Oliver v. Meow Wolf, Inc.

• Docket Number: Civ. 20-237 KK/SCY
• Decision Date: 03 August 2023
• Parties: LAUREN ADELE OLIVER, Plaintiff, v. MEOW WOLF, INC., et al., Defendants.
• Court: U.S. District Court — District of New Mexico

1

LAUREN ADELE OLIVER, Plaintiff, v. MEOW WOLF, INC., et al., Defendants.

Civ. No. 20-237 KK/SCY

United States District Court, D. New Mexico

August 3, 2023

MEMORANDUM OPINION AND ORDER

KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

THIS MATTER is before the Court on Defendants' Motion for Partial Summary Judgment Dismissing Plaintiff's Claim of Violation of the Visual Artist Rights Act (“Summary Judgment Motion”) (Doc. 372), filed April 27, 2022, as well as the following four ancillary motions: (1) Defendants' Unopposed Motion to File Exhibits Under Seal (Doc. 370) (“Motion to Seal Exhibit A”), filed April 27, 2022; (2) Defendants' Unopposed Motion to File Exhibit B Under Seal (Doc. 373) (“Motion to Seal Exhibit B”), filed April 27, 2022; (3) Defendants' Motion for In Camera Review (Doc. 375) (“Motion for Review”), filed April 27, 2022; and (4) Defendants' Motion for Leave to Supplement the Record with New Evidence Relevant to Defendants' Motion for Summary Judgment Dismissing Plaintiff's VARA Claim (Doc 500) (“Motion to Supplement”), filed September 21, 2022. The Court, having reviewed the parties' submissions, the record, and the relevant law, and being otherwise sufficiently advised, FINDS that all of the listed motions are well-taken and should be GRANTED, except for Defendants' Motion for Review, which is well-taken in part and should be GRANTED IN PART and DENIED IN PART.

I. Procedural History^[1]

The parties' disputes in this matter arise out of Plaintiff Lauren Oliver's installation of a work of visual art called Ice Station Quellette (“ISQ”) in an exhibition called the House of Eternal Return (“HoER”). (Docs. 148, 183.) Defendant Meow Wolf, Inc. (“MWI”) operates the HoER, and Defendant Vince Kadlubek was formerly the company's chief executive officer. (Id.; Doc. 348-3 at 2.) Plaintiff filed her original complaint against Defendants in March 2020, asserting claims for copyright infringement and violation of the Visual Artists Rights Act (“VARA”), 17 U.S.C. §§ 106A, 113(d), as well as several state law claims sounding in contract and tort. (Doc. 1.) In June 2021, Plaintiff amended her complaint, adding new factual allegations and new and modified state law claims. (Doc. 148.) Defendant MWI, in turn, filed a declaratory judgment counterclaim sounding in contract in July 2021. (Doc. 183.)

In her amended complaint, Plaintiff alleges that Defendants violated or threatened to violate her VARA rights in the following ways:

• Defendants used and copied ISQ without attribution “across multiple platforms,” including in advertisements, promotions, social media posts, a website, publications, and a documentary and associated trailer;

• Defendants “used [Plaintiff's] name and ISQ with the ‘Todos 7' collection of visual art, including Meow Wolf's ‘credits' web page indicating ISQ as being part of ‘Todos 7,'” even though Plaintiff specifically told them not to;

• Defendants “used ISQ elements ... such that the works were distorted, mutilated, or modified in a way prejudicial to [Plaintiff's] honor and reputation”; and,

• Defendants threatened to remove ISQ from the HoER even though “ISQ . ha[s] been incorporated in and made part of [the] HoER such that removing the works of visual art, or any part thereof, from [the] HoER would cause their destruction, distortion, mutilation, or modification.”

(Doc. 148 at 12-13, 18-19.) On these grounds, Plaintiff seeks damages and an injunction barring Defendants,

temporarily during the pendency of this action, and permanently thereafter, from: (a) taking any action to remove, alter, deface, modify, mutilate, or destroy ISQ at [the] HoER, or any element thereof, during [Plaintiff's] lifetime; and (b) using ISQ, or any element thereof ... without ... attribution to [Plaintiff].

(Id. at 25.)

On June 8, 2021, the parties entered into a Joint Stipulation Regarding Visual Artists Rights Act (Doc. 155), in which they stipulated that:

1. Defendant Meow Wolf provided a 90-day notice to Plaintiff Lauren Oliver under 17 USC 113(d)(2) [sic], but the parties dispute whether the artwork can be removed “without destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3).”

2. The parties expect the issue of whether or not the artwork can be removed without destruction, distortion, mutilation, or other modification as described in section 106A(a)(3) to be decided at trial.

3. Defendant Meow Wolf agrees not to remove the artwork until after final resolution of this litigation, including appeals.

