PEARSE-HOCKER v. USA

Filing 34

STIPULATION FOR ENTRY OF JUDGMENT, filed by ANNE PEARSE-HOCKER, USA. (Attachments: # 1 Appendix A, # 2 Appendix B)(Brown, Walter)

APPENDIX A

SETTLEMENT AGREEMENT
PR_~MISES
1. Anne Pearse-Hocker is the plaintiff in an action under 28 U.S.C. § !498(b) and 28
U.S.C. § 1491(a), filed April 30, 2010, in the United States Cout~ of Federal Claims and styled
Anne Pearse-,~ocker v. ~ited States, Ct. Fed. C1. No. 10-0269 C ("the Action"). In the Action,
plaintiff seeks recovery of reasonable and entire compensation for alleged infiSngement of her
copyright in a collection of photographs donated to the Smithsonian Institution in 1997 ("PearseHocker Collection") and damages for an alleged breach of contract relating to the terms of the
agreement (’q3eed of Gift") by which these photographs were donated.
2. The parties to the Action desire to e].iminate all ut~certainties, claims, or controversies
relative to the alleged liability of defendant, the United States. By way of samamary, in return for
a certain payment an6 other consideration by the United States, plaintiff agrees to settle this
action by agreeing to a stipulat~on for an entry of judgment, which fully releases defendant from
all of plaintiff’s claims relating to the reproduction, p~.ablication, distribution, adaptation, display
and/or use by or for the defendant of the Pearse-Hocker Collection, and Kn-ther, fully reteases
defendant from all claSms which wet’e, or could have been asserted in the Action or any other
proceeding with respect to the Pearse-Hocl~er Collection.
3. TbAs Settlement Agreement has been executed concurrently with a Stipulation for the
Entry of Judgment in the Action. A copy oft~s Stipulation is attached as Appendix A.
IN CONSIDERATION OF A TOTAL LUMP SUM OF $40,000 to be paid by the
defendant to plak~tiff pursuant to a final judgment entered by the United States Court of Federal
Claims ha the Action, and other consideration set forth in ArticIe IV, the parties agree to the
following:

ARTICLE I-DEFINITIONS
A. Tb_e term "plaintiff" refers to Anne Pearse-Hocker.
B. The term "defendant" means the legislative, judicial, and executive branches of the
United States of America, and all departments, .admJNstrations, agencies, authorities, boards,
bureaus, corporations, independent commissions, offices, services, other instrumentalities arid
other independent establishments, wholiy or partly controlIed or owned by the United States,
including, without limitation, the Smithsonian Institution.
C. The terms "Smithsonian" and" ’
SrmthsoniaI1 Institution" both refer to the Smithsonian
Institution in its entirety, whietz includes 19 museums and galleries, the National Zoological Park
and nine research facilities.
D. The term ’"NMAI" means the National Museum of the American Indian, whiela is a
Smithsonian museum.
E. Tile term "Pearse-Hocker Collection" means the collection of photographs that was
donated by plaintiff to the Smithsonian Institution in 1997, whietl includes: (a) 2,212 35ram
(black and white) negatives bearing catalog numbers N44530-N46727 and N56571-N56578; (b)
(15) contact sheets (8x10) of 35 mart negatives [no catalog nlmabers]; and (c) 58 prints made
~om the 35 mm negatives [no catalog numbers].
F, The "Deed of Gift" refers to the document executed in December 1997, by which
plaintiff doaated’the Pearse-Hocker Collection to the Smittmonian Institution.
G, The term °Nae Action" means the lawsuit under 28 U.S.C. § .1498(b) and 28 U.SoC.
§ 1491(@ flied by plaintiff on April 30, 2010, in the United States Court of Federal Claims and
styled Anne_F’earse-Hoeker v. United States, Ct. Fed. C1. No. 10-0269 C.

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ARTICLE II-WARRANTIES
A. Plaintiff represents and warrants that she is and has been the exclusive owner of all
fight, title, and interest, in any copyrightable work incorporated in the Pearse-Hoeker Collection,

which was registered with the U.S. Copyright Office under Registration Certificate No. Ju
13546.
B. Plaintiff represents and warrants that she has the sole fight to grant the releases and

covenants set forth in ARTICLE III.
C. Plaintiff further warrants that ~e cop3a-ight ticense granted to defendant under the
terms of the Deed of Gift and all other terms of the Deed of Gif~ remain in full force and effect,
and are not altered by this Agreement.

ARTICLE HI-RELEASES, GRANTS, AND COVENANTS
A. Plaintiff fully releases defendant, the United States, from any and all claims relating
to the reproduction, publication, distribution, adaptation, display, and/or use by or for the
defendant of the Pearse-Hocker Collection up to and incl~ading the date of execution of this
Agreement, and farther, fully reteases defendant from all claims that were, or could have been
asserted against defendant in the Action or any other proceeding, up to and including the date of
execution of this Agreement, with respect to the Pearse-Hocker Collection,
B. Plaintiff covenants not to sue, seek ftn~er compensation fizom, or seek injunctive
relief against defendant for infringement or use of any subject matter for which a release has
been granted a,mder paragraph A above of this ARTICLE III.

