas Trust v. Crown Publishers, 456 F. Supp. 531, 537 (1977), aff'd, 592 F.2d 651 (2d Cir. 1978) ("An individual, including a corporate officer, director or stockholder, who causes a corporate defendant to infringe, or personally participates in the acts constituting the infringement is jointly and severally liable for the infringement.").

I. New York's Artists' Authorship Rights Act

New York's Artists' Authorship Rights Act, N.Y. Cultural Affairs Law Section 14.03 (McKinney's Supp. 1990), provides, in relevant part, that:

To fall within the preemption provision of the federal copyright act, 17 U.S.C. ß 301, "(1) the work in question must be within the subject matter of copyright as defined in 17 U.S.C. sections 102, 103 and (2) the state law created right must be equivalent to any exclusive copyright rights in 17 U.S.C. section 106. " Brignoli v. Balch Hardy and Scheinman, Inc., 645 F. Supp. 1201, 1204 (S.D.N.Y. 1986). If the state law provides different rights than are available under the federal law, it is not preempted. As stated in Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F. Supp. 1523, 1535 (S.D.N.Y. 1985), "the prevailing test may be referred to as the 'extra element' test." That extra element must change not merely the scope of the action but its nature, so that the state law claim is qualitatively different from a copyright infringement claim. Where the state law violation is predicated upon an act incorporating elements beyond mere copying, the action is qualitatively different and there is no preemption. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 200 (2d Cir. 1983), rev'd on other grounds, 471 U.S. 539, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985). See, e.g., Brignoli v. Balch Hardy and Scheinman, Inc., 645 F. Supp. 1201, 1205 (S.D.N.Y. 1986) (allegations of breach of contract as well as unauthorized reproduction precludes preemption); Gemveto Jewelry Co. v. Jeff Cooper, Inc., 613 F. Supp. 1052, 1063-64 (S.D.N.Y. 1985), vacated on other grounds, 800 F.2d 256 (Fed. Cir. 1986) (allegations of unfair competition in addition to unauthorized reproduction precludes preemption).

Although the rights to reproduce and to produce derivative work are protected by the Copyright Act, section 14.03 of the New York Artists' Authorship Rights Act as amended is indeed qualitatively different than federal copyright law in both its aim and its elements. The state Act endeavors to protect an artist's reputation from the attribution to him of altered, defaced, mutilated or modified works of art. See Damich, The New York Artists' Authorship Rights Act: A Comparative Critique, 84 Colum. L. Rev. 1734, 1738-39 (1984) ("It may be argued that there is a qualitative difference between New York and federal law, since the state statute aims at protecting the artist's reputation, a species of tort law traditionally reserved to the states."). Moreover, a claim under this statute requires proof of elements not required to prove copyright infringement, namely (a) the artwork must be altered, defaced, mutilated or modified; (b) the altered, defaced, mutilated or modified artwork must be attributed to the artist, or displayed in such circumstances as to be reasonably understood to be his work; and (c) this attribution must be reasonably likely to damage the artist's reputation. See Damich, A Comparative Critique, 84 Colum. L. Rev. at 1738 ("The right of attribution found in the . . . New York statute[ ] would appear sufficiently distinct to escape preemption."). While both plaintiff's state law and copyright claims are based upon the same cropped reproductions contained in the AFA pamphlet, they are qualitatively different and hence there is no preemption. ²

Defendants maintain that the statute's legislative history supports their contention that the display or publication envisioned is the altered original or limited edition multiple by a subsequent owner. The New York State Assembly Memorandum in Support of Legislation submitted to the legislature in accordance with Assembly Rules, addressed the purpose of the Act, stating:

Defendants' additional contention that even if the words "reproduction thereof" apply to their copies of plaintiff's works, the Act still does not apply because they copied plaintiff's catalogue, not his original artwork, lacks merit. That defendants photographed an authorized photograph, instead of the original work, does not exempt their alteration from the statute. To hold otherwise would eviscerate any protection under the Statute once an artist publishes his work in conjunction with an exhibition since someone wanting to alter his work could simply copy from the catalogue rather than the original work.

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

Defendants also contend that their reproductions are not within the scope of the Act because the pamphlet was not publicly displayed or published. The Court finds this contention disingenuous. In the Copyright Act, the definition of "publication" is:

Yenawine testified that because the details in the pamphlet imply that plaintiff's work consists primarily of explicit images of homosexual sex activity, plaintiff's name will be "anathema" to museums. Museums unfamiliar with plaintiff's work, believing the pamphlet to be representative of his work, may fail to review his work, even though many of plaintiff's art works do not contain sexual images. Even museums familiar with plaintiff's work may be reluctant to show his work due to his perceived association with pornography.

