Gordon v. McGinley et al

Filing 32

OPINION AND ORDER re: 25 JOINT MOTION to Dismiss Amended Complaint, filed by Ryan McGinley: For the reasons stated within, Defendant's motion to dismiss is HEREBY GRANTED. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 25 and to close this case. (Signed by Judge Richard J. Sullivan on 8/18/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
..... - 1

No. 11 Civ. 100 I (RJS)

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JANINE GORDON,

Plaintiff,

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VERSUS

RYAN MCGINLEY, ETAL.,

Defendants.

OPINION AND ORDER
August 18, 20 II

RICHARD J. SULLIVAN, District Judge:
This copyright infringement action
concerns the field of art photography and the
limits of federal copyright law. Specifically,
Plaintiff Janine Gordon alleges serial
exploitation of her work by a rival art
photographer, Defendant Ryan McGinley.
Plaintiff also brings this suit against
Defendants Levi Strauss & Company, Inc.,
Christopher Perez, Ratio 3 Gallery, Team
Gallery Inc., Peter Halpert, and Peter Hay
Halpert
Fine
Art,
alleging
direct,
contributory, and vicarious copyright
infringement, as well as various state law
claims.'
Now before the Court is
Defendants' joint motion to dismiss the
Amended Complaint pursuant to Rule
I
Three additional Defendants, Jose Friere, Agnes
Andree Marguerite Trouble, and Agnes B.
Worldwide, Inc., were named in the pleadings but
were thereafter voluntarily dismissed,

12(b)( 6) of the Federal Rules of Civil
Procedure. Because Plaintiff has failed to
meet even the most basic threshold for
pleading
copyright
infringement,
Defendants' motion is granted.

1. BACKGROUND
Plaintiff is a professional photographer
who has practiced in the field of
photographic art for more than 15 years?

2
As noted below, the facts set forth herein are
derived from the Amended Complaint, which is
presumed to be true for purposes of the instant
motion. See A r,.C:;1 Commc 'ns v. Shaar Fund, Ltd,
493 F.3d 87, 98 (2d CiT. 2007). In addition, the
Court has considered Defendants' Memorandum of
Law in Support of the Motion to Dismiss (HDefs.'
Mem."), Plaintiffs Memorandum of Law in
Opposition to the Motion to Dismiss (UPl.'s Opp'n"),
and Defendants' Reply Memorandum of Law in
Support of the Motion to Dismiss ("Reply"), as well

(Am. Compl. ¶ 41.) Her work has been
exhibited at such venues as the Whitney
Museum, where her pieces are on permanent
display, the San Francisco Museum of
Modern Art, Dartmouth College, and the
Hammer Museum in Los Angeles. (Id.
¶¶ 41-42.)

Plaintiff commenced this action by filing
a Complaint on February 14, 2011 and an
Amended Complaint on March 29, 2011.
The Amended Complaint includes causes of
action for direct copyright infringement in
violation of 17 U.S.C. §§ 101 et seq.,
contributory
copyright
infringement,
vicarious copyright infringement, breach of
implied contract, breach of implied duty of
confidentiality, deceptive trade practices in
violation of New York General Business
Law § 349, false advertising in violation of
New York General Business Law § 350, and
trademark dilution in violation of New York
General Business Law § 360(L).
Defendants moved to dismiss on June 10,
2011, and the motion was fully submitted as
of July 11, 2011.

Defendant Ryan McGinley is a rival art
photographer whose work comprises the
principal subject of this infringement action.
The Complaint alleges a sprawling history
of “surreptitious[]” copyright infringement
(id. ¶ 2), in which McGinley obtained access
to Plaintiff’s work through her public
exhibitions (id. ¶¶ 48, 53) and thereafter
produced “strikingly similar” images (id.
¶ 57). McGinley allegedly created images
that were “both blatantly and subtly
derivative” of Plaintiff’s work (id. ¶ 68) for
a series of advertising campaigns commissioned by Defendant Levi Strauss (id.
¶ 66). The Complaint further alleges that
various (1) art galleries, including
Defendants Ratio 3 Gallery, Team Gallery,
and Peter Hay Halpert Fine Art; and (2) art
gallery owners, including Defendants
Christopher Perez and Peter Halpert, “used,
sold, distributed, and/or exploited” the
infringing McGinley work. (Id. ¶ 98(i).)
Attached to the pleadings are no fewer than
150 allegedly infringing images (the
“McGinley Images”), including a side-byside comparison with each of Plaintiff’s
allegedly infringed images (the “Gordon
Images”).3 (Id., Ex. E.)

