Eastman et al v. NBCUniversal Media, LLC et al
Filing
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OPINION, MEMORANDUM, AND ORDER re: IT IS HEREBY ORDERED that Plaintiffs' Motion for Preliminary Injunction [Doc. # 9 ], is DENIED. Signed by Honorable Henry E. Autrey on 9/22/11. (TRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL EASTMAN and MICHAEL
EASTMAN IMAGES, INC.,
)
)
)
Plaintiffs,
)
)
vs.
)
)
NBCUNIVERSAL MEDIA, LLC; BRAVO )
MEDIA LLC, GOODBYE PICTURES,
)
INC., WARNER BROS.
)
ENTERTAINMENT INC., and MARTYN )
LAWRENCE BULLARD,
)
)
Defendants.
)
Case No. 4:11-CV-1296 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Preliminary
Injunction, [Doc. No. 2]. Defendants oppose the motion. For the reasons set forth
below, the Motion is denied.
Plaintiffs’ Allegations
Plaintiffs brought this suit alleging that Plaintiff Michael Eastman owns the
copyright in the photograph, “Isabella’s Two Chairs 1999" (the “Work”), and
Defendants violated Plaintiff’s exclusive rights by reproducing the work;
preparing a derivative work based on the Work; distributing a copy of the
derivative work by sale or transfer of ownership; and displaying the derivative
work publicly. Plaintiffs seek an Order from this Court granting a preliminary
injunction enjoining “Defendants, their agents, servants, employees, partners,
licensees, divisions, affiliates, parent corporation(s), and all others in active
concert or participation with any of them from copying, distributing, publicly
displaying, or otherwise infringing Plaintiff’s copyright in his Work (...), or
making any use of the Infringing Copy (...), both in the Fuentes Segment of
Episode 5 of the television show Million Dollar Decorators.” Doc. #9.
Discussion
In determining whether a preliminary injunction is warranted, the Court is
guided by Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th
Cir.1981). “The primary function of a preliminary injunction is to preserve the
status quo until, upon final hearing, a court may grant full, effective relief.”
Kansas City Southern Trans. Co., Inc. v. Teamsters Local Union # 41, 126 F.3d
1059, 1065 (8th Cir.1997) (internal quotation omitted). Injunctive relief is only
appropriate where the party seeking the relief has no adequate remedy at law. The
relevant factors to be considered by a district court are: “(1) the probability of
success on the merits; (2) the threat of irreparable harm to the movant; (3) the
balance between this harm and the injury that granting the injunction will inflict
on the other interested parties; and (4) whether the issuance of an injunction is in
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the public interest.” Entergy, Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th
Cir . 2000) (citing Dataphase, 640 F.2d at 114).
No one factor is dispositive of a request for injunction; the Court considers
all of the factors and decides whether “on balance, they weigh towards granting
the injunction.” Baker Elec. Co-Op, Inc. v. Chaske, 28 F.3d 1466, 1472 (8th
Cir.1994) (quoting Calvin Klein Cosmetics Corp. v. Lenox Lab., 815F.2d 500, 503
(8th Cir.1987). However, no single factor is dispositive, but the movant must
establish a threat of irreparable harm. Dataphase, 640 F.2d at 113. Without a
finding of irreparable injury, a preliminary injunction should not be issued.
Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 738 (8th
Cir.1989) (en banc). The burden of establishing that preliminary relief is
warranted is on the party seeking the injunction. Baker Elec., 28 F.3d at 1472. In
this case, the Court finds that the Dataphase factors have not been satisfied, and a
preliminary injunction will not issue.
Probability of Success on the Merits
The court must consider the “most significant” Dataphase factor: likelihood
that the movant will prevail on the merits. S & M Constructors, Inc. v. Foley Co.,
959 F.2d 97, 98 (8th Cir.1992). At this stage in the proceeding, the court does not
decide whether the movant will ultimately win, nor must the movant prove a
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greater-than-fifty-percent likelihood of success. See Glenwood Bridge, Inc. v. City
of Minneapolis, 940 F.2d 367, 371 (8th Cir.1991); Dataphase, 640 F.2d at 113.
