Haberman v. Hustler Magazine, Inc.

• Decision Date: 02 January 1986
• Docket Number: Civ. A. No. 84-151-W.
• Parties: James D. HABERMAN, Plaintiff, v. HUSTLER MAGAZINE, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

626 F. Supp. 201

James D. HABERMAN, Plaintiff, v. HUSTLER MAGAZINE, INC., et al., Defendants.

Civ. A. No. 84-151-W.

United States District Court, D. Massachusetts.

January 2, 1986.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Herbert L. Gatewood, Marullo & Barnes, Boston, Mass., for plaintiff.

William H. Lee, Lee & Hollander, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

Plaintiff, James D. Haberman, initiated this action on January 19, 1984, seeking injunctive relief and damages for alleged copyright infringement in violation of 17 U.S.C. § 101 et seq. (1982) and for the alleged employment of unfair or deceptive acts or practices in violation of Mass.Gen. Laws ch. 93A (1984). The defendants are Hustler, Magazine, Inc. ("Hustler"), the publisher of Hustler magazine, and Flynt Distributing Co., Inc. ("FDC"). The case was tried to the court on the issue of liability.

For the reasons discussed below, the court has determined that defendants did not infringe plaintiff's copyright under federal law and that no violation of ch. 93A has been established.

I. FINDINGS OF FACT

The court hereby finds the facts of this case as follows:

Plaintiff James D. Haberman is an artist and photographer who creates and photographs assemblies and sculpted works of art. Haberman also teaches photography at the New England School of Art and Design and has conducted workshops and given lectures on photography in the Boston area. Haberman is a resident of Massachusetts.

Defendants are Hustler Magazine, Inc., a California corporation located in Los Angeles, California which publishes Hustler magazine, and Flynt Distributing Co., a corporation responsible for the distribution of Hustler magazine. Both Hustler and FDC are wholly-owned subsidiaries of Larry Flynt Publications, Inc. ("LFP").

Haberman markets his photographs as fine art photographs and postcards. He also licenses publication rights in his works. Haberman promotes sales of his fine art photographs through his postcards and through exhibitions at galleries and museums.

The sale of Haberman's works in postcard form was begun in Fall, 1980. Haberman distributes postcards himself in the Boston area. Since March, 1981, other distribution has been handled primarily by an international distributor in New York, Fotofolio, Inc. Approximately ninety percent of Haberman's postcard sales are made through Fotofolio. In 1981, Haberman had eight cards for sale. He has introduced approximately five cards a year since then, and now has twenty-seven for sale through Fotofolio.

In Fall, 1981, Haberman created a work entitled "Cracking Eggs" by first making an "assembly" and then photographing it. "Cracking Eggs" was first published on March 8, 1982. Haberman created "The Feast" beginning on January 3, 1982, and completed it on April 28, 1982. He first created a sculpture and then photographed it. "The Feast" was first published on September 16, 1982.

"Cracking Eggs" is a surrealistic fine art photograph, the purpose of which is to surprise or shock the viewer by presenting a new perspective. (A copy of the "Cracking Eggs" postcard is Exhibit A hereto.) "The Feast" is a surrealistic fine art photograph intended as a satiric social commentary on the traditional family holiday gathering. (A copy of "The Feast" postcard is Exhibit B hereto.)

Haberman's copyright in "Cracking Eggs" is registered with the United States Copyright Office. He is the owner of United States Certificate of Copyright Registration No. VA 123-379 for the photographic work "Cracking Eggs." The effective date of registration is February 22, 1983.

The copyright in "The Feast" is also registered with the United States Copyright Office. Haberman is the owner of United States Certificate of Copyright Registration No. VA-134-035 for the photographic work "The Feast." The effective date of registration is February 22, 1983.

Hustler is a commercial magazine directed at what it calls the "men's sophisticate" market. The issues of Hustler involved in this case contain sexually explicit photographs and text. Hustler is marketed nationwide, including in Massachusetts. It derives more than twenty percent (20%) of its gross revenues from interstate commerce outside of Massachusetts.

In its February, 1983 issue Hustler reproduced "Cracking Eggs" in the "Bits and Pieces" section of the magazine. The copy was approximately one-twentieth of a page in size, or one-fifth the size of the postcard. The reproduction included substantially the entire photograph, slightly cropped. The photograph was captioned ""It's No Yolk!" and was accompanied by eight lines of text. The text accompanying "Cracking Eggs" in the February, 1983 issue of Hustler reads:

Frankly, we're confused by this postcard from Jim Haberman Cards (15 Cleveland Street, Arlington, MA 02174). But we're also intrigued by its visual impact. See if you can unscramble the picture's message. Our eyes are beat.

