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]

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SCHNADER HASON SEGAL & LEWIS LLP
140 Broadway, Suite 3100
New York, New York 10005-1101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintif Patrick Cariou

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---~------- ------------------------ --- ---------- ----------------- --- )(

PATRICK CAROU,
Plaintiff,

Case No. 08 CIV 11327 (DAB)

AMENDED COMPLAINT

- against -

RICHARD PRICE, GAGOSIAN GALLERY, INC.,
LAWRNCE GAGOSIAN, and RIZZOLI
INTERNATIONAL PUBLICA nONS, INC.,

DEMAND FOR JURY TRIAL

Defendants.
---- ------ - ------------------ - - - -- - ------ ------ - --- - ------------- --- )(

Plaintiff

Patrick Cariou, by his attorneys, Schnader Harison Segal & Lewis LLP, for his

Complaint against defendants Richard Prince, Gagosian Gallery, Inc. ("Gagosian Gallery"),
Lawrence Gagosian, and Rizzoli International Publications, Inc. ("Rizzo

Ii") (collectively

"Defendants"), alleges as follows:

JURISDICTION AND VENUE
1. This Court has jursdiction over the subject matter of this action pursuant to

28 U.S.C. §§ 1331 and 1338(a), because this action arses under the Copyrght Act of 1976, as

amended, 17 U.S.C. §§ 101, et seq. The copyrighted works at issue are registered with the U.S.
Copyrght Office.

2. Venue is proper in this

judicial district

pursuant to 28 U.S.C. § 139l(b) and

(c), and 28 U.S.C. § l400(a) because defendants Gagosian Gallery, Gagosian and Rizzoli either
reside or conduct business and may be found in this district and defendant Richard Prince resides

in the State in which this district is located, and because a substantial par of the events giving rise
to the claim occured, and a substantial par of

the property that is subject of

the action is situated,

in this district.

PARTIES
3. Plaintiff Patrick Cariou ("Plaintiff'), a French citizen and resident of Paris,

France, is a photographer who has published a number of

of

books of

photography, including a book

photographs entitled Yes Rasta, published in 2000 by Powerhouse Books, Inc. Plaintiffs work

has also appeared in numerous international magazines.

the State of

4. Defendant Richard Prince, a citizen of

New York, is a

contemporar artist who resides in Rensselaerville, New York.

5. Defendant Gagosian Gallery is a corporation organized and e)(isting under
the laws ofthe State of

of

New York and having its pricipal place of

business in the County and City

New York. Gagosian Gallery owns and operates a number of ar galleries in New York City

and various other cities, including one located at 555 West 24th Street, New York, New York (the

"Chelsea Gallery"). Gagosian Gallery is Prince's e)(clusive representative and agent.

2

6. Defendant Lawrence Gagosian is the controlling shareholder of Gagosian

Gallery and makes its operating decisions, including those involving the Chelsea Gallery.

7. Defendant Rizzoli is a corporation organzed and e)(isting under the laws of

the State of

New York and having its principal place of

business in the County and City of

New

York. Rizzoli is the e)(clusive distributor of a book entitled Canal Zone, published by Gagosian
Gallery in 2008, and containing photographs of various paintings by Prince which were on display

at the Chelsea Gallery from November 8, 2008 through December 20,2008 in an e)(hibition

entitled Canal Zone (the "Canal Zone E~bition").

NATURE OF THE ACTION
8. Defendants have infringed Plaintiff s e)(clusive rights under Section 106 of

the Copyright Act of 1976, as amended, by, without authorization, reproducing, adapting,

distributing and displaying copyrighted photographic works (the "Photographs") which Plaintiff
owns and published in the book entitled Yes Rasta. Plaintiff seeks damages and other remedies
under the Copyright Act.

