Documentos de Académico
Documentos de Profesional
Documentos de Cultura
RICHARD W. CLARY
.JAMES D. COOPER
STEPHEN L. GORDON
DANIELL. MOSLEY
ROBERT H . BARON
C. ALLEN PARKER
SUSAN WEBSTER
OAVIO MERCADO
ROWAN 0. W I LSON
CHRIST I NE A. VARNEY
PETER T. BARBUR
SANORA C . GOLOSTEIN
THOMAS G. RAFFERTY
MICHAELS. GOLDMAN
RICHARD HALL
.JULIE A . NORTH
ANOREWW. NEEDHAM
STEPHEN L. BURNS
KEITH R. HUMMEL
DAVID J , KAPPOS
DAN I EL SLI FKI N
ROGER G. BROOKS
WILLIAM V. FOGG
FAIZA J . SAEED
RICHARD J. STARK
THOMAS E, DUNN
MARK I. GREENE
DAVID R . MARRIOTT
MICHAEL A . PASK I N
ANDREW J, PITTS
MICHAEL T . REYNOLDS
,A.,NTONY L. RYAN
GEORGE. ZOBITZ
GEORGE A . STEPHANAKIS
DARIN P. MCATEE
GARY A. BORNSTEI N
TIMOTHY G . CAMERON
KARI N A . DEMAS I
LIZABETHANN R. EISEN
DAVI 0 S , Fl N KELSTE I N
DAVID GREENWALD
RACHEL G. SKAISTIS
PAUL H. ZUMBRO
WORLDWIDE PLAZA
+ 1-212-474-1000
FACSIMILE :
+1-212-474-3700
CITYPO INT
ONC ROPCMAl<ER STREET
+1-212-474-1288
WRITER ' S EMAIL ADDRESS
cdavis@cravath.com
JOEL F. HEROLD
ERIC W. HILFERS
GEORGE F . SCHOEN
ERIK R. TAVZEL
CRAIG F . ARCELLA
TEENA-ANN V. SANKOOR I KAL
ANDREW R. THOMPSON
DAMIEN R. ZOUl!!IEK
LAUREN ANGELILLI
TATIANA LAPUSHCHIK
ERIC L. SCHIELE
ALYSSA K. CAPLES
.JENNIFER S. CONWAY
J . LEONARD TETI , ti
0. SCOTT BENNETT
TINGS . CHEN
CHRISTOPHER K. FARGO
KENNETH C. HALCOM
DAVID M. STUART
JONATHAN L. DAVIS
AARON M . GRUBER
0 . KEITH HALLAM, Ill
OMIO H. NASAS
DAMARIS HERNANDEZ
.JONATHAN J. KATZ
SPECIAL COUNSEL
SAMUEL C . BUTLER
GEORGE J . GI LLESPI E, Ill
OF' COUNSEL
MICHAEL L. SCHLER
November 4, 2016
Graham v. Prince et al.. No. 1:15-cv-10160-SHS (S.D.N.Y.)
Dear Judge Stein:
This Firm represents Plaintiff Donald Graham in the above-referenced
action. We write to alert the Court to the Second Circuit's recent decision in TCA
Television Corp. v. McCol/um, No. 16-134-cv, 2016 WL 5899174 (2d Cir. Oct. 11 , 2016)
(attached hereto as Exhibit A), which undermines Defendants' motion to dismiss on fair
use grounds.
Defendants' chief argument is that framing Graham' s unaltered
photograph with social media elements is a transformative use because a distinct message
is conveyed by the different context. (See Defs.' Mem. at 3; see also id. at 6 ("different
context"); Id. at 15 ("wholly different context"); Defs.' Reply at 2 ("altered context"); Id
at 3 ("fundamentally different context"); Id at 4 ("new context").) TCA Television flatly
rejects Defendants' context-based argument, finding a "sharply different context"
inconsequential where the secondary use had no bearing on the original work. See 2016
WL 5899174at*10. In TCA Television, the use of a comedy routine for a dramatic
purpose was found not transformative because, context notwithstanding, the routine itself
appeared "irrelevant to that purpose". Id. at *9. Graham's photograph is similarly
irrelevant to Prince's stated purpose: a commentary on social media, conveyed not by
"Graham's solitary image of a human being smoking" but rather by "the trappings of an
Instagram post". (Defs.' Reply at 3.)