II. LEGAL STANDARD
In reviewing a motion to dismiss
pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must
accept as true all factual allegations in the
complaint and draw all reasonable
inferences in favor of the plaintiff. ATSI
Commc’ns v. Shaar Fund, Ltd., 493 F.3d 87,
98 (2d Cir. 2007). To survive a Rule
12(b)(6) motion to dismiss, a complaint
must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility
when the plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009). By contrast, a
pleading that only “offers ‘labels and
conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’”
Id. (quoting Twombly, 550 U.S. at 555). If
the plaintiff “ha[s] not nudged [his] claims
across the line from conceivable to

as the various exhibits and declarations attached
thereto.
3

The Court notes that Plaintiff failed to append
Exhibits A-H to the Amended Complaint. Because
the missing exhibits include the compendium of
images at issue, the Court has also considered the
original Complaint for the limited purpose of
examining Exhibits A-H.

2

plausible, [his] complaint must
dismissed.” Twombly, 550 U.S. at 570.

matter of law,” Kregos v. Associated Press,
3 F.3d 656, 664 (2d Cir. 1993), the district
court can properly conclude that the
plaintiff’s complaint and the works
incorporated therein do not “plausibly give
rise to an entitlement to relief,” Iqbal, 129 S.
Ct. at 1950.

be

III. DISCUSSION
In order to establish a copyright
infringement claim, “a plaintiff with a valid
copyright must demonstrate that: (1) the
defendant has actually copied the plaintiff’s
work; and (2) the copying is illegal because
a substantial similarity exists between the
defendant’s work and the protectible
elements of plaintiff’s [work].” Hamil Am.,
Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999)
(internal citation and quotation marks
omitted). In this case, Defendants move to
dismiss the copyright claims based primarily
on the issue of substantial similarity. (See
Defs.’ Mem. 3.) Accordingly, the principal
issue before the Court is whether a
substantial similarity exists between the
allegedly infringing images and the
protectible elements of Plaintiff’s work.

“The standard test for substantial
similarity between two items is whether an
‘ordinary observer, unless he set out to
detect the disparities, would be disposed to
overlook them, and regard [the] aesthetic
appeal as the same.’” Yurman Design, Inc.
v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.
2001) (quoting Hamil Am., 193 F.3d at 100).
In applying the so-called “ordinary observer
test,” the district court asks whether “an
average lay observer would recognize the
alleged copy as having been appropriated
from the copyrighted work.” Knitwaves,
Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d
Cir. 1995). When faced with works “that
have both protectible and unprotectible
elements,” however, the analysis must be
“more discerning.” Gaito, 602 F.3d at 66.
In such circumstances, the district court
“must attempt to extract the unprotectible
elements from [its] consideration and ask
whether the protectible elements, standing
alone, are substantially similar.” Knitwaves,
71 F.3d at 1002 (emphasis omitted).

A. Substantial Similarity
1. The Standard
Although “[t]he test for infringement of
a copyright is of necessity vague,” Peter
Pan Fabrics, Inc. v. Martin Weiner Corp.,
274 F.2d 487, 489 (2d Cir. 1960), “[t]he
question of substantial similarity is by no
means exclusively reserved for resolution by
a jury,” Peter F. Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir.
2010). Where, as here, “the works in
question are attached to a plaintiff’s
complaint, it is entirely appropriate for the
district court to consider the similarity
between those works in connection with a
motion to dismiss, because the court has
before it all that is necessary in order to
make such an evaluation.” Id. at 64. Thus,
if the district court determines that the works
at issue are “not substantially similar as a

Courts have noted the apparent tension
between a copyright test that embraces the
holistic impression of the lay observer and
one that imposes the partial filter of the
“more discerning” observer.
See, e.g.,
Canal+ Image UK Ltd. v. Lutvak, No. 10
Civ. 1536 (RJH), 2011 WL 2396961, at *6
(S.D.N.Y. June 8, 2011). But rather than
jettison the more discerning observer test,
the Second Circuit has explicitly
“disavowed any notion that [the courts] are
required to dissect [the works] into their
separate components, and compare only

