Court Imposes Sanctions On Plaintiff After Bizarre Copyright Infringement/Defamation/Fraud/Privacy Invasion Lawsuit
from the USE-ALL-THE-LAWS!!! dept
In 2008, Linda Hughes hired ABA to remodel her condo and remove a large mural from the dome of her entryway, replacing it with more modern artwork. This required rebuilding the ceiling. Hughes hired an interior designer, Amy Radspinner, to assist with the remodeling and to handle decorating. Radspinner contacted Neri; Neri and Schomburg worked together to create a composition comprised of about 60 individual blown glass pieces that eventually were installed onto the remodeled ceiling of the entryway…
Consistent with industry practice, Monroe got Hughes’ permission to take photos of the remodeling project to document ABA’s work, to advertise ABA’s services and to apply for industry awards on ABA’s behalf. Ferguson took a series of photographs of the interior of Hughes’s condominium, including two photographs of the completed entryway and ceiling. Neither photograph depicts all of the glass pieces, although some pieces appear in both. Ferguson’s goal was to showcase the design work and changes, and the photos show the glass pieces, the barrel-vault ceiling, a waterfall designed by ABA, the furniture, other art and decorative accessories. ABA paid Ferguson for unlimited usage rights in the photos…
According to Neri, it was not until she found the photos on ABA’s website and discovered that the artwork had “won” NARI awards that she began to think of it as anything but “just another project.” (The court rejected her claim that the sculpture “won” an award for which she received no credit, since NARI awards are not art awards.) After she sued, ABA and Sager removed the allegedly infringing photographs from their websites… [The photos in question are posted at Tushnet’s site.]
This looks like a case of the artist discovering she wasn’t going to get paid multiple times for a single artwork, no matter how incidental its appearance in the contest photos was. (It should be noted that the photographer was only paid once as well, but there are no complaints coming from him…) What Neri claimed was that the photos of the entryway, which included her glasswork, were infringing. But that wasn’t the only thing she claimed during the course of the lawsuit. Many more claims were made that were equally as tenuous. In its decision, the Wisconsin Court of Appeals kicked every one of Neri’s claims to the curb.
The court found that Ferguson’s photograph met many of the stipulations for fair use, perhaps most significantly that the photographs were no replacement for the actual sculpture.
“no one interested in viewing or purchasing a glass sculpture … would be satisfied by mounting a copy of one of Ferguson’s photographs to his or her ceiling.”
But reading through the lawsuit, it becomes apparent that Neri had decided to throw nearly every legal argument against the wall in hopes of coming out slightly richer by the end of it.
Specifically, Neri complains that the defense attorneys in Neri’s federal copyright action made defamatory statements about Neri in court filings and in an email sent by an attorney to Neri and copied to other attorneys; that Neri identified a valuable mural in Hughes’ ceiling but was not hired to remove it or otherwise compensated for the discovery; that Neri was not hired to rebuild Hughes’ ceiling to accommodate the glass sculpture; and that photographs of the glass sculpture were posted on the internet and used to win an interior design award, without crediting Neri.
The defamation claim was based on the following:
Neri’s complaint states that the defense attorneys in Neri’s federal copyright action made the following false statements about Neri: that Neri had engaged in “excessive, unusual, harassing and unjustifiable litigation”; that Neri was an “amateur copyright troll” who was “trying to make money by filing baseless copyright suits and extorting settlement payments from businesses..”
The court points out that only “unprivileged” speech is subject to defamation claims, something statements made in court clearly aren’t. It also notes that this protection of privileged speech extends to written documents dealing with court proceedings, which covers the attorney’s email.
Bafflingly, Neri also claimed that the photography of her sculpture, along with the uncredited distribution of those photos, somehow amounted to defamation. The court notes that this allegation fails to claim any statement has been made by the defendants, something that’s absolutely required when claiming defamation.
This ties in later with another claim addressed later in the decision — this one for trade libel — where Neri claimed that publishing a photo of her sculpture with “altered coloring” (a black and white photo) was somehow damaging to her personal brand. The court (again) reminds her that these words she’s using have specific definitions and are not just something to throw out there in hopes of latching onto someone else’s money.
Nothing in Neri’s complaint supports a claim that any of the respondents disparaged Neri’s art. Accordingly, Neri has not stated a claim for trade libel.
The whole opinion is an exhausting read, as one can only imagine the judges’ weariness of dealing with a litigious plaintiff who clearly has very little understanding of the applicable laws and statutes she invokes. A footnote in the ruling gives the reader some idea of what the court dealt with over the last several months.
Neri’s complaint is lengthy and largely incoherent.
Neri also claimed she was defrauded by the defendants’ failure to properly acknowledge the artwork’s creator.
Here, Neri’s complaint does not set forth any facts that would support a claim that any defendant made a false representation to Neri that induced Neri to act to her detriment. Rather, Neri’s complaint sets forth vague assertions that the defendants were dishonest in connection with the glass sculpture and the remodeling of the Hughes home. Neri does not set forth any specific false representation to Neri, nor does she set forth any actual reliance by Neri on an allegedly false statement. Accordingly, Neri has not stated a claim for fraud.
Here’s the court addressing perhaps the most baffling claim in a sea of litigious befuddlement.
Neri contends that she has stated a claim for invasion of privacy. This argument is premised on the idea that displaying Neri’s glass sculpture on the internet is the equivalent of displaying her name or image and, thus, the respondents violated Neri’s privacy by displaying the sculpture to others. This is simply not the law on invasion of privacy. Under WIS. STAT. § 995.50(2)(b) (2011-12), “invasion of privacy” includes “[t]he use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person” (emphasis added). A glass sculpture is not a living person.
Alternatively, Neri asserts that she has stated a claim for invasion of privacy because posting photographs of the glass sculpture on the internet disclosed Neri’s private artwork to the public, which would be highly offensive to a reasonable person.See WIS. STAT. § 995.50(2)(c). This argument, too, lacks arguable merit. Under the facts in Neri’s complaint, Neri created the glass sculpture for installation in the Hughes home where any reasonable person would understand it would be visible to all who visited the home. Neri’s claim that allowing others to see the sculpture invaded her private life makes no sense.
The end result of Neri’s legal battle is a dismissal of all claims and the awarding of attorneys’ fees and court costs to the defendants, with the court noting her appeal was less of an actual appeal than simply a restatement of earlier claims.
While Neri asserts many wrongs against her, the only coherent argument we decipher in her brief is an assertion as to the merits of the claims in her complaint.
That complaint being, of course, the one that was “largely incoherent.”
As Tushnet notes, testimony given earlier by the defendants noted that not once had any architectural photographer paid a license fee to cover “use” of artwork installed in homes being photographed. That the remodeled entryway contained “her” artwork (it was sold to the homeowners) was only incidental to the remodeling effort, and when Neri found that infringement claims weren’t working, she tried to bring in trademark law, defamation and “invasion of privacy” in a desperate attempt to have this “wrong” corrected. But there’s nothing there, and in chasing that ethereal vision of being compensated for imaginary “rights,” she only managed to dig herself a financial hole and damage her own reputation.