Wojnarowicz v. American Family Ass'n
| Decision Date | 08 August 1990 |
| Docket Number | No. 90 Civ. 3457 (WCC).,90 Civ. 3457 (WCC). |
| Citation | 745 F. Supp. 130 |
| Parties | David WOJNAROWICZ, Plaintiff, v. AMERICAN FAMILY ASSOCIATION and Donald E. Wildmon, Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Kathryn L. Barrett, Jonathan A. Olsoff, Jonathan M. Gutoff, Peter Weiss, David Cole, Center For Constitutional Rights, New York City, for plaintiff.
Lane & Mittendorf, New York City (Thomas A. Harnett, of counsel), Benjamin W. Bull, Phoenix, Ariz., Peggy Coleman, American Family Ass'n, Tupelo, Miss., Larry L. Crain, Ames, Southwort & Crain, Brentwood, Tenn., Joseph Secola, Law Offices of Vincent McCarthy, New Milford, Conn., for defendants.
Multimedia artist David Wojnarowicz brings this action to enjoin the publication of a pamphlet by defendants American Family Association ("AFA") and Donald E. Wildmon, Executive Director of AFA, and for damages based upon claims of copyright infringement, defamation, and violations of the Lanham Act and the New York Artists' Authorship Rights Act. During the week before trial, defendants moved to dismiss the action or transfer it to the District of Mississippi on the grounds of lack of personal jurisdiction over defendants and improper venue. At the commencement of the trial on June 25, 1990, the Court denied these motions in an oral ruling from the bench, reserving the right to file a supplemental written opinion.
The expedited non-jury trial merged the evidentiary hearing on plaintiff's motion for preliminary injunction with the trial on the merits pursuant to Rule 65(a)(2), Fed.R. Civ.P. Three witnesses testified at trial: plaintiff, defendant Wildmon and Philip Yenawine, an expert on contemporary art. Having heard and considered the evidence presented at trial, the Court granted plaintiff's motion for a preliminary injunction by an Opinion and Order dated June 28, 1990. Plaintiff also seeks a permanent injunction to halt defendants' distribution of the allegedly violative material, a mandatory injunction requiring defendants to correct their alleged misrepresentations and an award of money damages. Having reviewed the record and considered counsels' post-trial briefs, the Court concludes that plaintiff is entitled to judgment for defendants' violation of New York's Artists' Authorship Rights Act, but plaintiff's claims for copyright infringement, violation of the Lanham Act and defamation must be dismissed. This opinion incorporates the Court's findings of fact and conclusions of law pursuant to Rules 52(a) and 65(d), Fed.R.Civ.P.
Defendant AFA, formerly known as the National Federation For Decency, was founded in 1977 as a not-for-profit corporation by Donald E. Wildmon. Incorporated under the laws of the state of Mississippi, and headquartered in Tupelo, Mississippi, the AFA has over 60,000 members and approximately 500 local chapters nationwide, including a number in the state of New York. It is chartered for the declared purposes, inter alia, of promoting decency in the American society and advancing the Judeo-Christian ethic in America. Defendant Donald E. Wildmon, Executive Director of the AFA, is a citizen of the United States, residing in Tupelo, Mississippi. Since May 1989, the AFA has been actively campaigning against what it characterizes as the subsidization of "offensive" and "blasphemous" art by the National Endowment for the Arts (the "NEA"). Through contributions, it raised $5.2 million dollars in 1989.
Plaintiff, a citizen of the United States, residing in New York, New York, is a multi-media artist, whose work includes paintings, photographs, collages, sculptures, installations, video tapes, films, essays and public performances. A professional artist, plaintiff earns his living by selling his art works, many of which are assertedly directed at bringing attention to the devastation wrought upon the homosexual community by the AIDS epidemic. Plaintiff attempts through his work to expose what he views as the failure of the United States government and public to confront the AIDS epidemic in any meaningful way. To this end, plaintiff's art at times incorporates sexually explicit images for the avowed purpose of shaping community attitudes towards sexuality. As a result, his works have been the subject of controversy and public debate concerning government funding of non-traditional art.