Defendants contend that because they had permission to use Plaintiff’s
copyrighted work, there is no issue of infringement. Defendants point to three
different examples of how permission was granted: an email exchange, a phone
conversation, and a written Clearance Agreement. With regard to the Clearance
Agreement, there is no dispute that after designer Martyn Lawrence Bullard
reached out to Plaintiff to discuss the potential use of the Work, the parties entered
into a written agreement regarding the use of the Work on the Million Dollar
Decorator series. The actual scope of the Clearance Agreement is now in dispute,
however, and Plaintiffs fail to offer sufficient evidence that they will in fact
succeed on the merits. At most, Plaintiffs show that there may be a genuine issue
regarding the scope of the permission granted in the Clearance Agreement. That
alone does not amount to enough evidence to convince the Court that Plaintiffs
will likely succeed on the merits.
Threat of Irreparable Harm
Irreparable harm must be certain and imminent such that there is a clear and
present need for equitable relief. Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th
Cir.1996). Furthermore, the remedy at law must be inadequate. Gen. Motors
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Corp. v. Harry Brown's, LLC, 563 F.3d 312, 319 (8th Cir.2009). An irreparable
injury is an injury “of such a nature that money damages alone do not provide
adequate relief.” Hinz v. Neuroscience, Inc., 538 F.3d 979, 986 (8th Cir.2008).
“[T]he absence of a finding of irreparable injury is alone sufficient ground for
[denying a] preliminary injunction.” Guy Carpenter & Co. v. John B. Collins
Associates, Inc., 179 F.App’x 982, 983 (8th Cir.2006) (quoting Dataphase, 640
F.2d at 114 n. 9) see also, General Motors Corp., 563F.3d at 320.
Plaintiffs
claim a number of reasons why there is a threat of irreparable harm to him. These
reasons fail, however, to rise to the level of irreparable harm.
Plaintffs claim that Eastman has lost control of his art and his reputation;
however, they fail to support this contention with sufficient evidence. In fact, on
September 8m 2011, counsel for both parties met before the Court for a
preliminary injunction hearing. Plaintiff Eastman was unable to attend this
hearing because he was at the Oklahoma City Museum of Art participating in the
opening of “a major exhibition of his photographic art entitled FADED ELEGANCE:
PHOTOGRAPHS OF HAVANA BY MICHAEL EASTMAN.” Doc. #34. The actual photo
that is subject to this current suit is prominently featured in this opening. In light
of this, it would appear that the appearance of The Work in the Bravo series hardly
crippled the control of his art and reputation. Further, assuming Plaintiffs did show
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harm, they failed to show how that harm is not compensable in money damages. It
appears to the Court that Plaintiffs’ contention that they are being irreparably
harmed is different than the irreparable harm as defined by modern case law. As
such, Plaintiffs fail to establish irreparable harm.
Balance of Harms
Under the third Dataphase factor, the Court considers whether any
irreparable harm to the movant outweighs any potential harm to the nonmovants
should the injunction issue. See Dataphase, 640 F.2d at 114. It appears to the
Court that, in balancing the competing claims of injury, Defendants would actually
shoulder more harm than Plaintiffs if the Court were to issue the injunction. Here,
multiple parties, the defendants, would be required to go through various editing
and post-production procedures to eliminate the television footage featuring The
Work. In light of the fact that the episode in question is no longer airing, and the
episode is not currently scheduled to air again on the Bravo network, Plaintiffs’
alleged harm has already taken place. Any additional alleged harm suffered by
Plaintiffs is de minimus.
Public Interest
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It is certainly in the public’s interest not to interfere with freedom of
contract. Although the Court recognizes that there may be a genuine issue as to
the scope of the permission granted in the Clearance Agreement, this issue is not
appropriate for preliminary injunctive relief.
Conclusion
All four factors weigh against Plaintiffs. In the final analysis, Plaintiffs
seek an equitable remedy without supporting demonstrable evidence that they are
entitled to this extraordinary remedy.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Preliminary
Injunction [Doc. #9], is DENIED.
Dated this 22nd day of September, 2011.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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