ARTICLE W-ADDITIONAL CONSIDERATION TO PLAINTIFF
Iaa addition ~o monetary consideration of $40,000 from defendant to plaintiff, the
Smithsonian will provide the following additional consideration to plaintiff:
A. The Smithsonian will provide plaintiff a letter, signed by the Director of the NMAI,
as shown in Appendix B.
B. Within thirty days of the execution of this Agreement, defendant will provide plaintiff
with a DVD containing contact sheets that include images of the 3 5 mm negatives in the P earseHocker Collection and catalog numbers. With this information, plaintiff will cho6se 100 images
for which the Smithsonima will provide a DVD containing high resolution digital images in
grayscale, tiff format, no smaller than 3000K x 3000K pixels (fit to) per image, and low
resolution jpeg images at 700K x 700K pixels (fit to) of each selected image. The plaintiff will
provide her !00 choices of images at one time to the Smithsonian, no later than one calendar year
after the execution of the Agreement. The Smithsonian, in turn, will provide the requested
images within six months of the date of receipt of plaintiff’s choices of 100 images. The DVD
shall be delivered to plaintiffs attorneys at the address listed in Article V(E), below.
C, If iflainfiffrequests addifiona! high-resolution images from her collection, she will do
so through the procedures available to the public and at her own expense. Should she have
questions about these procedures, plaintiff may contact Jane Siedge, the NMAI’s Associate
Director for Museum Assets & Operations, or her successor in that position. If such contact does
not prove satisfactory to plaintiff, the attorneys for plaintiff may contact Lam3rn Guttenplan,
Associate General Cotmsel for the Smithsonian, or her successor in that position, by electronic
mail or letter, with a copy of such commtmication simultaneously provided to counsel for the
defendant at the address listed in Article V(E) below.
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ARTICLE V-CONDITIONS

A. Each party agrees to bear its own costs and attorney’s fees.
B. This Settlement Agreement shall become effective upon the entry in the United States
Court of Federal Claims of a final judgment in the Action in favor of plaintiff attd against
defendant in the total lump sum of Forty Thousand Dollars ($40,000) in accordance with the
accompanying Stipulation for the Entry of Judgment. In the event that the Court declines, in
whole or in part, to enter judgment in accordance with this Stipulation, this Settlement
Agreement and the Stipulation attached hereto as Appendix A shall be null, void, and without
prejudice to any party.
C. This Settlement Agreement shall bind each successor in interest, assignee, heir, and
licensee of plaintiff as to any interest or right in any copyright or right of use in the PearseHocker Collection that hereafter maybe conveyed, granted, or transferred.
D. This Settlenaent Agreement is not intended as, and shall not be deemed, an admission.
by defendant of the merit or lack of merit of plair~ti~s allegations or claims in the Action.
Without limiting the generality of the foregoing, this Settlement Agreement does not constitute,
and shall not be construed as, an admission that defendant (!) violated any ofplainti~s rights or
any laws or regulations, (2) breached any contract with plaintiff, or (3) as an admission of any
contested fact alleged by plaintiff in connection with the Action.
E. Communications regarding t~s SeRlement Agreement shall be addressed to:
For plaintiff:

Christopher "Kip" Schwartz
Erie N. Heyer
THOMPSON HINE LLP
1920 N Street, N.W., Suite 800
Washh~gton, D.C. 20036

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For defendant:

Director, Intellectual Property Section
Commercial Litigation Branct~
Civil Division
Deparktnetlt of Justice
Washiiagton, D.C, 20530

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The foregoing Seffiement A~eement is hereby executed on behalf of tile parties b?
plaitrdff and by the anthorized representatives of the Attorney General and the Smithsenian
Institution.
FOR PLAINTIFF.

Dated: ~_~0_~

.20!1
Anne Pearse-Hocker
FOR DEFENDANT, THE UNITED STATES

TONY WES’F
Assistant Attorney General
Dated: ~/ CO~’

,2011
JO~0 /~

(Authorized Representative of the Attorney Generat)
Director, Intdlectual Property Section
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
WastainNon, D.C. 20530
Telephone: [phone]

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APPENDIX A

IN THE UNITED STATES COURT OF FEDE~ CLAIMS

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No. 10-269 C
Judge Edward J. Damich

STIPULATION FOR ENTRY OF JUDGMENT
For purposes of settling mad compromising the above action, plaintiff and defendant
stipulate to the followh~g:
!.