9. Plaintiff

is the sole copyright owner and author of

the Photographs, which

are published as par ofthe photography book Yes Rasta and copyrighted under Copyright

Registration No. V A0001301506, issued on November 5, 2001. A copyright notice is displayed
the Copyright Act.

on Plaintiffs published book, Yes Rasta, in accordance with Section 401 of

the above Copyrght Registration, Defendant

10. Long following the issuance of

Prince appropriated the Photographs without authorization from Plaintiff and created a series of

3

paintings (the "Paintings") incorporating copies ofthe Photographs, thereby infringing Plaintiffs
e)(clusive rights in the Photographs under the Copyright Act.

11. Defendants Gagosian Gallery and Gagosian displayed the Paintings during

the Canal Zone E~ibition and sold some or all of the Paintings, thereby infringing and
contributing to Prince's infngement of

Plaintiffs e)(clusive rights in the Photographs under the

Copyright Act. Gagosian Gallery and Gagosian also infnged Plaintiff s rights under the
Copyright Act by displaying images of certain of

the Paintings, containing the Photographs, on

Gagosian Gallery's website and by publishing the book entitled Canal Zone, which contains

photographs of the Paintings and the Photographs included within the Paintings.
the

12. By distributing the book entitled Canal Zone, which contains copies of

Photographs, RIzzoli has infinged and contributed to Prince's infringement of

Plaintiffs e)(clusive

rights under the Copyright Act.

13. None ofthe Defendants was ever authorized by Plaintiff

to appropriate the

Photographs, or to reproduce, distribute or display the Photographs, or to adapt the Photographs in
order to create the Paintings or any other derivative work based on the Photographs. Defendants'

conduct was and continues to be in willful disregard of Plaintiff s rights under the Copyright Act.
14. Defendants' conduct has damaged Plaintiffs ability to sell additional copies

of Yes Rasta or to ear revenues from derivative works based on the Photographs which Plaintiff
could have licensed to others, while at the same time enabling Defendants to profit from their

unauthorized reproduction, adaptation, distribution and display of the Photographs.

4

FACTUAL BACKGROUND
15. Plaintiff

is an accomplished photographic artist whose published works

include the book entitled Yes Rasta.

16. Plaintiff spent parts of siJ( years in the secluded mountains of Jamaica,

gaining access to, living and working with, and earnng the trst of the Rastafarians who are the
subjects of Yes Rasta. The Rastafarans are a spiritual society living simply, independently, and in

harony with natue, apar from the industrialized world of environmental pollution and

materialism which they reject and refer to as "Babylon." Naturally, the Rastafarians do not easily
trst outsiders, such as Plaintiff, and it was only after living with them for years that Plaintiff was

finally permitted to photograph them. The result was the Photographs in Yes Rasta, approJ(imately

100 strkingly original black-and-white photographs, mostly close-up portraits of stern, mystica1looking men within a distinctive tropical

Henzell, who was the producer and director of

landscape. Yes Rasta also contains an essay by Perry

the noted Jamaican film, The Harder They Come.

17. The Photographs, registered with the United States Copyright Office on

November 5, 2001 under Registration No. V A0001301506, are highly original, for few, if any,
artists have been afforded the unettered opportunity to photograph the Rastafari people in such

breadth and detaiL. Yes Rasta was published in 2000 with a copyright notice as prescribed under
Section 401 of

the Copyright Act.

18. Prince is well known as an "appropriation arist," due to his penchant for

appropriating and using as his own images created by others without attribution or permission. As
Price once said of

his own work in an interview, he is "practicing without a license." Prince has

publicly admitted appropriating photographs created by others and publishing them as his own