TCA Television also debunks Defendants' assertion that Cariou v. Prince,
714 F.3d 694 (2d Cir. 2013), compels dismissal of Graham' s complaint. (See Defs. '
Mem. at 1.) Like the TCA Television defendants' "almost verbatim" performance of a
comedy routine, Prince's unaltered and unobstructed use of Graham's photograph is a far
cry from the "barely recognizable" use of original photographs in Cariou. See 2016 WL
5899174 at *9. Prince's utter lack of alteration to Graham's work precludes dismissal
t'#f12rJ- -:_
Christopher P. Davis
Hon. Sidney H. Stein
U.S. District Court, Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl St.
New York, NY 10007-1312
Encl.
VIAECF
Copies w/encl. to: Counsel of Record
VIAECF
EXHIBIT A
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
2016 WL 5899174
Only the Westlaw citation is currently available.
United States Court of Appeals,
Second Circuit.
TCA Television Corp., Hi Neighbor, Diana
Abbott Colton, PlaintiffsAppellants,
v.
Kevin McCollum, Robert Askins, Does, ABC
Companies, 110, Hand to God LLC, The
Ensemble Studio Theater, Inc., Manhattan
Class Company, Inc., DefendantsAppellees,
Broadway Global Ventures, CMC, Morris Berchard,
Mariano V. Tolentino, Jr., Stephanie Kramer,
Lams Productions, Inc., Desimone Winkler,
Joan Raffe, Jhett Tolentino, Timothy Laczynski,
Lily Fan, Ayal Miodovnik, JAM Theatricals Ltd.,
Key Brand Entertainment Inc., Defendants.
Docket No. 16-134-cv
|
August Term, 2015
|
Argued: June 23, 2016
|
Decided: October 11, 2016
Synopsis
Background: Comedians' heirs brought copyright
infringement action against producers of theatrical
production based on comedians' Who's On First?
routine. The United States District Court for the Southern
District of New York, George B. Daniels, J., 151
F.Supp.3d 419, granted producers' motion to dismiss.
Heirs appealed.
Affirmed as modified.
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
I. Background
The following facts derive from plaintiffs' amended
complaint, incorporated exhibits, and documents
susceptible to judicial notice. See Goel v. Bunge, Ltd.,
820 F.3d 554, 559 (2d Cir. 2016) (acknowledging that,
on motion to dismiss, courts may consider documents
appended to or incorporated in complaint and matters of
which judicial notice may be taken); Island Software &
Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261
(2d Cir. 2005) (stating that court may take judicial notice
of copyright registrations). For purposes of this appeal,
we presume these facts to be true. See Anschutz Corp. v.
Merrill Lynch & Co., 690 F.3d 98, 102 (2d Cir. 2012).
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
C. Hand to God
As described in the amended complaint, Hand to God
(the Play) is a dark comedy about an introverted
student in religious, small-town Texas who finds a creative
outlet and a means of communication through a hand
puppet, wh[ich] turns into his evil or devilish persona.
Am. Compl. 58. After two successful off-Broadway runs,
Hand to God opened to critical acclaim on Broadway
in the spring of 2015. Through press coverage, plaintiffs
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
2. Promotional Materials
Plaintiffs allege that, in online promotional materials for
the Play, defendants used a video clip of Jason and his
puppet performing Who's on First? to stoke interest in
and sell tickets for the Play. Am. Compl. 69, 89. These
promotional materials are not part of the court record.
II. Discussion
A. Dismissal Was Not Properly Based on Fair Use
1. Standard of Review
[1] We review de novo a judgment of dismissal under Fed.
R. Civ. P. 12(b)(6), accepting all factual allegations in the
amended complaint and its incorporated exhibits as true
and drawing all reasonable inferences in plaintiffs' favor.
See Concord Assocs., L.P. v. Entm't Props. Tr., 817 F.3d
46, 52 (2d Cir. 2016). The challenged dismissal here is
based on the district court's determination that plaintiffs
could not succeed on their copyright infringement claim
because the Rule 12(b)(6) record established defendants'
fair use defense as a matter of law.
