Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE).

• Court: U.S. District Court — Southern District of New York
• Citation: Carter v. Helmsley-Spear, Inc., 852 F.Supp. 228 (S.D. N.Y. 1994)
• Decision Date: 18 May 1994
• Docket Number: No. 94 Civ. 2922 (DNE).,94 Civ. 2922 (DNE).
• Parties: John CARTER, John Swing and John Veronis, Plaintiffs, v. HELMSLEY-SPEAR, INC. and 474431 Associates, Defendants.

852 F. Supp. 228

John CARTER, John Swing and John Veronis, Plaintiffs, v. HELMSLEY-SPEAR, INC. and 474431 Associates, Defendants.

No. 94 Civ. 2922 (DNE).

United States District Court, S.D. New York.

May 18, 1994.

Richard A. Altman, New York City, for plaintiffs.

Davidoff & Malito, New York City (Matthew Feigenbaum, Robert C. Boneberg, Adrian Zuckerman, Jill Rosenthal, John Harris, of counsel), for defendants.

OPINION & ORDER

EDELSTEIN, District Judge:

Plaintiffs bring this action pursuant to the Visual Artists Rights Act of 1990, 17 U.S.C. § 101 et seq. ("VARA"). Plaintiffs' complaint also raises several supplemental state law claims. On or around April 21, 1994, plaintiffs brought an order to show cause seeking a temporary restraining order to, among other things, prevent defendants from taking any action to alter, deface, modify, or mutilate plaintiffs' sculptures and installations located at 47-44 31st Street, Queens, New York.

On April 25, 1994, this Court, sitting in Part 1, heard argument from both plaintiffs and defendants regarding plaintiffs' application for a temporary restraining order.¹ On April 26, 1994, this Court issued a temporary restraining order enjoining defendants from (a) taking any action to alter, deface, modify, or mutilate plaintiffs' sculptures and installations located at 47-44 31st Street, Queens, New York; and (b) denying plaintiffs access to 47-44 31st Street, Queens, New York Monday through Friday, from 12:00 p.m. to 5:00 p.m.²

On May 5, 1994, this Court commenced a hearing ("the hearing") on plaintiffs' motion for a preliminary injunction ("Plaintiffs' Motion") pursuant to Federal Rule of Civil Procedure ("Rule") 65. Plaintiffs' Motion seeks an order enjoining defendants, during the pendency of this action, from "(a) taking any action to alter, deface, modify or mutilate plaintiffs' sculptures and installation located at 47-44 31st Street, Queens, New York hereinafter "plaintiffs' first request for relief"; (b) taking any action to breach the agreements heretofore entered into between plaintiffs, Sig Management Company and 47-44 31st Association, L.P. hereinafter "plaintiffs' second request for relief"; and (c) denying plaintiffs, their employees and invitees such access to the Property as had been enjoyed by them heretofore hereinafter "plaintiffs' third request for relief"."

In the course of the hearing, which commenced on May 5, 1994 and continued through May 13, 1994, this Court heard oral argument and received documentary evidence on Plaintiffs' Motion. In addition, plaintiffs and defendants called both expert and fact witnesses. The findings contained herein are based on the testimony, evidence, and arguments presented at the hearing and on the parties' moving and opposition papers.

For the reasons discussed below, Plaintiffs' Motion is granted in part and denied in part.

BACKGROUND

Plaintiff John Meade Swing is a sculptor and an artist who has held public exhibits of his original works of art since 1984. (Tr.³, at 18-19). Mr. Swing is also licensed by the City of New York as a structural steel welder. (Tr., at 21). Plaintiff John James Veronis, Jr. is an artist and a sculptor who supports himself through his artistic endeavors. (Tr., at 30). Plaintiff John Francis Carter also is an artist and sculptor. (Tr., at 37, 39). Plaintiffs work as partners to create sculptures and other works of visual art. Collectively, plaintiffs are known as the "Three-Js," or "J × 3." (Tr., 60).