In its August, 1983 issue, Hustler reproduced "The Feast" in the "Bits and Pieces" section of the magazine. "The Feast" was reproduced in full, but reduced in size. The reproduction, occupying approximately one-sixth of a page, was accompanied by the caption "Family Portrait" and thirteen lines of text. The text accompanying "The Feast" in the August, 1983 issue of Hustler reads:

We've heard of families that have too many mouths to feed ... but just mouths? This bizarre scene is the work of Jim Haberman, who not only photographed and sculptured these toothy creatures, but also sells the postcards (Jim Haberman Cards, 15 Cleveland St., Arlington, MA 02174). Alien beings may have one tradition in common with us here on Earth: brushing after every meal.

Hustler published a copyright notice beside "Cracking Eggs" in the February, 1983 issue of Hustler, stating "Copyright (c) Jim Haberman 1982." Hustler published a copyright notice beside the reproduction of "The Feast", in the August, 1983 issue, stating "Copyright (c) Jim Haberman."

Hustler's publication of "Cracking Eggs" and "The Feast" was without Haberman's consent. Haberman did not submit his works for publication in Hustler. Hustler has not paid Haberman for the use of his works.

Since February, 1984, Haberman has had a nonexclusive agreement with the Picture Cube, Inc., a stock photo agency in Boston, Mass., for the licensing of reproduction rights in his works. The Picture Cube has several dozen of his photographs in its files, including the "Silver Fantasy" series, which includes "Cracking Eggs" and "The Feast."

Haberman has sold 7,000 postcards of "Cracking Eggs" and 24,000 postcards of "The Feast". "The Feast" is Haberman's best-selling postcard. "Cracking Eggs" ranks sixth or seventh.

From August, 1982, when it was first published, until August 1983, Haberman sold 5,200 cards of "The Feast." In the six months following its reproduction in Hustler, Haberman sold 5,400 cards. Haberman sold 1,600 cards of "Cracking Eggs" from March, 1982, until February, 1983. In the five months following its publication in Hustler, he sold 2,250 cards of "Cracking Eggs."

Haberman sold two copies of the fine art photograph "The Feast" in February and March of 1983 for $160.00 each. He has not sold any copies of the photograph "Cracking Eggs."

Haberman has also sold reproduction rights in "The Feast" on two occasions. In February, 1983, he sold rights for a one-time use as a bookcover for $150.00. "The Feast" was recently licensed to appear in the November, 1985 issue of Darkroom Photography, which purchased a one-time right for $180.00. Haberman has sold reproduction rights in other works on two occasions, for $225.00 and $160.00, respectively.

Haberman exhibited both "Cracking Eggs" and "The Feast" at the University of Wisconsin in 1982. "Cracking Eggs" was exhibited in the winter of 1983 at Framingham State College. "The Feast" was exhibited at Vision Gallery in the summer of 1984 and at Project Arts Gallery, Cambridge, and at a faculty show at the New England School of Art and Design in the fall of 1984. Haberman has exhibitions, including "Cracking Eggs" and "The Feast," scheduled for 1986 at the DeCordova Museum in Lincoln, Massachusetts, and in Canton, Massachusetts.

Haberman was awarded an Artist's Foundation Grant in 1979. He submitted works, including "Cracking Eggs" and "The Feast," to the Artist's Foundation contest in 1983 and has submitted works every year since then. In 1983, after publication of "Cracking Eggs" in Hustler, he received honorable mention in the contest.

The Picture Cube has sent out "Cracking Eggs" and "The Feast" on consignment to publishers six times each. Four of the consignments were sent out after the agency learned of the prior publication in Hustler of "Cracking Eggs" and "The Feast." In addition, clients have examined the photographs at the agency.

The Picture Cube has sold no reproduction rights in "Cracking Eggs" or "The Feast".

Haberman's total revenues from "Cracking Eggs" are $793.38. After deducting costs of development, the net loss from "Cracking Eggs" is $744.00. Haberman's total revenues from "The Feast," including sales of art photographs, postcards, and reproduction rights, are $2,835.00. After deducting costs of development, the net loss from "The Feast" is $2,282.

Haberman did not suffer any actual damages from lost sales of postcards, photographs or reproduction rights as a result of the reproduction of "Cracking Eggs" and "The Feast" in Hustler. There were no instances in which Haberman's ability to exploit those works commercially had been damaged as a result of their reproduction in Hustler.

Haberman did not incur any monetary loss or damage to property as a result of the reproduction of "Cracking Eggs" and "The Feast" in Hustler.

There were no instances in which knowledge of the publication in Hustler on the part of customers, galleries or foundations affected the reception or sale of "Cracking Eggs" or "The...