A federal judge has granted New York University’s (NYU) motion for summary judgment in a case in which the school was sued for copyright infringement by an artist who alleged that the NYU athletic department used her drawing of a cougar on various items without her consent.
In so ruling, the court found that the defendant “met its burden of showing that Orion (the cougar) is a ‘work made for hire’ under the Copyright Act, and therefore that the defendant is properly considered the ‘author’ of Orion.”
Plaintiff Ariel Fleurimond’s lawsuit was predicated on the belief that she was the sole creator and copyright owner of the drawing, which NYU has used on various items, including clothing and memorabilia, without her consent.
To prevail on a copyright infringement claim, a plaintiff must prove two elements: (1) the plaintiff owns a valid copyright, and (2) the defendant copied “constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991); Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 674, 679 (2d Cir. 1998).
“In the present case,” wrote the court, “the second element is not at issue because the parties do not dispute that the defendant used and copied the Orion design for its own benefit. Rather, the central issue in this case is whether Fleurimond or NYU is the true owner of the Orion copyright.
“Here, the defendant contends that the plaintiff’s copyright is invalid because the design she created falls within the ‘works made for hire’ exception to a copyright’s authorship requirement, which would render any work created by the plaintiff during the scope of her employment with NYU the rightful property of the defendant.”
The court added, “the overwhelming weight of the evidence supports the defendant’s contention that it was within the scope of the plaintiff’s employment as a graphic designer. The record clearly establishes that the plaintiff began working on a new mascot design at the request of NYU and for the benefit of promoting the NYU Athletic Department. Although the mascot design project combined the plaintiff’s artistic ability and graphic design skills, the plaintiff was compensated in the same manner and at the same rate as she was for her work creating banners, signs and seals.”
The court concluded that the defendant “has met its burden of showing that Orion is a ‘work made for hire’ under the Copyright Act, and therefore that the defendant is properly considered the ‘author’ of Orion. In the absence of a written agreement to the contrary, the defendant holds the copyright in the Orion design. ‘Although section 201 may sometimes create harsh results, it clearly places the burden on the employee to obtain a written agreement, and not merely an oral understanding, that the employee will retain the copyright interests in the works he creates while within the scope of his employment.’ Miller v. CP Chemicals, Inc., 808 F. Supp. 1238, 1244 n. 7 (D.S.C. 1992).
Ariel Fleurimond v. New York University; E.D.N.Y.; CV 09-3739 (ADS) (AKT), 2012 U.S. Dist. LEXIS 95379; 7/10/12
Attorneys or Record: (for plaintiff) Mona R. Conway, Conway Business Law Group, P.C., Huntington Station, NY. (for defendant) Robert William Clarida, LEAD ATTORNEY, Cowan, Liebowitz & Latman, P.C., New York, NY.