Yenawine stated that this self-censorship will have an adverse impact on the value of plaintiff's work; individuals will be less likely to purchase 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 turn, reduce the incentive for galleries and museums to include plaintiff's work in future shows. Additionally, the public may associate plaintiff with only the sexually explicit images which were taken out of his intended political and artistic context, resulting in a reasonable likelihood of harm to his reputation and to the market for his work. Yenawine further testified that although corporations would not have been likely to purchase those works of plaintiff's which contain sexual images, "a great number of [plaintiff's] images . . . have no sexual representations whatsoever and deal with all sorts of other kinds of images. . . ."

When comparing the situation 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 so that viewers could judge for themselves the merit of the works, unlike the works of plaintiff which were presented in fragments so that readers of the pamphlet could not fairly judge his works. Yenawine also 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 by investors who had substantial interest in protecting the value of their investments.

Defendants next assert that where the speech involves matters of public concern allegedly injuring the reputation of a public figure, actual malice must be proven to defeat First Amendment protection. While agreeing with the quotations submitted by defendants eloquently extolling the virtues of the First Amendment, this Court cannot agree that the alteration, defacement, mutilation or modification of artwork is protected speech, entitling defendants to immunity where they acted without actual malice.  Clearly, the pamphlet contained protectable speech, 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 about of political and social changes deserved by the people." See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 11 L. Ed. 2d 686, 84 S. Ct. 710, 720 (1964). The public display of an altered artwork, falsely attributed to the original artist, however, is not the type of speech or activity that demands protection, because such deception serves no socially useful purpose. The New York Statute does not impede truthful speech, but rather prevents false attribution, requiring only accurate labeling to permit dissemination of the desired message. Such labeling in no way diminishes the force of the message. Defendants remain free to criticize and condemn plaintiff's work if they so choose. They may present incomplete reproductions labeled as such or, alternatively, without attribution of such images to plaintiff. However, they may not present as complete works by plaintiff, selectively cropped versions of his originals.

Defendants also charge that the statute is unconstitutional (1) as applied, (2) on its face and (3) under the New York State Constitution. For the following reasons, the Court cannot agree. As stated above, 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 there 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 protected speech, the latter is not. Accordingly, the First Amendment does not foreclose application of this statute to defendants' pamphlet. Similarly, narrowly tailored injunctive relief preventing only the false attribution to plaintiff of altered reproductions of his work does not constitute an unlawful prior restraint of protected speech.⁸

Nor is the statute overly broad. As discussed above, because the statute proscribes only the false attribution to an artist of an altered original, limited edition or reproduction of his work, it does not sweep within its ban speech which is protected by the First Amendment. Nor does it prohibit conduct specifically protected by federal copyright laws, as explained above under the preemption section. 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 benefit of both artists and the viewing public.

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

II. Violation of the Lanham Act

After reviewing counsels' pre-trial briefs concerning plaintiff's claim for false designation of origin, in an order announced orally from the bench at the commencement of the trial, the Court dismissed plaintiff's Lanham Act claim:

   (1) is likely to cause confusion, or to cause mistake, or to deceive as to the . . . origin, sponsorship,
or approval of his or her goods, services, or commercial activities by another person, or

(2) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities
or geographic origin of his or her or another person's goods, services, or
commercial activities,

shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

Under this proposed change only false or misleading "advertising or promotion" would be actionable, whether it pertained to the advertiser itself or another party. The change would exclude all other misrepresentations from section 43(a) coverage. These others are the type which raise free speech concerns, such as a Consumer Report which reviews and may disparage the quality . . . of products, [and] misrepresentations made by interested groups which may arguably disparage a company and its products . . . .

The proposed change in section 43(a) should not be read in any way to limit political speech, consumer or editorial comment, parodies, satires, or other constitutionally protected material. . . . The section is narrowly drafted to encompass only clearly false and misleading commercial speech.