5

work. Although he primarily has been known for copying anonymous commercial imagery, such

as advertisements, in the Paintings contained in his Canal Zone E~bition, Prince has appropriated
Plaintiffs copyrighted ar work. As stated in Gagosian Gallery's website ~ which, by displaying

images of certain of the Paintings, containing the Photographs, itself infringes Plaintiff s exclusive

rights under the Copyright Act - Prince copied the Photographs in various ways, including by
scanng them and printing them directly onto the base canvas of

the Paintings. In a recent

interview with Interview Magazine, Prince described his work in the Canal Zone E)(hibition as

having been taken from "a book" that he "picked up" about Rastas, who represented a culture "that
I didn't really know much about. But I loved the book, and I loved the dreads, so I just started
fooling around with this book. . ." According to Prince, "(t)he pictues are very quickly done-

they're not really thought about. . ." Prince added: "The Rastas came really fast. And they're
going to be over really fast, too." In addition to copying Plaintiffs images of

Rastafarians, Prince

also copied the landscapes depicted in the Photographs.

19. Not only did Prince appropriate the images in the Photographs and

incorporate them into the Paintings without Plaintiff s permission and despite the prominent
copyright notice contained in Yes Rasta, but, in the infringing book published by Gagosian Gallery
and distrbuted by Rizzoli entitled Canal Zone, Price actually purports to be the copyright owner

of all "arorks" and "insert images," presumably including the Paintings (which contain

Plaintiffs Photographs). Furhermore, Gagosian Gallery claims to be the copyright owner ofthe

Canal Zone "publication."

20. The Canal Zone E)(bition contained at least twenty-two Paintings, at least
twenty of

which reproduce and are derived from the Photographs, incorporating unauthorized uses

6

of Plaintiffs registered copyrighted work. Among the infinging Paintings which were displayed
in the Chelsea Gallery from November 8, 2008 through December 20, 2008 were two untitled
works, as well as works entitled: Graduation, Back to the Garden, Charlie Company, Meditation,
Canal Zone, The Ocean Club, Cookie Crumbles, lIe de France, Ding Dong the Witch Is Dead,

Djuna Barnes, etc., Zipping the System, Tales of Brave Ulysses, It's All Over, Specially Round

the Island, Cheese and Crackers, and Mr. Jones.

Midnight, Naked Confessions, The Other Side of

these Paintings and has been wrongfully

Plaintiffs copyrighted work is contained in each of

copied and appropriated by Prince and displayed and distributed by the other Defendants. All of
the Paintings were created by Prince, displayed by Gagosian Gallery and Gagosian, and distributed

by Rizzoli years after Plaintiff registered his copyright covering the Photographs.

21. Some, if

not all, of

the Paintings were sold by Prince or Gagosian Gallery

before, during or after the Canal Zone E)(hibition, and Gagosian Gallery, Gagosian and Prince all

benefitted from the sales.

22. In an effort to promote the Canal Zone Exhibition, Gagosian Gallery caused

to be printed in newspaper and magazine advertisements copies of the Paintings, containing
infringing reproductions of images from the Photographs, including advertisements in The Art
Newspaper and

Art Forum Magazine. Gagosian Gallery's invitation to the opening of

the Canal

Zone E)(hibition depicted an image of Graduation, the Prince Painting found on the first page of
the Canal Zone e~bition book, which itself contains an infinging reproduction of images from
the Photographs. Ths use of one of

centrality of

Plaintiffs Photographs in the invitation demonstrates the
the Canal Zone Exhibition.

the Photographs appropriated by Prince to the essence of

Despite the centrality of the Photographs to the Canal Zone E)(hibition, at no time in their press

7

releases, interviews or other public statements did Prince, Gagosian Gallery or Gagosian ever

mention Plaintiffs name or comment on the fact that the Paintings were taken directly from

Plaintiff s copyrighted work.

23. Neither Prince, nor Gagosian Gallery, nor Gagosian, nor Rizzoli ever asked

for or received permission to use the Photographs.