3

those elements which are in themselves
copyrightable.” Gaito, 602 F.3d at 66
(internal citations and quotation marks
omitted). Instead, we are primarily guided
“by comparing the contested design’s ‘total
concept and overall feel’ with that of the
allegedly infringed work,” Tufenkian
Import/Export Ventures, Inc. v. Einstein
Moomjy, Inc., 338 F.3d 127, 133 (2d Cir.
2003), as informed by our “good eyes and
common sense,” Hamil Am., 193 F.3d at 102
(alteration omitted).
2. The Images
In this case, the dictates of good eyes
and common sense lead inexorably to the
conclusion that there is no substantial
similarity between Plaintiff’s works and the
allegedly infringing compositions of
McGinley. Although the Court declines to
conduct an exhaustive inventory of the 150
allegedly infringing images, a representative
sample illustrates and confirms this result.

Gordon Image (Ex. A-1)

Exhibit A to Plaintiff’s opposition
papers pairs each McGinley Image with the
allegedly infringed Gordon Image and
compares the two based on content, color,
composition, technique, texture, perspective,
and lighting. (Pl.’s Opp’n, Ex. A.) Exhibit
A-1, purportedly the most “blatan[t]” of the
infringing
images,4
contains
two
photographs of young men suspended before
a cloudy sky, each with his right arm
extended and bent at an approximate right
angle. (Id., Ex. A-1.)

McGinley Image (Ex. A-1)
But there the similarity ends. The
Gordon Image is black and white and
vertical, while the McGinley Image is in full
color and horizontal. The Gordon figure is
clothed in a short-sleeve T-shirt, dark pants,
and tennis shoes; his hair is closely shorn.
The McGinley figure is clothed in a longsleeve shirt and shorts and is barefoot; his
hair is medium-length. Plaintiff attempts to
obscure these “peripheral” differences by
cropping and rotating the Gordon Image and
converting the McGinley image to black and
white. (Pl.’s Opp’n 18.) But not even these
alterations can reconcile the “total concept
and overall feel” of the two images.
Tufenkian Import/Export Ventures, 338 F.3d

4

(See Pl.’s Opp’n 2 (noting that Exhibit A arranges
the images in the “order of blatancy”).) The Court
notes that although the image citations herein refer to
Exhibit A to Plaintiff’s opposition papers, the same
images appear in Exhibit E to the original Complaint,
albeit in a different order.

4

Once again, Plaintiff attempts to
manipulate the comparison, this time by
flipping the McGinley image horizontally
and superimposing color-coded outlines of
the shapes and figures that purportedly
correspond. But even granting Plaintiff’s
dubious analogy between the motorcycle in
the Gordon Image and the crouching roller
skater in the McGinley Image, the
relationship between the figures remains
distinct. The female roller skater sits astride
the shoulders of the male roller skater in the
McGinley Image, while the stunt biker in the
Gordon Image stands adjacent to his
motorcycle, touching only the handlebar.
The female roller skater faces the camera,
smiling broadly, while the stunt biker
appears in silhouette, his face concealed by a
helmet. In short, “no reasonable jury,
properly instructed, could find that the two
works are substantially similar.” Warner
Bros. Inc., 720 F.2d at 240.

at 133. The Gordon figure is muscular and
taut, with not one but both arms splayed in a
gesture of virile triumph. The look on his
face is intent, perhaps even defiant. The
McGinley figure is slender and his posture
relaxed, with both legs floating apart rather
than clenched together. His head drapes to
one shoulder and a dreamy look inhabits his
face as he falls through the frame. Thus, the
overall feel of the McGinley Image is that of
a passive figure simply surrendering to
gravity, while the overall feel of the Gordon
Image derives from a dynamic figure
jumping into the frame. No dissection of the
images is required to discern the “utter lack
of similarity” between the two. Gaito, 602
F.3d at 66.
The remaining exhibits are even less
compelling. Exhibit A-27, for example,
depicts both a stunt biker with his
motorcycle (the Gordon Image) and two
nude models on roller skates (the McGinley
Image). (Pl.’s Opp’n, Ex. A-27.) Both the
biker and the roller skaters are engulfed in
smoke.

