Court Imposes Sanctions On Plaintiff After Bizarre Copyright Infringement/Defamation/Fraud/Privacy Invasion Lawsuit

from the USE-ALL-THE-LAWS!!! dept

Of all the questionable copyright-related lawsuits, this one is one of the most baffling, at least in terms of plaintiff behavior. Rebecca Tushnet breaks down the pre-history of the legal battle.

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[3]: 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.[5] 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),[4] "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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Coyne Tibbets (profile), Apr 1st, 2014 @ 2:19pm

    Fair use

    “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.”

    It seems like this would be a useful argument for fair use in general. After all, no one (for example) would take a clip of 15 seconds of a song played while someone dances in a video, and install it on their iPod as a substitute for the real song.

     

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    •  
      identicon
      Chris Brand, Apr 1st, 2014 @ 2:32pm

      Re: Fair use

      That's really only the last of the "four factors" that determine whether a use is fair "the effect of the use upon the potential market for or value of the copyrighted work"

       

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  •  
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    Frankz (profile), Apr 1st, 2014 @ 2:51pm

    Now the first thing anybody will find on the internet about her is her actions in this lawsuit and appeal.
    Who the hell would want to hire her after this?

     

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  •  
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    Gracey (profile), Apr 1st, 2014 @ 2:59pm

    Well, what next.

    Neri SOLD the artwork to the homeowner. The homeowner can do as she sees fit with it (unless she actually made some weird stipulations in the contract ... like she (Neri) retained the copyright to the actual work). Whether she (the homeowner) allows it to be photographed, or has someone take a video of herself smashing it to bits, the artwork now belongs to the homeowner, and not to Neri.

    She has no claim at all on it, or what's done with it. Including the photographing of the artwork or displaying it on the web.

    The invasion of privacy stuff is ... actually, I'm not sure I can even find a word to describe it. Ridiculous is too mild.

    OMG ... where do these people come from?

     

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    •  
      identicon
      Digitari, Apr 1st, 2014 @ 4:07pm

      Re:

      .....these are the same people that argue with fast food cashiers over trivial shit, or write a check in the express aisle AFTER everything is rung up....... and are in front of you (doing 10Mph under the speed limit with no chance of passing) while driving

       

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        art guerrilla (profile), Apr 1st, 2014 @ 4:31pm

        Re: Re:

        the same self-important people like i was behind at the grocery store during lunch rush in the '10 items or less' express lane who had 20 or more items...
        'cause -you know- all those annoying restrictions for the benefit of us all, are for other -you know- 'regular' people, not those special snowflakes...
        (without the snow)

         

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    •  
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      Fushta (profile), Apr 2nd, 2014 @ 7:43am

      Re:

      Isn't this clearly a "work for hire" scenario? Like Gracey said, it's the property of the owners of the home.

      The invasion of privacy claim is really odd. Is Neri that ashamed of her work that she doesn't want anyone to see it? She should be happy that it was part of the award, and use that to capitalize on future work for hire.

       

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      •  
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        ChrisH (profile), Apr 3rd, 2014 @ 9:25pm

        Re: Re:

        https://en.wikipedia.org/wiki/Work_for_hire#Law_in_the_United_States

        If the work is prepared by an employee within the scope of his or her employment, it is a "work for hire".

        If the work was done by a contractor (as in this case), it is only a work for hire if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Since none of the defendants seems to have raised the "work for hire" argument, I doubt such an agreement was made.

         

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    •  
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      ChrisH (profile), Apr 3rd, 2014 @ 9:13pm

      Re:

      The default would be that Neri retained copyright in the work unless she contracted it away. Her copyright claim wasn't dismissed because she didn't hold the copyright on the sculpture, rather the photos that captured part of the sculpture as well as room and ceiling were deemed fair use. Any future photos would be subject to the same test, even though the homeowner owns the sculpture. The copyright holder and the sculpture owner don't have to be the same. The copyright holder has copyright "rights" and the owner has ownership "rights".