24. After the Canal Zone E)(hibition opened, Plaintiff discovered that the

Defendants had infringed his rights under the Copyright Act. Through his counsel, on December
11, 2008, Plaintiff served Defendants with a cease and desist demand, outlining the relevant facts

set forth in this Complaint and requiring Defendants to:

1. Cease and desist from continuing to e~bit or distribute Prince's arwork
containing unauthorized reproductions of Plaintiff s copyrighted work;
11. Remove all unauthorized reproductions of

Plaintiffs copyrighted work

from Prince's arwork;
the Canal Zone e)(hibition book
containing Prince's artwork that is being distributed by Rizzoli; and

iil. Deliver or destroy all remaining copies of

iv. Identify

all of

Prince's arork containing unauthorized reproductions of

Plaintiffs copyrighted work and the current location of each of such work.
25. Defendants did not comply with Plaintiffs cease and desist demand and the

December 20,2008 without

Canal Zone E~bition ran through its scheduled completion date of

any corrective action being taken.

8

FIRST CLAIM FOR RELIEF

(COPYRGHT INFRINGEMENT AGAINST RICHA PRINCE)
(17 U.S.C. §§ 106,501)
26. Plaintiff

hereby incorporates paragraphs 1 though 25 of

this Complaint as if

fully set forth herein.
27. Defendant Prince, with full knowledge of the copyright protection of the

Photographs, without authorization, and despite receiving a cease and desist demand, infinged
the Photographs by reproducing, displaying,

Plaintiffs e)(clusive rights as the copyright owner of

and causing the Photographs to be distributed and by adapting the Photographs into unauthorized
derivative works. All of

the infringing conduct occured in the State of

New York.

28. Defendant Prince's infrngement was wilful because, as an accomplished,

educated and informed arist, Prince had knowledge that his conduct constituted infringement or, at

least, recklessly disregarded the possibility. Prince's wilful infringement is also manifested by his
disregard of the copyright notice on the copy of Yes Rasta that he admitted perusing and copying

from. Finally, Prince's receipt of and non-compliance with Plaintiffs cease and desist demand also
establishes the willful nature of

his infringing conduct.

29. Prince's acts have damaged and are continuing to damage Plaintiff

amount and to an e)(tent as yet unown.

9

in an

SECOND CLAIM FOR RELIEF

(COPYRGHT INFRIGEMENT AGAINST GAGOSIAN GALLERY)
(17 U.S.c. §§ 106,501)
30. Plaintiff

hereby incorporates paragraphs 1 through 29 ofthis Complaint as if

fully set forth herein.
31. Defendant Gagosian Gallery, without authorization, infringed Plaintiffs

the Photographs by publicly displaying, offering for

e)(clusive rights as the copyright owner of

sale, and selling the Paintings; by advertising the Canal Zone Emibition with infringing depictions

of the Paintings, containng images of the Photographs, on its website and in newspaper and
magazine advertisements as well as in the invitation to the opening of the Canal Zone E)(hibition;

and by publishing and causing to be distributed the Canal Zone Emibition book, Canal Zone,
which contains photographs of

All of

the Paintings, and the Photographs included within the Paintings.

New York. With those same

this infinging conduct occured in the County and State of

acts, Gagosian Gallery also contributorily and vicariously infringed Plaintiffs e)(clusive rights as
the copyright owner of

the Photographs.

32. Defendant Gagosian Gallery's infngement was wilful because, as a

prominent and sophisticated ar gallery which e)(clusively represented Prince and knew of

his

background as an "appropriation arist" who openly boasted about copying works created by
others, it knew or should have known that its conduct constituted copyright infringement or, at

least, recklessly disregarded the possibility. Defendant Gagosian Gallery's wilful infingement is
also manifested by its disregard ofthe copyright notice on the copy of Yes Rasta that Defendant
Plaintiffs cease and desist

Prince admitted perusing and copying from, and by its disregard of

demand.

10

33. Defendant Gagosian Gallery's acts have damaged and are continuing to

damage Plaintiff in an amount and to an e)(tent as yet unown.