Although Plaintiff consistently alters the
images at issue in order to bolster her
infringement claims, the Exhibit A
compendium also illustrates her penchant
for strained image descriptions.
For
example, Exhibit A-35 contains two
photographs of the nude female pelvis, one
with hair draped over the shoulder and
covering the abdomen (the Gordon Image),
and one with a tarantula positioned over the
belly button (the McGinley Image). (Pl.’s
Opp’n, Ex. A-35.) In the Gordon Image, the
model is standing against a black
background with her hands on her hips. In
the McGinley Image, the model is reclining
on a light background, and her arms do not
appear in the photograph.
Plaintiff
nonetheless insists that this too is copyright
infringement, straining to describe the
unruly tresses of the Gordon model as “long
spidery hair.” (Id.) What Plaintiff neglects
to consider is that “[i]n copyright
infringement actions, the works themselves

Gordon Image (Ex. A-27)

McGinley Image (Ex. A-27)

5

supersede and control contrary descriptions
of them.” Gaito, 602 F.3d at 64 (internal
citations and quotation marks omitted).
Thus, simply assigning creative adjectives to
features of a photograph cannot manufacture
substantial similarity where none exists.
The flaw in Plaintiff’s case is perhaps
best illustrated by her allegation that three
separate McGinley Images infringe the same
Gordon Image, albeit for slightly different
reasons. The Gordon Image at issue depicts
a crowded street scene in which a central
figure gazes skyward while seemingly
restraining a throng of young men with his
outstretched arms. (Pl.’s Opp’n, Exs. A-13,
A-66, A-67.)

McGinley Image (Ex. A-66)

McGinley Image (Ex. A-67)
Plaintiff emphasizes the outstretched
arms in all three McGinley Images, as well
as the open mouths in Exhibits A-13 and A66 and the upturned faces in Exhibits A-13
and A-67. But despite these common
elements, the “total concept and overall
feel” of the allegedly infringing photographs
wildly diverges from that of the Gordon
Image. The Gordon figure acts in response
to the crowd behind him, his arms reaching
across the bodies of his companions in a
gesture of restraint. By contrast, the figures
in the McGinley Images are conspicuously
alone. The McGinley Image in Exhibit A13 captures a moment of private
enchantment at sunset. The model spreads
his (or her) arms in a gesture of silent
rapture; a falling leaf lingers at the bottom of
the frame. In Exhibit A-66, the McGinley
model thrusts his arms above his shoulders,
creating a silhouette that is both stylized and
vaguely cruciform. Finally, the McGinley
model in Exhibit A-67 extends his arms
behind his body, as if to propel himself into
flight. A solitary shadow fills the corner of
the frame.

Gordon Image (Exs. A-13, A-66, A-67)
The three McGinley Images each depict a
single figure against the background of a
clouded sky (id., Exs. A-13, A-66) or a
studio backdrop (id., Ex. A-67).

McGinley Image (Ex. A-13)

6

Less readily apparent is the fact that only
the Gordon Image is a still photograph. The
McGinley Image is a screen grab from
“Levi’s America,” a video montage that
combines black-and-white footage of rural
and urban Americana. (See Defs.’ Mem.,
Ex. 3.) The soundtrack to the one-minute
video features a solemn and sonorous voice
reciting the Walt Whitman poem “America,”
as each word or phrase flashes on screen.
The allegedly infringing McGinley Image
appears at the 51-second mark, spliced
between video of a shadowy figure standing
on a wooden post and a shirtless adolescent
leaping through the spray of sparks from a
firecracker.

None of the foregoing McGinley Images
captures or even echoes the responsive
contact or the urban grit that characterize the
corresponding Gordon Image. Because a
side-by-side
comparison
of
these
photographs “simply does not prompt an
ordinary observer to regard the aesthetic
appeal . . . as the same,” Biosafe-One, Inc. v.
Hawks, 524 F. Supp. 2d 452, 463 (S.D.N.Y.
2007), there can be no finding of substantial
similarity.
The Court further notes that 39 of the
allegedly infringing Gordon Images are
screen grabs from video files rather than still
photographs. (See Defs.’ Mem. 11 n.3.)
Exhibit A-104, for example, depicts two
interracial couples kissing. In both images,
a black man in the right half of the frame
kisses a white woman in the left half of the
frame. The faces of the couple in the
Gordon Image are hidden from view, while
the faces of the couple in the McGinley
Image appear in full profile, with the arms
of the woman stretched overhead.