4. If Plaintiff Lauren Oliver fails to prove that removal of the artwork will destroy, distort, mutilate, or modify the artwork as described in section 106A(a)(3), Plaintiff shall have thirty (30) days after final appeal, or the time for final appeal has expired, to remove the artwork at Plaintiff's own expense and with reasonable notice to and scheduling coordination with Meow Wolf.

5. Aside from the terms outlined above, both parties reserve all rights, claims and defenses.

(Id. at 1-2.)

On April 27, 2022, Defendants filed the Summary Judgment Motion at issue here, seeking summary judgment in their favor on Plaintiff's VARA claims. (Doc. 372.) Plaintiff responded in opposition to the motion on May 26, 2022, and Defendants replied in support of it on June 9, 2022. (Docs. 420, 437.)

Also on April 27, 2022, Defendants filed their Motion for Review, seeking a ruling that a letter from Plaintiff's counsel transmitting settlement proposals is admissible to support their Summary Judgment Motion. (Doc. 375.) Defendants filed a redacted version of this motion in the public record, (Doc. 374), and an unredacted version under seal. (Doc. 375.) Contemporaneously, Defendants filed the two unopposed Motions to Seal at issue here, seeking leave to file Exhibits A and B to the Motion for Review under seal.^[2] (Docs. 370, 373.) Plaintiff responded in opposition to the Motion for Review on May 17, 2022, and Defendants replied in support of it on June 1, 2022. (Docs. 408, 424.)

Finally, Defendants filed their Motion to Supplement on September 21, 2022, seeking leave to supplement the record in support of their Summary Judgment Motion with a recently disclosed text message written by Plaintiff. (Doc. 500.) Plaintiff responded in partial opposition to this motion on September 22, 2022, and Defendants replied in support of it on October 5, 2022. (Docs. 502, 507.)

II. Analysis

The Court will address Defendants' four ancillary motions before it turns to their Summary Judgment Motion, because the ancillary motions concern materials the Court has been asked to consider in ruling on the dispositive motion.

A. Defendants' Ancillary Motions

1. Defendants' Motion for Review

In their Motion for Review, Defendants seek in camera review of Plaintiff's counsel's November 22, 2019 letter (“November 2019 Letter” or “Letter”) transmitting three settlement proposals, and a ruling that the Letter is admissible under Federal Rule of Evidence 408 to support their Summary Judgment Motion. (Doc. 375.) Plaintiff does not oppose in camera review of the Letter but does contest its admissibility. (Doc. 395 at 1.)

Rule 408 bars the admission of certain types of evidence “either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction[.]” Fed.R.Evid. 408(a). Specifically, the rule bars the admission, for the listed purposes, of

[e]vidence of . furnishing, promising, or offering-or accepting, promising to accept, or offering to accept-a valuable consideration in compromising or attempting to compromise the claim[,] and ... conduct or a statement made during compromise negotiations about the claim[.]

Id. Courts may, however, admit such evidence “for another purpose[.]” Fed.R.Evid. 408(b).

In their Motion for Review, Defendants argue that the Court should review the November 2019 Letter in camera, rule that it is admissible “for the limited purpose of showing that [P]laintiff has conceded . [ISQ] is capable of being safely removed from . [the] HoER,” and consider it in deciding their Summary Judgment Motion. (Doc. 375 at 1-2.) The Court will grant Defendants' request for in camera review of the Letter, because Plaintiff does not oppose it and because such review is necessary to determine whether the Letter is admissible for the proffered purpose. However, the Court will deny the remainder of Defendants' Motion for Review, for the following reasons.

First and foremost, Rule 408 bars admission of the Letter for the proffered purpose. According to Defendants, the settlement proposals in the Letter do not encompass Plaintiff's VARA claims, because when the Letter was sent Plaintiff's draft complaint did not include them. (Doc. 375 at 3.) Thus, Defendants reason, Plaintiff's VARA claims are not among the “disputed claim[s]” about which her counsel was negotiating in the Letter, Fed.R.Evid. 408(a), and Rule 408 does not bar its admission to disprove them. (Id.)

The Court disagrees. The November 2019 Letter expressly references Plaintiff's “VARA rights” twice and threatens that if the parties are unable to resolve their disputes, Plaintiff will file suit, “add[] claims for VARA violations” to her draft complaint, and “seek[] attorneys' fees and statutory damages for VARA violations specifically.” (Doc. 375-1 at 6-8.) Thus, though merely threatened rather than actually filed, Plaintiff's VARA claims were plainly among the “disputed claim[s]” her counsel was offering to compromise in the Letter,^[3] and Rule 408 bars its admission to prove or disprove the validity of these claims. Fed.R.Evid. 408(a); see, e.g., E.E.O.C. v. Gear Petroleum, Inc., 948 F.2d 1542, 1545 (10th Cir. 1991) (district court did not err in applying Rule...