THIRD CLAIM FOR RELIEF
(COPYRIGHT INFRINGEMENT AGAINST GAGOSIAN)
(17 U.S.C. §§ 106,501)
hereby incorporates paragraphs 1 through 33 of

34. Plaintiff

this Complaint as if

fully set forth herein.
35. Defendant Gagosian, without authorization, infinged Plaintifts e)(clusive

rights as the copyright owner of the Photographs by publicly displaying, offering for sale, and

selling the Paintings; by advertising the Canal Zone E)(hibition with infnging depictions of the
Paintings, containing images of the Photographs, on the Gagosian Gallery website and in
newspaper and magazine advertisements as well as in the invitation to the opening of the Canal

Zone Emibition; and by publishing and causing to be distributed the Canal Zone Emibition book,
the Paintings, and the Photographs included within the

Canal Zone, which contains photographs of

Paintings. All of this infringing conduct occured in the County and State of

New York. With

those same acts, Gagosian also contributorily and vicariously infringed Plaintiff s e)(clusive rights

as the copyright owner of the Photographs.

36. Defendant Gagosian's infngement was wilful because, as a prominent and

sophisticated proprietor of

represented Prince and knew of

numerous ar galleries, including the Chelsea Gallery, who e)(c1usively

his background as an "appropriation arist" who openly boasted

about copying works created by others, he knew or should have known that his conduct constituted

copyright infingement or, at least, recklessly disregarded the possibility. Defendant Gagosian's

11

the copyright notice on the copy of Yes

wilful infringement is also manifested by his disregard of

Rasta that Defendant Prince admitted perusing and copying from, and by his disregard of

Plaintiffs cease and desist demand.

37. Defendant Gagosian' s acts have damaged and are continuing to damage

Plaintiff in an amount and to an e)(tent as yet unkown.

FOURTH CLAIM FOR RELIEF

(COPYRIGHT INFRINGEMENT AGAINST RIZZüLI)
(17 U.S.c. §§ 106,501)
hereby incorporates paragraphs 1 through 37 of

38. Plaintiff

this Complaint as if

fully set forth herein.
39. Defendant Rizzoli, without authorization, infringed Plaintiffs e)(clusive

the Photographs by distributing the Canal Zone Exhibition book,

rights as the copyright owner of

Canal Zone, which contains photographs of

Paintings. All or most of

the Paintings, and the Photographs included within the

this infringing conduct occured in the County and State of

New York.

With those same acts, Rizzoli also contributorily and vicariously infringed Plaintiffs e)(clusive
rights as copyright owner of the Photographs.

40. Defendant Rizzoli's infrngement was wilful because, as an e)(perienced

book publisher and distributor, it knew or should have known that its conduct constituted copyright

infringement or, at least, recklessly disregarded the possibility. Defendant Rizzoli's willful
infringement is also manifested by its disregard of the copyright notice on the copy of Yes Rasta
that Defendant Prince admitted perusing and copying from, and by its disregard of

and desist demand.

12

Plaintiffs cease

41. Defendant Rizzoli's acts have damaged and are continuing to damage

Plaintiff in an amount and to an e)(tent as yet unown.

FIFTH CLAIM FOR RELIEF
(CONSPIRACY BY PRINCE, GAGOSIAN GALLERY, GAGOSIAN, AND RIZZOLI TO
VIOLATE PLAINTIFF'S RIGHTS UNDER
THE COPYRGHT ACT)
42. Plaintiff

hereby incorporates paragraphs 1 through 41 of

this Complaint as if

fully set forth herein.

43. Defendants agreed to reproduce, adapt, display, publish, advertise, promote,
sell, offer for sale, market, distribute or otherwise dispose of the Photographs and the Paintings

derived from the Photographs without Plaintiffs authorization and contrar to his cease and desist
demand. Defendants' wilful infringement is manifested by their agreement to disregard the
copyright notice on the copy of Yes Rasta that Defendant Prince admitted perusing and copying
from.