By an agreement dated December 16, 1991 ("the Contract"), plaintiffs contracted with Sig Management Company ("Sig") "to design, create and install sculpture and other permanent installations" in the lobby of a building located at 47-44 31st Street, Queens, New York ("the Lobby"). (Ps-Ex.⁴ 1). Under the terms of the Contract, Sig granted plaintiffs "full authority in design, color and style" of the art work to be installed, but retained the authority to direct the location of the installations. The Contract provides that plaintiffs are entitled to "receive design credit" for their sculptures and installations ("the Work") and own the copyright to the Work. Sig was to receive fifty percent of any proceeds earned from the exploitation of this copyright. On or around January 20, 1993, Sig and plaintiffs signed an agreement ("Extension Contract") that extended the duration of Contract, without material alteration, for an additional year. (Ps-Ex. 2). Until April of this year, the terms of these agreements were adhered to by plaintiffs, Sig, and successor partnerships that held the net lease to 47-44 31st Street, Queens, New York ("the Property").

From December 1991 until July or August 1993, plaintiffs were each paid $1,000 weekly by Sig Management. (Tr., at 27). From July or August 1993, until about April 6, 1994, plaintiffs were paid $1,000 weekly by a successor partnership to Sig. (Tr., at 28). Throughout this period, plaintiffs worked continually on the Work. (Tr., at 34).

DISCUSSION

It is well settled in this Circuit that, in order to be entitled to a preliminary injunction, the moving party must show (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the movant. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979); see JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.1990) (per curiam). "Irreparable injury is one that cannot be addressed through a monetary award. Where money damages are adequate compensation a preliminary injunction should not issue." JSG Trading Corp., 917 F.2d at 79; see Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 974-75 (2d Cir. 1989). Irreparable harm, however, generally is presumed in the copyright context when the movant establishes a prima facie case of copyright infringement. See, e.g., Bourne Co. v. Tower Records, Inc., 976 F.2d 99, 101 (2d Cir.1992); Video Trip Corp. v. Lightning Video, Inc., 866 F.2d 50, 51-52 (2d Cir.1989).

The keystone of plaintiffs' claims is the Visual Artists Rights Act of 1990, 17 U.S.C. § 101 et seq. Title 17, United States Code, section 106A(a)(3) provides that the author of a work of visual art,

subject to the limitations set forth in section 113(d), shall have the right —

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

A "work of visual art" is defined to include paintings, drawings, prints, and sculptures, existing in a single copy or in a limited edition. 17 U.S.C. § 101. Works made for hire are specifically excluded from this definition. Id. The rights delineated in section 106A(a)(3) subsist for the life of the last surviving author of a work created by more than one artist. 17 U.S.C. § 106A(d)(3).

The "limitations set forth in section 113(d)," which are referenced in section 106A(a)(3), are as follows:

(d)(1) In a case in which —

(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and

(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,

then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.

(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106A(a) shall apply unless —

(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or

(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.

1. PLAINTIFFS HAVE SHOWN THAT THEY WILL SUFFER IRREPARABLE HARM IF THE WORK IS ALTERED, DEFACED, MODIFIED, OR MUTILATED DURING THE PENDENCY OF THIS ACTION OR IF PLAINTIFFS AND THEIR INVITEES ARE DENIED ACCESS TO THE LOBBY

In order to be entitled to preliminary injunctive relief, plaintiffs first must show that they will suffer irreparable harm if a preliminary injunction is not granted. Irreparable harm generally is presumed in the copyright context when the movant establishes a prima facie case of copyright infringement. See, e.g., Bourne Co., 976 F.2d at 101; Video Trip Corp., 866 F.2d at 51-52. VARA is an amendment to Title 17, the United States Copyright Act. Plaintiffs have demonstrated that, by contract, they own the copyright to the Work. Defendants have stated their intention to remove or materially alter the Work. As such, plaintiffs are, arguably, entitled to the presumption of irreparable harm generally available in cases of copyright infringement.

Even assuming, arguendo, that the presumption of irreparable harm does not apply to claims brought pursuant to VARA, plaintiffs have established that they will suffer...