Cariou v. Prince

Filing 68

OPPOSITION TO MOTION to dismiss [51], on behalf of Appellant Lawrence Gagosian and Gagosian Gallery, Inc., FILED. Service date 06/01/2011 by CM/ECF. [304722][68] [11-1197]

BOIES, SCHILLER & FLEXNER LLP

WITHERS BERGMAN LLP
Hollis Gonerka Bart
Chaya F. Weinberg-Brodt
Dara G. Hammerman
Azmina N. Jasani

Jonathan Schiler

George Carpinello
Joshua 1. Schiler
575 Lexington Ave, 7th Floor

430 Park Avenue, 10th Floor

New York, NY 10022

New York, New York 10022

212-446-2300 (p)

212.848.9800 (p)

212-446-2350 (f)

212.848.9888 (f)

Attorneys for Defendant-Appellant Richard Prince

Attorneys for Defendants-Appellants Gagosian Gallery, Inc.

and Lawrence Gagosian

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
----------------------------------------------------------X Docket No. 11-1197 -cv
PATRICK CARIOU,
SDNY: 08-cv-11237 (DAB)
Plaintiff-Appellee,
-against-

RICHARD PRICE, GAGOSIAN GALLERY,
INC., and LAWRNCE GAGOSIAN,

DECLARATION OF
HOLLIS GONERK BART
IN OPPOSITION TO
PLAINTIFF -APPELEE'S
MOTION TO DISMISS
THE APPEAL

Defendants- Appellants.

----------------------------------------------------------X
perjur, states as follows:

HOLLIS GONERK BART, under the penalty of

the Bar of

1. I am a member of

this Court and of

the law firm of

Withers

Bergman LLP, counsel for defendants-appellants Gagosian Gallery, Inc. and

Lawrence Gagosian ("Gagosian"). I submit this declaration based upon my
personal knowledge of

the procedural history in this case, in opposition to the

motion of Plaintiff-Appellee Patrick Cariou ("Cariou") to dismiss the appeal
without prejudice.
2. The action arises under the United States Copyright laws.

document number: NY23802/0005-US-1135110/4

3. In his Amended Complaint ("Complaint"), Cariou alleged that

Defendants-Appellants Gagosian and Prince (collectively, "Appellants") infringed

his copyright by, among other things, creating, marketing, and selling a series of

paintings and catalogs (the "Paintings" and the "Catalogs," and collectively the
"Items"). A copy of Cariou's Complaint is attached hereto as Exhibit A.
4. In their answers, Appellants each asserted, among other things, the

defense of

fair use under 17 U.S.C. § 107.

5. On May 14,2010, the parties cross-moved for summary judgment on
liability, including the claim of infringement and the defense of fair use. Neither
party moved for summary judgment on damages or remedies.
6. On March 18,2011, in a Memorandum and Order (the "Order"), the

Honorable Deborah A. Batts, of the United States District Court for the Southern
District of

New York, granted Cariou's motion for summary judgment on the issues

of copyright infringement and rejected Appellants' defense of fair use. i
7. The Order also granted injunctive relief against Appellants, although

the issue of remedies and damages was not sub judice.
8. Specifically, the district court: (i) permanently enjoined Appellants

from infringing Cariou's copyright in the Photographs, thus prohibiting them from

selling, displaying, marketing, promoting, or distributing the existing Paintings and

i A copy of the Order is found at Exhibit A to the May 19, 2011 Declaration of
Daniel J. Brooks ("Brooks Dec.").
document number: NY23802/0005-US-113511 0/4

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Catalogs, which the district court found to be infringing; (ii) ordered Appellants to
deliver to Cariou, within ten days, all unsold Items in their possession, custody, or

control, for "impounding, destruction, or other disposition, as Plaintiff
the

determines;" and (iii) ordered Appellants to notify an known owners of

Paintings that the Paintings infringe Cariou's copyright, and - in the district court's

view - cannot be publicly displayed. See Order at pp. 37-38.
9. Each of

these three injunctive orders (the "Injunctions") mirrors a

request for injunctive relief that Cariou sought in his Complaint. Compare
Complaint, at Exhibit

A

hereto, pp.13-14, ~~ A, C, and D with Order at pp.37-38
joint notice of

10. On March 25,2011, Appellants filed a

of

appeal, a copy

which is annexed hereto as Exhibit B. See 28 U.S.C. § 1292(a)(1).
11. On March 24, 2011, Appellants entered into a stipulation with Cariou

(the "Stipulation") to comply with the district court's order for impounding,

destruction, or other disposition. See Brooks Dec. Ex. B, at Whereas Clause, and
at ~ 1. In the Stipulation, the parties agreed that Appellants would turn over the
Items to Cariou for an "other disposition," which Cariou had the right to select,
namely the Items would be stored and preserved in a neutral, third-party location.
this

¡d. ~ 1. The Stipulation, by its express terms, expires on determination of

appeaL. I d.

document number: NY23802/0005-US-1135110/4

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12. By entering into the Stipulation, Appellants were assured that the
Items would be preserved intact without the need for motion practice, until this
appeal could be heard, rather than irreversibly destroyed before Appellants could
be heard on the issue.
13. In accordance with the Injunctions, on or about March 28, 2011 (i.e.,

within ten days of

owners of

the district court's Order), Appellants wrote letters to the known
the Order, and of

the Paintings, informing them of

the district court's

view that the Paintings infringe Cariou's copyright and cannot be publically
displayed. The letters further told the owners that Appellants had filed this appeaL.
See Brooks Dec. Ex. C.

I declare under penalty of perjur that the foregoing is true and correct.
Executed on June 1,2011.

~ ~ RK BART
~âAlHOLLIS GO

document number: NY23802/0005-US-1135110/4

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