By Thomas K. Lauletta, J.D.
An artist’s suit against a German art collector for copyright infringement, based on the display and attempted sale of an allegedly unauthorized copy of artist’s sculpture, was not actionable because all the alleged acts of infringement occurred in Germany, not the United States.
The federal district court in New York City has dismissed a complaint filed by artist Cady Noland against Wilhelm Schurmann, a German art collector, who had purchased her Log Cabin sculpture and displayed it in Germany for several years before attempting to sell to an American buyer. While it was displayed in a German museum for 10 years, Schurmann (with Noland’s consent) stained the wood a darker color. Later, due to damage to the sculpture caused by its display outside, Schurmann replaced all the sculpture’s wooden parts with wood shipped from Montana. Noting that the U.S. Copyright Act does not have extraterritorial application and concluding that none of the alleged acts of infringement happened within the U.S., the court rejected Noland’s contentions based on the Copyright Act (Noland v. Galerie Michael Janssen, March 8, 2019, Oetken, J.).
While the U.S. Copyright Act does not generally have extraterritorial application, the court said that an exception applied if a foreign infringer committed a domestic predicate act that was itself an act in violation of the U.S. copyright laws. Noland argued two possible predicate acts of Schurmann: (1) his purchase of wood in the United States to refurbish the artwork, and (2) his attempted sale of the artwork to an American buyer pursuant to a contract calling for delivery of the work to a location in the United States. (This attempted sale was never consummated.)
The court rejected the first of these contentions. While it might be argued that the use of the American-sourced wood to refurbish the artwork constituted a predicate act that would trigger the application of U.S. copyright law, the act of buying the wood itself clearly was not an act of copyright infringement.
The court also rejected Noland’s arguments for application of the U.S. Copyright Act based on the attempted sale of the work, noting that her complaint did not allege any activities by Schurmann in the United States. Nor did she allege that the infringing artwork was delivered in the United States.
An interesting allegation centered around a term in the contract for sale with the American buyer, which included a New York choice-of-law provision and that called for eventual delivery of the artwork in the United States. The court noted that there is now "a developing doctrine in the copyright law" (not yet addressed by the Second Circuit), regarding whether an unconsummated offer to distribute a copy of an artwork for sale can by itself constitute a distribution of an unauthorized copy that violates §106(3) of the copyright act. However, the court declined to rule on this issue because Noland had not alleged that any conduct relating to the offered sale of the artwork occurred within the United States.
Because the court dismissed Noland’s domestic copyright claims, it lastly considered her claims that were based on alleged violations of the German Copyright Act and negligence claims under New York and German law. Here, the court, having original jurisdiction over the original claim, also had supplemental jurisdiction over remaining additional claims. However, citing 28 U.S.C. §1367(c)(3), the court declined in its discretion to exercise supplemental jurisdiction over the German copyright claims and the negligence claim.
This case is No. 1:17-cv-05452-JPO.
Attorneys: Andrew D. Epstein (Baker Epstein & Loscocco) for Cady Noland. William Laurence Charron (Pryor Cashman LLP) for Galerie Michael Janssen and Michael Janssen.
Companies: Galerie Michael Janssen
MainStory: TopStory Copyright NewYorkNews
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