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575 LEXINGTON AVENUE
 NEW YORK, NY 10022
 PH. 212-446-2300
 FAX 212-446-2350
 November 7, 2016
Via CM/ECF
The Honorable Sidney H. Stein United States District Court for the Southern District of New York 500 Pearl Street  New York, NY 10007 Re:
Graham v. Prince
, No. 1:15-cv-10160-SHS Your Honor: On behalf of Defendants in the above-referenced matter, I write in response to Plaintiff Donald Graham’s letter, dated November 4, 2016. As explained below, this Court should reject the arguments put forth in Graham’s letter. First, the ultimate holding of the Second Circuit in
TCA Television Corp. v. McCollum
,  No. 16-134-cv, 2016 WL 5899174 (2d Cir. Oct. 11, 2016), was not related to fair use. Despite discussing the doctrine, the Second Circuit ultimately affirmed dismissal of the copyright suit  because “plaintiffs fail[ed] plausibly to allege a valid copyright interest.”
 Id.
 at *1. Indeed, the Court
held
: “We identify no merit in any of the theories relied on by plaintiffs to support their copyright claim and, accordingly, we affirm dismissal of the amended complaint for failure to  plead a valid copyright.”
 Id.
 at *14. Therefore, the entire discussion of fair use is dicta. Second, contrary to Plaintiff’s argument, the fair use discussion in
TCA Television
is inapposite. In that case, the Second Circuit noted that the Broadway play
 Hand to God 
 did not make fair use of the Abbot and Costello routine
Who’s on First 
 because “the extent of defendants’ taking is identically comedic to that of the original authors, that is, to have two  performers expand on a singular joke in order to generate increasing audience laughter.”
 Id.
 at *10. In other words, the play exploited the routine’s creative virtue “in the manner it was made to be used,” without adding any new expression, meaning, or message.
 Id.
 By contrast, Prince used Graham’s photograph for a highly transformative purpose: as a commentary on social media. This new meaning and message is apparent to any reasonable observer who looks at the artwork. Third, Graham’s focus on the “verbatim” or “excessive” use in
TCA Television
 is misguided: The Court noted that
 Hand to God 
 unnecessarily used an “extensive[]” amount of the
Who’s on First 
 routine, “some dozen of the original exchanges,” for “its original comedic effect”
BOIES, SCHILLER & FLEXNER LLP
Case 1:15-cv-10160-SHS Document 44 Filed 11/07/16 Page 1 of 2
 
2 and without any transformation.
 Id 
. Here, Prince’s transformative purpose—to provide a commentary on social media—required the incorporation of the entire Instagram post (which included almost the entire Graham photograph) to accomplish that purpose. Prince’s use cannot  be qualified as “excessive” where he used as much of Graham’s photograph as was necessary to achieve his transformative purpose. Finally, Graham misconstrues
TCA Television
 as holding that a “sharply different context” is inconsequential to the fair use analysis. Quite the contrary, the Second Circuit merely noted that using the routine in the different context of a dark Broadway play did not salvage the defendant’s fair use argument because there was no transformative purpose to begin with.
 Id.
1
 Graham also misinterprets
TCA Television
 as focused solely on physical alteration, a dangerously narrow view of fair use that he also expounded in his opposition brief. The Second Circuit merely noted that the play had used the routine “almost verbatim” for no apparent  purpose other than to evoke the famous routine.
 Id.
 at *9–*10 (“The only purpose served by the extent of defendants’ taking is identically comedic to that of the original authors.”). That is a far cry from here, where Prince used the social media post for the specific transformative purpose of commentary. In sum,
TCA television
 is readily distinguishable and does not alter the conclusion that this case should be dismissed with prejudice. Respectfully submitted,
 /s/ Joshua I. Schiller
Joshua I. Schiller
Counsel for Defendant Richard Prince
cc: All Counsel (
via CM/ECF 
)
1
 Graham’s argument is also a red herring because Prince’s transformation derives from new elements  beyond just a new context. (Defs.’ Br. at 14–15.)
Case 1:15-cv-10160-SHS Document 44 Filed 11/07/16 Page 2 of 2

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