Plaintiff's art works frequently employ groupings of images which are assertedly intended to convey composite messages. The works have received a measure of critical acclaim and have been featured in a number of museum and gallery exhibitions. Plaintiff earned approximately $15,000 from the sale of his art works in 1988, approximately $34,000 in 1989 and $17,000 to date this year.
From January 23, 1990 through March 4, 1990, the University Galleries at Illinois State University, Normal, Illinois, presented a comprehensive exhibition of plaintiff's work, entitled "Tongues of Flame" (the "exhibit"), and published a 128-page catalog (the "catalog") which contained reproductions of over sixty of plaintiff's works, as well as essays by plaintiff and others. The NEA awarded the University Galleries $15,000 to help pay for the exhibit and the catalog.
Plaintiff is the owner of the copyrights to all of the works displayed in the exhibit and of all of the reproductions of his work that appear in the catalog. The copyrights of the following works were duly registered by plaintiff in the United States Copyright Office on May 11, 1990:
ITSOFOMO Reg. No. 392,862
Rimbaud Series Reg. No. 392,863
Water Reg. No. 392,864
Delta Towels Reg. No. 392,865
Bad Moon Rising Reg. No. 392,866
Untitled (Genet) Reg. No. 392,867
Sex Series Reg. No. 392,868
On or about April 12, 1990, the AFA and Wildmon published and distributed throughout the United States, including the Southern District of New York, the AFA pamphlet (the "pamphlet") in an effort to stop public funding by the NEA of art works such as plaintiff's. The pamphlet was mailed to 523 members of Congress, 3,230 Christian leaders, 947 Christian radio stations and 1,578 newspapers, at least twenty-eight of which were located in this district. Without plaintiff's authorization, Wildmon photographically copied fourteen fragments of plaintiff's works which he believed most offensive to the public and reproduced these fragments in the AFA pamphlet. These fourteen images, with three exceptions, explicitly depict sexual acts. The other three images portray Christ with a hypodermic needle inserted in his arm, and two ambiguous scenes which plaintiff represents as respectively depicting an African purification ritual and two men dancing together.
Wildmon wrote the text of the pamphlet, which is entitled "Your Tax Dollars Helped Pay For These `Works of Art.'" It states in the introductory sentence that "the photographs appearing on this sheet were part of the David Wajnarowicz sic `Tongues of Flame' exhibit catalog." The envelope in which the AFA pamphlet was mailed states that the "photos enclosed in this envelope were taken from the catalog of the `Tongues of Flame' exhibit" and is marked "Caution — Contains Extremely Offensive Material."
As stated in the Court's oral ruling from the bench at the start of the trial, jurisdiction and venue are proper in this Court pursuant to 28 U.S.C. §§ 1331, 1332, 1338, 1391 and 1400 in light of defendants' publication and distribution of the AFA pamphlet in this district. Personal jurisdiction over defendants is proper under New York's Civil Practice Law and Rules § 302(a)(2). Wildmon's claim that plaintiff has failed to state any claim against him personally, as distinguished from his capacity as Executive Director of the AFA, is rejected. Wildmon may be held personally liable because plaintiff has proved through the testimony of Wildmon himself that he was personally responsible for the alleged violations. See Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (); Davidson v. Vohann of California, Inc., 1988 WL 96016, 1988 U.S. Dist. LEXIS 9394 at 3 (S.D.N.Y. Aug. 22, 1988) (); Lottie Joplin Thomas Trust v. Crown Publishers, 456 F.Supp. 531, 537 (1977), aff'd, 592 F.2d 651 (2d Cir.1978) ().
New York's Artists' Authorship Rights Act, N.Y. Cultural Affairs Law Section 14.03 (McKinney's Supp.1990), provides, in relevant part, that:
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