Thus, the allegedly infringing McGinley
Image is derived from a wholly dissimilar
and dynamic medium, in which camera
angles, lighting, and focus are changing at a
rate of 29.4 frames per second. (See Defs.’
Mem. 12 n.4.) Plaintiff supplies little
authority for the proposition that a single
frame from a work containing more than
1,700 discrete images (see id.) can support a
claim for copyright infringement of a still
photograph.5
Instead, Plaintiff quotes
extensively from Judge Kaplan’s opinion in
Mannion v. Coors Brewing Co., 377 F.
Supp. 2d 444 (S.D.N.Y. 2005), arguing that
the photograph-video comparison is
permissible because “a photographer’s
‘conception’ of his subject is copyrightable.”
(Pl.’s Opp’n 12 (quoting Mannion, 377 F.

Gordon Image (Ex. A-104)

5

The Court notes that a recent copyright decision by
Judge Scheindlin identified substantial similarity
between a music video and a still photograph based
on a determination that “both works share the frantic
and surreal mood of women dominating men in a
hyper-saturated, claustrophobic domestic space.”
LaChapelle v. Fenty p/k/a/ Rihanna, No. 11 Civ. 945
(SAS) (S.D.N.Y. July 20, 2011), Doc No. 34, at 22.
Although the Court is ultimately unpersuaded by the
analysis in LaChappelle, the fact remains that the
images at issue in this action are so obviously
dissimilar as to make the LaChappelle decision
wholly inapposite.

McGinley Image (Ex. A-104)

7

(S.D.N.Y. 2005) (same). Thus, despite the
prestigious credentials of the artists and
aficionados who have rallied to Plaintiff’s
side, their testimony bears no relevance to
the issue of substantial similarity in this
case.

Supp. 2d at 458)). But the protected
“conception” is not the idea of an interracial
kiss, but the artist’s “originality in the
rendition, timing, and creation of the subject
– for that is what copyright protects in
photography.” Mannion, 377 F. Supp. 2d at
458. In this case, neither the timing nor the
creation of the subject is original to Plaintiff,
and the static rendition of the Gordon Image
bears no likeness to the pace and pulse of
the corresponding McGinley work. Thus,
Plaintiff’s appeal to Mannion simply
underscores the substantial dissimilarity
between the images at issue.

Moreover, the substance of the expert
affidavits simply underscores the infirmity
of Plaintiff’s infringement claim. Several
experts profess a belief that Plaintiff should
prevail in this action while disavowing any
familiarity with copyright law. (See Pl.’s
Opp’n, Ex. B, Aff. of Dan Cameron, June
27, 2011, ¶ 4 (“I do not pretend to
understand all the legal complexities of Ms.
Gordon’s case”); id., Ex. F, Aff. of Volker
Diehl, June 29, 2011, ¶ 9 (“I am unfamiliar
with laws surrounding this issue, in
particular the laws of the United States as it
pertains to such causes of action”).)
Another opines on the contours of “fine art
ethics” (id., Ex. D, Aff. of Heather Holden,
June 24, 2011, ¶ 12) and acknowledges that
art expertise “may be needed” to discern the
relationship between the images at issue (id.,
Ex. D., Holden Aff., ¶ 11). What is clear
from the foregoing expert testimony is not
that Plaintiff should prevail in this action,
but that the remedy for the instant dispute
lies in the court of public or expert opinion
and not the federal district court.

3. The Experts
In lieu of identifying substantial
similarities in the allegedly infringing
images, Plaintiff appeals to a series of
affidavits by various artists, curators, and
critics who have embraced her cause. Based
on these submissions, Plaintiff argues that
the “consensus” of experts who have
reviewed the Gordon and McGinley Images
is that McGinley’s work is “not original to
him” (Pl.’s Opp’n 17) and that his
photographs “are overtly and repeatedly
derived” from Gordon’s (id. at 19).
But Plaintiff’s reliance on her battery of
art experts is misplaced. Second Circuit law
clearly “limit[s] the use of expert opinion in
determining whether works at issue are
substantially similar.” Computer Assocs.
Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 713
(2d Cir. 1992). Although courts have
occasionally permitted expert testimony in
technical fields such as computer
programming, such exceptions are “not
intend[ed] to disturb the traditional role of
lay observers in judging substantial
similarity in copyright cases that involve the
aesthetic arts, such as music, visual works or
literature.” Id. at 713-14; see Shine v.
Childs, 382 F. Supp. 2d 602, 614 n.8