      The rest of the claims are hilarious and the judge just rips them apart. I couldn't believe any lawyer would make such poor arguments, then I read that she was litigating pro se. Now she'll have to cough up who knows how much to cover the many defendants' legal fees. That can't be cheap, especially for an artist.

       

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    •  
      identicon
      Pragmatic, Apr 7th, 2014 @ 5:22am

      Re:

      This is what happens when you attach property rights to the CREATION of works of art such that whoever "buys" it doesn't really own it - they are merely licensing it.

      The trouble is, you'd never get Neri to admit that she's only licensing, not selling, the work.

      Now ask her why she wants perpetual ownership rights over something she has told the buyer (Hughes) is owned by the buyer.

      Insanity will surely ensue as she ties herself into an intellectual knot trying to explain Schrödinger's Property.

      You get the popcorn, I'll get the beer.

       

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    UriGagarin, Apr 1st, 2014 @ 3:10pm

    Duh....

    Who is this Neri ?
    The original artist is what I got from the article but its not made clear here - sorry for being dense, it's late here and I can't cope with another wall of text.

     

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      art guerrilla (profile), Apr 1st, 2014 @ 4:33pm

      Re: Duh....

      you are not dense, the summary was nearly incoherent: every paragraph was talking about a different cast of characters that popped up and had no context or previous introduction...

       

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        Niall (profile), Apr 2nd, 2014 @ 4:27am

        Re: Re: Duh....

        That's what I thought at first, but on a careful re-read, most of them became obvious. The only person not specifically called out was the (presumed) photographer, Ferguson. It didn't help that some of the quoted segments were pretty confusing: "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."

        That being said, it wasn't an easy read, and it could have been better explained. To be fair to Tim though, he was quoting Rebecca Tushnet and it was her passages that were the densest.

         

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          ChrisH (profile), Apr 3rd, 2014 @ 9:29pm

          Re: Re: Re: Duh....

          To be fair, the reason it's so confusing (I thought so too) is that this was a big remodeling project with many people involved, and the plaintiff named almost all of them as defendants.

           

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    identicon
    scott taggart, Apr 1st, 2014 @ 3:26pm

    This is a terrible summary - you introduce names randomly w/o saying who they are or what their relationship is to anyone else or to the work. I read the first few paragraphs multiple times and it flat out makes no sense who is doing what to whom and why.

     

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    Chris-Mouse (profile), Apr 1st, 2014 @ 3:46pm

    This sort of entitlement mentality is one of the biggest arguments in favor of completely abolishing copyright.

     

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 3:58pm

    Sméagol thinking

    "I made it, therefore it's mine!!!"

     

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 4:54pm

    Terribly written article.

    But I see time and again architects copyrighting blueprints of work already done by others century and a half earlier.

     

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      Gwiz (profile), Apr 2nd, 2014 @ 7:44am

      Re:

      But I see time and again architects copyrighting blueprints of work already done by others century and a half earlier.


      Copyright for architectural plans are for the drawings themselves, not the building. You can't stop someone from photographing a building made from your plans nor can you stop the building owner from changing or destroying the building he owns.

      Kind of like how a copyright on a recipe protects that particular expression of the recipe, but nothing prevents someone from actually cooking the dish the recipe describes.

       

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  •  
    identicon
    Just Another Anonymous Troll, Apr 2nd, 2014 @ 7:00am

    I think the reason the article is so incoherent is because the person it's about is stupid and incoherent. It's difficult to summarize incoherency without being incoherent yourself.

     

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    Roger Strong (profile), Apr 2nd, 2014 @ 10:27am

    > According to Neri, it was not until she found the photos on ABA’s website and discovered that the artwork had “won” NARI awards...”

    Hefty levy, but nary a trophy for Neri from NARI for nifty entryway. Nasty.

     

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