Community for Creative Non-Violence v. Reid, Civ. A. No. 86-1507.

• Decision Date: 09 February 1987
• Docket Number: Civ. A. No. 86-1507.
• Parties: COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Plaintiffs, v. James Earl REID, et al., Defendants.
• Court: U.S. District Court — District of Columbia

652 F. Supp. 1453

COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Plaintiffs, v. James Earl REID, et al., Defendants.

Civ. A. No. 86-1507.

United States District Court, District of Columbia.

February 9, 1987.

Timothy D. Junkin, Washington, D.C., for plaintiffs.

William Zinman, Baltimore, Md., for defendants.

DECISION AND ORDER

JACKSON, District Judge.

Plaintiffs Community for Creative Non-Violence ("CCNV"), a Washington-based non-profit unincorporated association of persons committed to the causes of the homeless people of America, and its agent, Mitch Snyder, sue James Earl Reid, a Baltimore sculptor and his photographer colleague, Ronald Purtee, for relief under the Copyright Act of 1976, 17 U.S.C. §§ 101-702 (the "Act"), to determine and enforce their rights with respect to a statue sculpted by Reid pursuant to an oral agreement with Snyder in the fall of 1985.¹ Specifically, CCNV and Snyder pray that they be declared the owners of the copyright, and that Reid (and anyone else claiming with him) be permanently enjoined from infringing upon that copyright in any manner.² Upon the following facts, as found by the Court in accordance with Fed.R. Civ.P. 52(a) upon trial without a jury, the Court concludes, for the reasons stated, that judgment must be given for plaintiffs and the relief prayed, in substance, be granted.

I.

In late September or early October, 1985, at a friend's suggestion, Snyder determined that CCNV would sponsor a display at the forthcoming national Christmastime Pageant of Peace on the Ellipse in Washington, D.C., to dramatize the plight of the nation's homeless. Snyder and fellow CCNV members conceived the idea for the nature of the display: a sculpture of a modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult figures and the infant would appear as contemporary homeless people huddled on a streetside steam grate. The family was to be black (most of the homeless in Washington being black); the figures were to be life-sized, and the steam grate would be positioned atop a platform "pedestal," or base, within which special-effects equipment would be enclosed to emit simulated "steam" through the grid to swirl about the figures. They also settled upon a title for the work — "Third World America" — and a legend for the pedestal: "and still there is no room at the inn."

Snyder then made inquiries to locate an artist to do the work and was referred by a mutual artist-acquaintance in Massachusetts to James Earl Reid. The agreement between Snyder and Reid was reached in the course of two telephone calls in October, 1985. Reid, enthusiastic from the outset about the project, at first proposed that the work be cast in bronze, at a total cost approaching $100,000 or more, and taking six to eight months to complete. Told by Snyder that CCNV did not have such a sum to spend, and that the statue had to be completed by December 12th to be included in the Pageant of Peace, Reid suggested an alternative material known as "Design Cast 62," a synthetic substance with which he could work more quickly and would cost substantially less. Reid assured Snyder that Design Cast 62 was sufficiently durable to withstand the elements — "as strong as concrete," according to Snyder — and could be tinted to resemble bronze. Snyder agreed to the use of Design Cast 62. Reid then estimated the cost at $12,000 to "no more than" $15,000, not including his services which he offered to donate, and Snyder assented to the price. Reid then promised to endeavor to meet the deadline, and the bargain was complete. Neither party mentioned copyright.³

Reid commenced work immediately, making sketches of individual figures in possible poses, and CCNV members made plans for an art auction to raise funds by selling works donated by other artists in sympathy with their cause. About November 1st CCNV paid Reid an advance of $3,000, and Reid sent CCNV a sketch of a proposed arrangement of the figures showing the family in a "classic" creche-like relationship to one another: the mother seated (as if on a chair, although the object is not shown), cradling the infant in her lap, and the father standing behind her, bending over her right shoulder to touch the infant's foot with his right hand.⁴

Shortly thereafter Reid asked Snyder if he knew of a black family who could pose as models, and Snyder promptly suggested a family living at CCNV's Washington shelter whose baby had recently been born there, inviting Reid to visit them and decide for himself. Reid did so, and rejected the adults, whose appearances he found inappropriate, but accepted the child. (He ultimately used Mr. Purtee and a female acquaintance as his adult models.) While in Washington Snyder took Reid on a brief tour of nearby steam grates to observe homeless people in their habitat, pointing out to him that they were wont to recline, rather than sit or stand, on the grates to warm their entire bodies, and from that time all Reid's representations of the proposed statue contemplated recumbent figures only.⁵

Throughout November and the first two weeks of December Reid worked long hours exclusively on the statue, assisted at various times by a dozen different people, all paid by him, from funds, however, provided by CCNV. (It is undisputed that CCNV paid Reid the full price of $15,000). From the time of his construction of the armature through the final clay rendering he was visited on a number of occasions by various CCNV members, ostensibly to check on his progress and to coordinate CCNV's construction of the base or pedestal. (In the meantime CCNV had ordered the special-effects equipment from sources in Hollywood at a cost of $7,000-$8,000.) On no occasion was the subject of copyright mentioned.

The clay model was ready for casting on or about December 12th, but the mold not yet made, when Snyder telephoned Reid to demand that the statue be delivered immediately or it would be excluded from the Pageant of Peace.⁶ Reid replied that it simply could not be done, and was then told by Snyder to take the time necessary to permit him to deliver a "first class work." He did so, and delivered the finished "Third World America" to the Ellipse himself on December 24, 1985, receiving a final payment of $3,000 from Snyder.⁷

The statue remained on display near the Ellipse for a month. In late January, 1986, CCNV members returned the statue to Reid's studio in Baltimore for repair of some minor damage done in its transit to the Ellipse. In mid-February, Snyder began making plans to take the statue on a tour of several cities and exhibit it at major galleries to raise money for the homeless. Reid came to Washington, accompanied by a lawyer, to protest that the Design Cast 62 material was not strong enough to withstand the rigors of travel and to urge CCNV to have the statue cast in bronze for about $35,000, or at least to have a "master mold" made, at a cost of $5,000, to permit a duplicate to be cast if the original were irreparably damaged. Snyder declined to expend any more of CCNV's money on the project, but invited Reid to do spend his own if he wished. Several weeks later Snyder called Reid to demand return of the statue, following...