S. 1883, 101st Cong., 1st Sess., 135 Cong. Rec. 1207, 1217 (April 13, 1989).

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 sale of goods or services by the defendant. See, e.g., PPX Enterprises, Inc. v. Audiofidelity, Inc., 746 F.2d 120, 125 (2d Cir. 1984) (marketing albums purporting to feature artist, but which did not contain such performances); Dallas Cowboys Cheerleaders, Inc., v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir. 1979) (misappropriating cheerleader uniform in sexually explicit film); RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058 (2d Cir. 1979) (imitating trade dress of established, competitive punch); American Home Products, Corp. v. Johnson & Johnson, 577 F.2d 160 (2d Cir. 1978) (presenting false and misleading claims in comparative advertising of analgesics); Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976) (presenting garbled version of plaintiffs' comedy program to public); Benson v. Paul Winley Record Sales Corp., 452 F. Supp. 516 (S.D.N.Y. 1978) (deceptive marketing of old records of newly-successful recording artist). Because 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 Act.

III. Copyright Infringement

To prevail in a copyright infringement action, the copyright owner must show (1) ownership of the copyright at issue, and (2) a violation of one of the exclusive rights accorded the copyright owner. See Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir. 1985). Plaintiff is the owner of the copyright in the artworks at issue, each of which was registered in plaintiff's name in the U.S. Copyright Office on May 11, 1990. The certificate of registration constitutes prima facie evidence of the validity and ownership of the copyright. 17 U.S.C. ß 410(c) (1982); Dollcraft Industries v. Well-Made Toy Mfg. Co., 479 F. Supp. 1105, 1114 (E.D.N.Y. 1978).

By directly copying portions of several of plaintiff's copyrighted artworks, defendants have violated plaintiff's exclusive right "to reproduce the copyrighted work in copies." 17 U.S.C. ß 106(1). By editing or cropping plaintiff's artworks and presenting the unauthorized modified version, defendants have additionally violated plaintiff's exclusive right to prepare derivative works. 17 U.S.C. ß 106(2).

A. Fair Use

Defendants raise the affirmative defense that their use of the images in the AFA pamphlet for the clear purpose of criticism and comment on an issue of public concern and for petitioning the government for redress of grievances is protected by the doctrine of "fair use" under 17 U.S.C. ß 107. Defendants claim that having voluntarily accepted public funding by the NEA to support publication of his artwork, plaintiff may not prevent the AFA or Wildmon from criticizing that funding.

Described as "the most troublesome in the whole law of copyright," Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662, 42 U.S.P.Q. (BNA) 164, (2d Cir. 1939), [HN18] the issue of fair use requires an intricate balancing of complex factors.  See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1255 (2d Cir. 1986). As an "equitable rule of reason," application of the fair use doctrine requires a case-by-case analysis.  Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448 n. 31, 78 L. Ed. 2d 574, 104 S. Ct. 774, 792 (1984); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 85 L. Ed. 2d 588, 105 S. Ct. 2218, 2224 (1985).   The Copyright Act enumerates the following four non-exclusive factors to be considered in determining whether a given use is "fair":

IV. Defamation

Plaintiff claims that in excerpting fragments from plaintiff's 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 by attributing the excerpted fragments to plaintiff, defendants defamed his work and damaged his reputation.

To state a claim for libel, plaintiff must demonstrate first that defendants' communication has a defamatory meaning. Because plaintiff concedes that he is a limited purpose public figure, he must also show that defendants acted with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 11 L. Ed. 2d 686, 84 S. Ct. 710, 726 (1964); see Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). While the former requirement is satisfied here, the latter is not, defeating plaintiff's defamation claim.

As the Second Circuit Court has noted, "it is well settled that 'a writing which tends to disparage a person in the way of his office profession or trade' is libelous per se." Davis v. Ross, 754 F.2d 80, 82 (2d Cir. 1985) (quoting Nichols v. Item Publishers Inc., 309 N.Y. 596, 600, 132 N.E.2d 860 (1956) (original emphasis)). As the Court ruled in its opinion and order issuing a preliminary injunction, the pamphlet is

Defendants are not protected by their placement of the phrase "works of art" in quotation marks to identify the phrase as "tongue-in-cheek rhetorical hyperbole." It is clear that defendants' message was serious in nature: plaintiff's works of art were unworthy of NEA funding. Moreover, quotations were used in only four of the fifteen references to plaintiff's work in the pamphlet and its accompanying literature. By presenting what are, standing alone, essentially pornographic images as plaintiff's works of art, without noting that the images are merely details from larger composite works, the pamphlet is libelous per se.