[2] [3] Our review of that decision is necessarily informed
by certain basic copyright principles. First, the law
affords copyright protection to promote not simply
individual interests, butin the words of the Constitution
the progress of science and useful arts for the
benefit of society as a whole. U.S. Const. art I, 8,
cl. 8. As the Supreme Court has explained, copyright
protection is based on the economic philosophy ... that
encouragement of individual effort by personal gain is
the best way to advance public welfare. Mazer v. Stein,
347 U.S. 201, 219, 74 S.Ct. 460, 98 L.Ed. 630 (1954).
In short, the monopoly created by copyright ... rewards
the individual author, but only in order to benefit the
public. Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539, 546, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)
(internal quotation marks omitted); see Fox Film Corp.
v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 76 L.Ed.
1010 (1932) (The sole interest of the United States and
the primary object in conferring the monopoly lie in the
general benefits derived by the public from the labors of
authors.).
*6 [4] Second, and consistent with this public purpose,
the law has long recognized that some opportunity
for fair use of copyrighted materials is necessary to
promote progress in science and art. Campbell v. Acuff
Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164,
127 L.Ed.2d 500 (1994); Iowa State Univ. Research
Found., Inc. v. Am. Broad. Cos., 621 F.2d 57, 60 (2d
Cir. 1980) (stating that fair use doctrine permits courts
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
Case
Document
TCA Television
Corp.1:15-cv-10160-SHS
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
Inc., 510 U.S. at 579, 114 S.Ct. 1164. 9 But how does
a court decide whether and to what extent the new
work is transformative ? Id. Campbell instructs that a
court properly considers whether the new work merely
supersedes the objects of the original creation, or instead
adds something new, with a further purpose or different
character, altering the first with new expression, meaning,
or message. Id. (emphases added) (alterations, citations,
and internal quotation marks omitted).
9
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
11
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
10
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
13
14
11
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
12
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
13
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
1. Copyright Assignment
[20] In rejecting defendants' copyright invalidity
challenge, the district court thought that [t]he contract
language, together with UPC's subsequent registration of
the copyrights for Tropics and The Naughty Nineties,
might admit a finding of implied assignment of the initial
copyright from Abbott and Costello. TCA Television
Corp. v. McCollum, 151 F.Supp.3d at 429; see Nimmer
10.03[B][2], at 1056.2(6) (explaining that pre-1978
assignment of common law copyright could be effectuated
orally or implied from conduct). The conclusion is flawed
in two respects. First, as detailed in this section, the July
and November Agreements clearly express the parties'
intent for Abbott and Costello to license the use of, not
to assign copyrights in, their existing comedy routines for
use in UPC movies in which the team appeared. Second,
and requiring no further discussion in the face of clear
contract language, UPC's registration (and renewal) of
copyrights in its movies says nothing about what Abbott
and Costello intended to convey in the two agreements
because UPC would have taken such action to protect
its independent movie rights in any event. See generally
Faulkner v. Nat'l Geographic Soc'y, 220 F.Supp.2d 237,
239 (S.D.N.Y. 2002) (noting that under 1909 Copyright
Act, proprietor of collective work had right to renew
copyright in collective work itself).
*15 [21]
[22]
[23] Turning then to the agreements,
we note at the outset that neither contract has a choice
of law provision. Thus, the controlling law would be the
contract's center of gravity, which typically is the place
of contracting or performance. Lazard Freres & Co. v.
Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir. 1997)
(internal quotation marks omitted). The July Agreement
was executed in New York with expected performance
14
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
16
15
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
16
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
17
Case
1:15-cv-10160-SHS
Document
TCA Television
Corp.
v. McCollum, --- F.3d ---- (2016)
2016 WL 5899174
III. Conclusion
To summarize, we conclude as follows:
1. Dismissal was not supported by fair use because all four
relevant factors weigh in plaintiffs' favor:
a. Defendants' verbatim use of over a minute of Who's
on First? in their commercial production, Hand to God,
was not transformative because defendants neither used
so much of the Routine for a different purpose nor
imbued the original with a different message, meaning,
or expression;
All Citations
--- F.3d ----, 2016 WL 5899174
End of Document
18