44. Defendants' conspiracy was intended to and did deprive Plaintiff of

his

exclusive rights as the copyright owner of the Photographs.

45. Defendants' acts have damaged and are continuing to damage Plaintiff

in an

amount and to an e)(tent as yet unown.
WHEREFORE, Plaintiff Patrick Carou requests judgment in his favor and against
Defendants as follows:

A. That, pursuant to 17 U.S.C. § 502, Defendants, their directors, officers,
agents, servants, employees, and attorneys, and all persons in active concert or paricipation with

13

them, be enjoined and restrained permanently from infringing the copyright in the Photographs,
or any other of

Plaintiffs works, in any maner, and from reproducing, adapting, displaying,

publishing, advertising, promoting, selling, offering for sale, marketing, distributing or otherwise

disposing of the Photographs or any copies of the Photographs, or any other of Plaintiff s works,

and from paricipating or assisting in or authorizing such conduct in any way.
such damages as Plaintiff

B. That Defendants be required to pay Plaintiff

sustained in consequence of

has

the copyrights in the Photographs and

Defendants' infringements of

to account for and pay Plaintiff all of the Defendants' profits attibutable to such infngements
or, alternatively, as Plaintiff

Court may find

be awarded such statutory damages as the

may elect, that Plaintiff

just because of

infringement.

Defendants' wilful acts of

C. That Defendants be required to deliver up on oath for impounding,

destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs,
including the Paintings and unsold copies of

the Canal Zone E)(hibition book, in their

possession, custody, or control and all transparencies, plates, masters, tapes, film negatives,

discs, and other articles for making such infnging copies.

D. That Defendants be required to notify in wrting any current or future
owners of the Paintings of whom they are or become aware that the Paintings infringe the

copyright in the Photographs, that the Paintings were not lawflly made under the Copyright Act

of 1976, and that the Paintings canot lawfly be displayed under 17 U.S.C. § 109(c).
the full costs of

E. That Defendants pay to Plaintiff

this action, including

reasonable attorney's fees under 17 U.S.C. § 505.
F. That Plaintiff

have such other relief as is just and proper.

14

DEMAND FOR TRIAL BY JURY
Pursuant to Rule 3 8(b) of the Federal Rules of Civil Procedure, Plaintiff demands a

trial by jury in this action.

Dated: New York, New York
Januar 14,2009

SCHNADER HARSON SEGAL & LEWIS LLP

By:

~~

Danel J. Brooks (DB-3136)

dbrooks(fschnader.com
Eric A. Boden (EB-7669)
eboden(ischnader. com

140 Broadway, Suite 3100
New York, New York 10005-1101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintif Patrick Cariou

15

AFFIDAVIT OF SERVICE

STATE

OF

NEW

YORK )
) ss:.

COUNTY OF NEW YORK )
TIMOTHY CLANCY, being duly sworn, deposes and says that he is not a par to this action, is
over the age of 18 years and resides in Monmouth County, New Jersey. That on the 14th day of January

2009, he served the within AMENDED COMPLAINT upon:
Richard Prince
151 Righter Road
Rensselaervile, NY 12147
Gagosian Gallery, Inc.
980 Madison Avenue
New Yark, NY 10021
Lawrence Gagosian

c/o Gagosian Gallery, Inc.
980 Madison Avenue
New York, NY 10021
Lawrence Gagosian

"Toad Hall"
Further Lane
East Hampton, NY 11937
Rizzoli International Publications, Inc.
300 Park Avenue South
New York, NY 10010

by depositing a true copy of same securely enclosed in a post-paid wrapper in an offcial depository under
the exclusive care and custody of

the United States Post Offce Deparment within the State of

New York.

Sworn to before me this
14th day of January 2009

~4.~
Notary Pub c

PATRICIA J. KEHLENBECK
Notary Public, State of New York

No. 01 KE6037739
Qualified in Nassau County
Commission Expires February 28, 20 .J

PHDATA 3162072_1