Greenland v. Twin Vision Graphics, Inc.
| Decision Date | 26 June 2003 |
| Docket Number | Civ. No. 98-2802(HAA). |
| Citation | 268 F.Supp.2d 358 |
| Parties | David GREENFIELD and The Photographers, Inc., Plaintiffs, v. TWIN VISION GRAPHICS, INC. a/k/a Twin Vision, Inc., Defendant. David Greenfield and The Photographers, Inc., Plaintiffs, v. The Matzel & Mumford Organization, Inc., Defendant. |
| Court | U.S. District Court — District of New Jersey |
Gil D. Messina, Cassidy Messina & Laffey, P.C., Holmdel, NJ, for Plaintiff.
John F. Whiteaker, Jennifer R. Adler, McElroy, NJ, for Defendant's Twin Vision, Inc., Frank Rod, carol Rod, John Rod and Norma Rod.
Thomas Daniel McCloskey, Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, LLP, Woodbridge, NJ, for defendants the Matzel and Mumford organization, Inc.
This matter comes before the Court on motions for summary judgement by Plaintiffs David Greenfield ("greenfield") and the Photographs, Inc. ("TPI") (collectively, "Plaintiffs")' a motion for summary judgment by defendant Twin Vision Graphics, Inc. ("TVG"); and a motion to dismiss by Defendant that Matzel and Mumford Organization, Inc. ("M & M"). For the reasons outlir.ed below, Plaintiffs' GRANTED IN PART and DENIED IN PART; TVG's motion is GRANTED IN PART and DENIED IN PART; and M & M's motion is DENIED.
Although many important facts are disputed, the parties appear to agree upon the following: Plaintiff David Greenfield is a professional photographer who, at all times relevant to this action, was employed by Plaintiff TPI. Second Amended Complaint Against TVG (hereinafter "TVG Complaint"), ¶ 7. TPI is authorized to market and sell Greenfield's services as a commercial photographer and to license the use of Greenfield's original photographs to others. Complaint, ¶ 8.
Plaintiffs began supplying Greenfield's photographs to Defendant TVG in 1990. Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Partial Summary Judgment ("Plaintiffs' Facts"), ¶ 4. TVG designs and builds displays for on-site sales centers of residential building developers. Statement of Undisputed Material Facts ("TVG's Facts"), ¶ 1. TVG used Greenfield's photographs as part of these displays at various sales centers. TVG's Facts, ¶ 5.
Defendant M & M was one of TVG's clients, and is engaged in the development and construction of high-end, single-family homes. In the fall of 1990, John Rod, the Vice President and Director of Marketing for TVG, introduced Greenfield to Ken Bertch, the Director of Marketing for M & M. Plaintiffs' Facts, ¶ 6; M & M's Statement of Undisputed Material Facts in Opposition to Plaintiffs' Motion for Summary Judgment ("M & M's Facts"), ¶ 1. Although TVG facilitated the relationship between Greenfield and M & M, TVG never assigned Greenfield to take photographs for M & M. TVG's Facts, ¶ 57. Instead, shortly after Bertch met Greenfield, M & M began procuring Greenfield's photography services directly through TPI. Id., ¶ 56. By all accounts, Greenfield maintained a good working relationship with both TVG and M & M for several years.
Over the course of their relationship, TVG and TPI engaged in numerous transactions for the use of Greenfield's photographs. In at least some of these transactions, TVG submitted a written purchase order form, while for other transactions TVG would request photographs orally. Affidavit of John F. Whitteaker ("Whitteaker Aff") Ex. 8, Deposition of David Greenfield ("Greenfield Dep."), 96:17-23.1 Greenfield would usually personally deliver TPI invoices to his customers along with the requested photographs. Greenfield Aff., ¶ 9.2 During the course of TPI's dealings with TVG, Greenfield tendered approximately 130 invoices to TVG. One hundred of these invoices were signed by John Rod, Carol Rod or Frank Rod, each of whom is a principal of TVG.3 Greenfield Aff., ¶ 17.
Each invoice describes the price, quantity, and type of photograph purchased, and describes the purpose for which the photographs will be used. Each invoice also states that "the terms and conditions on the reverse side apply unless specifically stated otherwise." Whitteaker Aff., Ex. 16; Greenfield Aff., Ex. A. The reverse side of each invoice lists a number of terms and conditions:
(2) Except as otherwise specifically provided herein, all photographs and rights therein, including copyright, remain the sole and exclusive property of Photographer. Any additional uses require the prior written agreement of Photographer on terms to be negotiated. Unless otherwise provided herein, any grant of rights is limited to one (1) year from the date hereof for the territory of the United States.