Plaintiff warrants that she is and has been the exclusive owners of all right, title,

and interest, in any copyrightable work incorporated in a collection of photographs that plaintiff
donated to the Smithsonian Institution in 1997 (the Pearse-Hocker Collection). This eo!lecfion
was registered with the U.S. Copyright Office under Registration Certificate No. Ju-13546.
Plaintiff brought this action to recover reasonable and entire compertsafion for alleged
infringement of her copyright in the Pearse-Hoeker Collection as well as damages for an alleged
breach of’contract relating to the Deed of Gift, the document by which plaintiff donated the
Pearse-Hoeker Colleotion to the Smithso~an Institution.
2.

Plaintiff has submitted a written offer to defendm~t to settle this action by:

(a) fully releasing the United States fi:om any and all eiaims relating to the reproduction,
publication, dism’bution, adaptation, display and!or use by or for the defendant of the PearseHocker Collection up to and including the date of entry of judgment, and further, fully releasing

the United States from all claims which were, or coNd have been, asserted against the United
States in Court of Federal Claims Action No. 10-269 or any other proceeding, up to and
including the date of entry of judgment with respect to the Pearse-Hocker Collection.
(b) Executing a separate Settlement Agreement (attached as Appendix A) setting
forth the detailed terms of releases, agreements, and covenants that wilt become effective only
upon entry of the stipulated judgment provided herein.
3.

Defendant has duly agreed to accept this offer.

4.

In consideration for this Stipulation for Entry of Judgment and the Settlement

Agreement, plaintiff and defendant have agreed to allow final judgment in this action to be
entered in favor of plaintiff and against defendant for the total lump sum of Forty Thousand
DolIars ($40,000). A Proposed Order is attached as Appendix B.
5.

In accordance with the terms of the offer and acceptance and to secure the

performance thereof, defendant, by its authorized representative of the Attorney General, and
plaintiff hereby enter into this Stipnlation to be Ned in the above-identified action for the
purpose of cal~sing a finn judgment to be entered against defendant in accordance with the terms
set forth in paragraphs 2 and 4 above.
6.

The parties agr.ee to bear their own costs and attorney’s fees.

7.

In the event that the c6urt declines, in whole or part, to enter judgment in

accordance with this stipulation, it shall be null, void, and without prej-adice to anypar~.

2

RespectfuIly submitted,
THOMPSON HINE LLP

Da~ed: 3un~__~ 2011
Eric N, Heyer
1920 N Street, N.W., Suite 800
Washiugtorg D.C. 20036
Telephone: [phone]
Fax: [phone]
eric.heyer@thoml~sonhine.com
Counsel for Plaintiff Anne Pearse-Hocker
TONY WEST
Assistant Attorney Genera1
Dated: June __.~ 2011
JOHN FARGO
Director
(Authorized Representative
of the Attorney General)
Dated: June ___, 2011
WALTER W. BROWN
Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
Washington, D. C. 20530
Telephone: [phone]
Facsimile: [phone]
Attorneys for the United States

IN TI~ UNITED STATES COURT OF FEDERAL CLAIMS

ANNE PEARSE-HOCKER,

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Plaintiff,
V.

THE UNITED STATES,
Defendant.

No. 10-269 C
Judge Edward J. Damich

.[PROPOSED] ,ORDER

In accordance with a Stipulation for Entry of Judgment submitted by the parties in the
above action, the Co~irt directs the Clerk to enter final judgment in favor of plaintiff in the total
lump sum of Forty Thousand Dollars ($40,000).

Each party shall bear its own costs and attorney’s fees.

Dated:

,2011
Judge Edward J, Damich
U.S. Court of Federal Claims

APPENDI~X

[National Museum of the American Indian Letterhead]

I am writing regarding your co!lection of photographs taken during the siege of
Wounded IZ~uee, South Dakota, in 1973, as weli as other events from that tumultuous era,
which were donated to the Smithsonian’s National Museum of the American Indian ("NMAI")
in 1997, following a solicitation of the collection by a former member of the NMAI’s Board of
Trustees, and discussions with museum staff. These photographs were donated pursuant to the
termsof a deed of gift between you and the NMAI that generally provided that the NMAI
could use and repiroduce the images for the museum’s educational purposes, lout you would
continue to hold the copyright in the donated photographs.

In 2008, NMAI was contacted by ma outside production company. Firelight Media, Inc.
("Firelight"), and asked to provide severn images from your collection for a documentary.then
being produced by Firelight and ultimately broadcast ort the PBS series "American Experience."
Regrettably, the NMAI did not contact you prior to the museum providing copies of the
photographs to Firelight.
Eventually, three photographs from your eollectio~ were included ha the doeumemary
"We Shall Remaha: Wounded Knee," wlaioh began airing on PBS irt May 2009. During the
course of the production process, your name was omitted from the dooumentary’s credits,
when you should have been credited,

The museum greatly appreciates the efforts and extreme risk to your personal safety
that you endured to capture these photographs. Likewise, it greatly values your collection of
pt~otographs and artifacts related to Wounded Knee and the American Indian Movement and
is grateful for your generosity in donating the collection to the museum.
Sincerely,

Kevin Gover, Director
National Museum of the American Indian