"Actual malice" does not require a showing that defendants harbored ill will toward the plaintiff, but rather that defendants had "'a high degree of awareness of [the communication's] probable falsity,' or . . . 'in fact entertained serious doubts as to the truth of [their] publication.'" Lerman v. Flynt Distrib. Co., 745 F.2d 123, 139 (2d Cir. 1984), cert. denied, 471 U.S. 1054, 85 L. Ed. 2d 479, 105 S. Ct. 2114 (1985); see New York Times Co. v. Sullivan, 376 U.S. 254. Although actual malice is subjective, Sharon v. Time Inc., 599 F. Supp. 538, 564 (S.D.N.Y. 1984), it may be inferred from objective facts, because a defendant will rarely admit that he acted with actual malice. Bose Corp. v. Consumers Union, 692 F.2d 189, 196 (1st Cir. 1982), aff'd 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984); Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982), cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233 (1983).

Whether Wildmon acted with such reckless disregard of the truth when reproducing only the portions and identifying them as plaintiff's "works of art," while a difficult question, has been illuminated by  his testimony at trial. Wildmon admitted that in selecting the details to be 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 not over the presentation of the images but the depiction 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, but merely used the quoted phrase in a sarcastic sense, to indicate that the author did not consider the works deserving of the term "art." And his statements that "the photographs appearing on this sheet were part of the David Wajnarowicz [sic] 'Tongues of Flame' exhibit catalog," and that the "photos enclosed in this envelope were taken from the catalog of the 'Tongues of Flame' exhibit . . . (emphasis added)," are literally accurate because the photographs were excerpted from the exhibit catalog, even though these statements failed to make clear that those photographs depicted only portions of composite works. Indeed, Wildmon continues to deny that his statements were inaccurate.

While the deliberate omission of qualifying information may demonstrate actual malice, See Goldman v. Ginzburg, 414 F.2d 324, 326-37 (2d Cir. 1968), cert. denied, 396 U.S. 1049, 24 L. Ed. 2d 695, 90 S. Ct. 701 (1970); Westmoreland v. CBS Inc., 596 F. Supp. 1170, 1174-74 (S.D.N.Y. 1984), the Court is unconvinced that Wildmon knowingly omitted qualifying language that would have rendered his descriptions less misleading. Although Wildmon's statements had the potential to mislead reasonable readers, his actions do not exhibit "'a high degree of awareness of [the communication's] probable falsity,' or . . . [that he] 'in fact entertained serious doubts as to the truth of his publication.'" Lerman v. Flynt Distrib. Co., 745 F.2d at 139; see New York Times Co. v. Sullivan, 376 U.S. at 279. The Court is unpersuaded by plaintiff's contention that other evidence, including Wildmon's sophistication and repetition of the misstatements after being informed of them by the Chairman of the NEA and this lawsuit, belies his lack of intent. Additionally, Wildmon's knowledge and prior use of the Human Events editorial which referred to the image reproduced therein as a "portion" of a collage does not indicate his conscious decision to substitute such language with more misleading references. As to plaintiff's assertion that the pamphlet implies, contrary to fact, that the exhibit was funded by the NEA after the funding restriction became effective and after John Frohnmayer became the Chairman of the NEA, Wildmon testified that "in [his] mind, if this exhibit took place in March and the law was passed in [the preceding] November . . . then it's reasonable to assume that this exhibit contained the kind of material which the law supposedly was to prohibit." The Court believes that Wildmon's state of mind was not sufficiently reckless to satisfy the actual malice requirement for finding defamation against a public figure. Because plaintiff has not proved actual malice with convincing clarity, plaintiff's defamation claim is dismissed.

V. Remedies

A. Prohibitive Injunction 

New York's Artists' Authorship Rights Act specifically provides for equitable relief. N.Y. Art & Cult. Aff. Law § 14.03(4)(a) (McKinney's Supp. 1990). Because plaintiff has demonstrated success on his claim for relief, he is entitled to injunctive relief upon a showing of irreparable injury.¹³

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

   This injunction shall not 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 United States Congress or other United States government officials to cease the direct or indirect subsidy or support 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 one of plaintiff's art works constitutes the complete work.

B. Mandatory Injunction

Plaintiff also seeks an order requiring defendants to undertake a corrective mailing and to publish a corrective advertisement in a major daily newspaper. New York's Artists' Authorship Rights Act specifically provides for a right of "disattribution," N.Y. Arts & Cult. Aff. Law § 14.03(2)(a) (McKinney's Supp. 1990), and the Court believes it just to require defendants to distribute a corrective communication to all those to whom they sent the original pamphlet. To minimize mailing costs, this corrective communication, to be mailed within ninety days from the date of this opinion and order, may be joined with any other distribution by the defendants. The corrective communication should be submitted to the Court for approval after comment by all parties.