(3) Client assumes insurer's liability (a) to indemnify photographer for loss, damage, or misuse of any photograph(s) and (b) to return all photographs prepaid and fully insured ...
...................
(6) Photographer's copyright notice "@ (year as marked on photo) DAVID GREENFIELD" must accompany each use as an adjacent credit line. Invoice amount will be tripled if said credit is not provided.
...................
(8) Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the use of any photograph(s) for which no release was furnished by the photographer, or any photographs which are altered by Client. Unless furnished no release exists ...
(9) ... Client and its principals, employees, agents and affiliates, are jointly and severally liable for the performance of all payments and other obligations hereunder. No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. This agreement incorporates by reference Article 2 of the Uniform Commercial Code, and the Copyright Act of 1976, as amended.
(10) Except as provided in (11) below, any dispute regarding this agreement shall be arbitrated in Monmouth County, New Jersey, under rules of the American Arbitration Association and the laws of New Jersey ...
(11) Client hereby consents to the jurisdiction of the Federal courts with respect to claims by photographer under the Copyright Act of 1976, as amended.
(12) All Photographs supplied by the Photographers, Inc. are copyrighted by the Photographer according to the provisions of the U.S. Copyright Act of 1976 (Title 17 of the United States Code); and the Bern Convention.
Whitteaker Aff., Ex. 16; Greenfield Aff., Ex. A.
In February 1994, TVG hired Greenfield to provide eighteen photographs for the Whittingham development, a project built by U.S. Homes, one of TVG's clients. Greenfield provided the photographs, for which John Rod signed an invoice dated February 21, 1994. The invoice for these photographs provides, Whitteaker, Aff., Ex. 16; Greenfield Aff, Ex. I. The invoice included the terms and conditions quoted above, and was signed by Carol Rod. Id. TVG purchased an additional 16 enlargements for the Whittingham project, under the same terms, by an invoice dated March 11, 1994. Carol Rod signed the invoice for these photographs as well. Greenfield Aff., Ex. K.
Similarly, in 1996, TVG hired Greenfield to provide six photographs for the Vineyards development, a project built by Vintage Builders, another of TVG's clients. Greenfield provided the photographs, and John Rod signed an invoice dated April 3, 1996, for the amount of $1,719.00. Greenfield Aff, Ex. A. The invoice provides "[l]easing of 6 stock photo images ... [f]or use only in Sales Center display by Vintage Communities, Inc., at the Vineyards in Diamond Ridge, Jackson, NJ." Id. As with the Whittingham project, the invoice included the terms and conditions quoted above.
Things began to go sour on April 11, 1996. On that date, John Rod initiated a conference call with Greenfield and M & M's advertising agent. During the call, Rod mentioned that TVG possessed negatives of photographs of an M & M design center taken by Greenfield. "TVG's Facts, ¶ 61; Greenfield Aff", ¶ 21. Greenfield expressed surprise and disapproval of TVG's possession of these negatives. I...
To continue reading
Request your trial
-
Gosden v. ErazorBits, Inc.
...and rent, and to pay for merchandise ordered and received do not state claims which in any way involve injury to the service mark”), with Greenfieldv. Twin Vision Graphics, Inc., 268 358, 370-71 (D.N.J. 2003) (permitting copyright and Lanham Act claims to proceed where plaintiffs “explicitl......
-
Internet Prods. v. LLJ Enters.
...at *4 (D.N.J. Oct. 2, 2017). However, Defendants may renew these arguments at the summary judgment phase. Greenfield v. Twin Vision Graphics, Inc., 268 F. Supp. 2d 358 (D.N.J. 2003). In sum, the Court finds that Plaintiff has adequately pleaded a claim for copyright infringement. Accordingl......
-
Marimar Textiles, Inc. v. Jude Clothing & Accessories Corp.
...fees, without prejudice, withthe right to re-raise same at the summary judgment phase, consistent with Greenfield v. Twin Vision Graphics, Inc., 268 F. Supp. 2d 358 (D.N.J. 2003). B. Count II - Breach of Implied Contract/Quasi-Contract To recover on the theory of quasi-contract, a plaintiff......
-
Journal of African Civilizations Ltd. v. Transaction Publishers
...277, 291 (3d Cir. 1991)). Not all cases involving copyrights give rise to copyright infringement claims. Greenfield v. Twin Vision Graphics, Inc., 268 F. Supp. 2d 358, 368 (D.N.J. 2003) (noting that "the line between cases that 'arise under' the copyright laws, as contemplated by § 1338(a),......