The Statute of Limitations Invoked to Dismiss Copyright Claims
On June 26, 2015, a decision of interest concerning the application of the statute of limitations and work made for hire doctrine in connection with copyright litigation was issued in the Southern District of New York. The case is Gideon Lewin vs. The Richard Avedon Foundation, docket No. 11-cv-8767 (KMW) (FM). The court dismissed the The Richard Avedon Foundation's (the Foundation) affirmative claims that photographs created by Lewin while he was acting as studio manager for Richard Avedon between 1965 and 1980 were works made for hire, since it waited too long to raise the defense. However, the work made for hire argument, ruled the court, is still available as an affirmative defense to Lewin's suit for declaratory judgment that he owns such copyrights. This article will discuss these aspects of the decision.
Disclaimer: I am counsel to the plaintiff, Gideon Lewin, in this action, which is ongoing.
Lewin had a special relationship with Avedon, which permitted him to take photographs on his own time and for his own clients, resulting in Lewin owning the copyright to such photographs (the Foundation claims such images are works made for hire.) In 2006, Lewin met with Norma Stevens, who was the executive director of the Foundation at that time, to discuss his plans to write a book about his years with Avedon. Lewin showed Stevens images that he created and that he owned. Stevens then sent an email to another director of the Foundation, which reported on this meeting. Stevens admitted in the email that Lewin had many pictures of Avedon working, and was preparing a "dignified" book. Stevens further wrote that she made it clear to Lewin that the Foundation couldn't prevent him from using his images.
Summary Judgment Motions
After discovery was closed, the parties each moved for summary judgment. The court granted that part of Lewin's motion seeking dismissal of the Foundation's affirmative copyright ownership claims to his photographic images. The court found that at some point during this meeting with Stevens, Lewin made "an expressed assertion of sole authorship and ownership sufficient to put a reasonably diligent plaintiff on inquiry as to the existence of a right." The court found that Stevens acknowledged not simply that Lewin possessed these photographs, but that the Foundation was unable to prevent him from publishing them in the book he was seeking to write. Thus, the court held, Stevens's email put the Foundation on notice as early as 2006 that Lewin was claiming copyright ownership over these photographs. This notice created in the Foundation a duty to investigate Lewin's copyright claims, and it was at this point that the statute of limitations accrued. Once a party is aware, or put on notice, as to the existence of such a right, the statute of limitations begins to run. Since the Foundation did not bring its affirmative claims until more than three years after this meeting, the Foundation's affirmative claims as to these images were dismissed.
The Foundation argued that Lewin did not, during his meeting with Stevens, state outright that he owned the copyrights, and therefore the Foundation was not on notice of such a claim. The court dismissed this argument, holding that an overt discussion of copyright was unnecessary, since the email makes clear that Stevens understood that Lewin believed he owned the copyrights to the photographs he had shown to her, and that this, in and of itself, is sufficient to constitute an "expressed assertion of adverse ownership."
Work for Hire as an Affirmative Defense
Although the Foundation's direct claims that it owns the copyright to Lewin's photographic images as works made for hire was dismissed, the court determined that the work made for hire defense is not barred by the statute of limitations when it is used solely as an affirmative defense against a copyright claim. Accordingly, although the Foundation may no longer claim it owns the copyright to these images, the Foundation can still raise it as an affirmative defense against Lewin's declaratory judgment action and argue that Lewin is not the copyright owner of the work he created.
Regardless of whether or not Lewin prevails in his declaratory judgment claim, the Foundation no longer has standing to prevent Lewin from using his photographs.
Current Status of the Case
Since the court denied summary judgment to both sides on issues other than the above relating to other aspects of the relationship between the parties, the case is ongoing. Time will tell what the outcome will be, but I recommend a reading of the court's decision for its analysis of the juxtaposition of work made for hire issues relating to the statute of limitations. Wood.Decision.SJ.6.26.15.pdf