Upon examining the “total concept and
feel” of the McGinley Images with “good
eyes and common sense,” Hamil Am., 193
F.3d at 102, the Court “confidently
conclude[s] that no average lay observer
would recognize the alleged copy as having
been appropriated from the copyrighted
work,” Gaito, 602 F.3d at 67 (internal
citation and quotation marks omitted). The
fact that McGinley’s works may be
ultimately derivative and unoriginal in an
artistic sense – something which the Court
has neither the expertise nor inclination to

8

("In general, where the federal claims are
dismissed before trial, the state claims
should be dismissed as welL").

pronounce upon is beside the point. Most
commercial advertising is derivative in that
sense, and as the Second Circuit has
observed, "not all copying results in
copyright infringement." Boisson v. Ban ian,
Ltd., 273 F.3d 262, 268 (2d Cir. 2001).
Plaintiff s apparent theory of infringement
would assert copyright interests in virtually
any figure with outstretched arms, any
interracial kiss, or any nude female torso.
Such a conception of copyright law has no
basis in statute, case law, or common sense,
and its application would serve to undermine
rather than promote the most basic forms of
artistic expression. One might have hoped
that Plaintiff - an artist - would have
understood as much, or that her attorneys,
presumably familiar with the basic tenets of
copyright and intellectual property law,
would have recognized the futility of this
action before embarking on a long, costly,
and ultimately wasteful course of litigation
in a court of law. In any event, for the
reasons set forth above, and as should have
been obvious from the outset, the Court
grants the motion to dismiss Plaintiffs
copyright infringement claim.

III. CONCLUSION
For
the
reasons
stated
above,
Defendant's motion to dismiss is HEREBY
GRANTED. The Clerk of the Court is
respectfully directed to terminate the motion
located at Doc. No. 25 and to close this case.

SOORDERE~

ICHRI)js~

United States District Judge
Dated: August 18,2011
New York, New York
***

Plaintiff is represented by Joseph J.
Mainiero and Antony Hilton of the Law
Offices of Joseph J. Mainiero, Esq., 305
Broadway, Suite 402, New York, New York
10007.
Defendant Ryan McGinley is
represented by Jack A. Gordon and Joshua
B. Katz of Kent, Beatty & Gordon, LLP,
425 Park A venue, New York, New York
10022. Defendant Levi Strauss & Co. Inc.
is represented by Guy Robert Cohen and
Shireen Keen of Davis & Gilbert LLP, 1740
Broadway, New York, New York 10019.
Defendants Christopher Perez and Ratio 3
Gallery are represented by Edward Henry
Rosenthal and Nicole Isobel Hyland of
Frankfurt Kurnit Klein & Selz, P.C., 488
Madison A venue, New York, New York
10022. Defendant Team Gallery, Inc. is
represented by Margaret M. Brady and
Ronnie L. Silverberg of Brady, Klein &
Weimann LLP, 501 Fifth Avenue, Suite
1900, New York, New York 10017.
Defendants Peter Halpert and Peter Hay

B. Other Claims
Because Plaintiff fails to allege direct
copyright infringement by any Defendant,
there can be no secondary infringement
claim. See Faulkner v. Nat'l Geographic
Enters. Inc., 409 F .3d 26, 40 (2d Cir. 2005)
can
be
no
contributory
("[T]here
infringement absent actual infringement
.... "); BroadVision, Inc. v. Med. Protective
Co., No. 08 Civ. 1478 (WHP), 2010 WL
5158129, at *4 (S.D.N.Y. Nov. 23, 2010)
("A party claiming vicarious liability must
establish that direct infringement occurred
.... "). The Court also declines to exercise
supplemental jurisdiction over Plaintiff s
remaining state law claims. See Marcus v.
AT&T Corp., 138 F.3d 46,57 (2d Cir. 1998)

9

Halpert Fine Art are represented by Jura
Christine Zibas of Wilson Elser Moskowitz
Edelman & Dicker LLP, 150 East 42nd
Street, New York, New York 10017, and
Scott Mailman Smedresman of Wilson Elser
Moskowitz Edelman & Dicker LLP, 3

Gannett Drive, White Plains, New Yark
10604.

10