C. Damages

Under New York's Artists' Authorship Rights Act, an artist is also entitled to legal relief, i.e. damages, for a violation of the Act. N.Y. Art & Cult. Aff. Law § 14.03(4)(a) (McKinney's Supp. 1990). Even though plaintiff has established that defendants' actions were reasonably likely to result in damage to his reputation, he has proven no actual damages. So far as the record shows, not one gallery or museum currently scheduled to exhibit plaintiff's work has cancelled; nor has one planned sale been cancelled. Plaintiff presented no evidence that he has been harmed in any other specific, quantifiable way. Accordingly, the Court hereby awards plaintiff nominal damages in the amount of $ 1.00.

CONCLUSION

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

SO ORDERED. 

1   Both Ronald Litoff and Tracy involved the preemption of a section of the N.Y. Arts and Cultural Affairs Law concerning only the right of reproduction, a property right expressly granted in, and thus preempted by the Copyright Act. Neither case concerned a claim that defendant had mutilated an artwork, attributed it to the plaintiff and damaged his reputation. back

2   That the Copyright Act does not extend to the rights protected in the New York Statute was recently confirmed on June 5, 1990, when the House of Representatives passed by voice vote a bill that would give visual artists a cause of action for the destruction and mutilation of their works. The bill, H.R. 2690, entitled "Visual Artists Rights Act of 1990," adds a new section 106A to the Copyright Act, enabling artists to sue for infringement of certain "moral rights." If enacted, the statute would provide that "no person is entitled to any such right [as granted by section 106A] or equivalent right in any work of visual art under the common law or any statutes of any State." Id. This amendment to the Copyright Act would arguably preempt state laws such as the New York Artists' Authorship Rights Act which currently provide similar rights, demonstrating that Congress does not currently view the various state "moral rights" laws, including New York's, as preempted by the Copyright Act. On June 28, 1990, the Senate Subcommittee on Patents, Copyrights and Trademarks amended and approved S. 1198, a bill substantially similar to H.R. 2690 although several differences have yet to be resolved. back

3   "'Reproduction'" means a copy, in any medium, of a work of fine art, that is displayed or published under circumstances that, reasonably construed, evince an intent that it be taken as a representation of a work of fine art as created by the artist." N.Y. Arts & Cultural Affairs Law ß 11.01(16) (McKinney's 1990). back

4   See Damich, A Comparative Critique, 84 Colum. L. Rev. at 1741 ("Clearly, the thrust of the New York statute is more toward protection of the artist's reputation than toward protection of the work."). back

5   If the words "reproduction thereof" were intended to mean the reproduction of an altered original or limited edition multiple, as defendants maintain, those words would not precede the words "in an altered, defaced, mutilated or modified form" but would have instead followed them. back

6   The Stipulated Findings of Fact provide that:

   "the AFA Pamphlet was mailed to at least 28 individuals in this district, including John Cardinal O'Connor, three major daily newspapers -- The New York Times, The New York Daily News, and the New York Post, and at least one radio station, WMCA." back

7   The Court also rejects defendants' claim that the limitation contained in section 14.03(3)(e) of the statute to "works of fine art . . . of not more than 300 copies" precludes application in this case. This language does not refer to the defendants' altered material, as defendants now insist, nor does it refer to plaintiff's catalogue, a compilation of his paintings, essays and interviews, as defendants insisted in their pretrial briefs. This limitation pertains to those underlying works protected by the statute, in this case, plaintiff's original paintings. back

11   The complaint states that,

Complaint, para. 19. back


12   Estoppel is not appropriate is in this case because by exhibiting his works at a show that accepted a $ 15,000 NEA grant, plaintiff did not thereby forfeit the right to protect his works, most of which were created without the assistance of any government funding. The facts presented demonstrate that defendants cannot establish [HN31] the requisite factors of the traditional estoppel defense: (1) that the party to be estopped knew the facts of the defendant's infringing conduct; (2) that he intended his conduct to be acted on or acted so that the party asserting the estoppel had a right to believe that it was so intended; (3) that the defendant was ignorant of the true facts; and (4) that he relied on the plaintiff's conduct to his detriment. See Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 456 F. Supp. 531, 535 (S.D.N.Y. 1977), aff'd, 592 F.2d 651 (2d Cir. 1978). back