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February 22, 1991


The opinion of the court was delivered by: Haight, District Judge:


Following entry of this Court's Memorandum Opinion and Order dated December 10, 1990, 751 F. Supp. 474 familiarity with which is assumed, plaintiff made a timely motion for reargument pursuant to Civil Rule 3(j) of this Court.*fn1 Upon consideration, the motion for reargument is granted, and judgment for infringement will enter against defendant Sonnabend Gallery, Inc.

I am not at all certain that Sonnabend is vicariously liabJe for Koon's infringement under Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963), the case plaintiff relies upon for that theory of liability. Vicarious liability, the Second Circuit said in Shapiro, "depends upon a detailed examination of the relationship between" the primary infringer (in this case Koons) and the one sought to be held vicariously liable (in this case Sonnabend). 316 F.2d at 306. In Shapiro the defendant held vicariously liable operated a chain of retail stores. The primary infringer operated the phonograph record departments at concessionaire in those stores, and sold records which infringed the copyrights of plaintiffs, proprietors of musical compositions. The store owner, defendant H.L. Green Co., Inc. exacted from its concessionaire a licensing agreement which provided that the concessionaire s employees were to "abide by, observe and obey all rules and regulations promulgated from time to time by H.L. Green Company, Inc. . . ." Green also had the authority, in its "unreviewable discretion," to discharge any concessionaire employee believed to be conducting himself improperly. Ibid. In those particular circumstances, the Second Circuit regarded Green as bearing a closer resemblance to "the proprietor or manager of a dance hall leasing his premises to or hiring" an infringing dance band (vicariously liable), as opposed to a "landlord leasing his property at a fixed rental to a tenant who engages in copyright-infringing conduct on the leased premises" (not vicariously liable). Id. at 307.

However, Sonnabend was unquestionably a seller of Koons' infringing sculptures. I agree with Rogers that Sonnabend is accordingly a direct infringer under F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952). Woolworth sold cocker spaniel statuettes which, without Woolworth's knowledge, infringed the plaintiff's copyright. Woolworth was held liable as a direct infringer.

Counsel for Sonnabend argues that Woolworth did not address the point at issue. It is the fact that the Supreme Court granted certiorari "limiting the issues to the measure of recovery, as to which conflict appears among the lower courts." 344 U.S. at 229, 73 S.Ct. at 223 (footnotes omitted). However, in its recitation of the facts, the court stated unequivocally:

  Unbeknown to Woolworth, these dogs had been copied
  from respondent's and by marketing them it became an
  infringer. Ibid.

I must regard that statement either as something the Court tossed off without thinking about it, or as a statement of what the Court conceived to be applicable copyright law. I adopt the latter interpretation. See also Justice Black's dissent at 234, 73 S.Ct. at 226: "The earthenware dogs found to infringe respondent's copyright were bought by F.W. Woolworth Company in good faith at a total cost of $914.40."

Judge Goettel of this Court expressed the same principle more recently in Kieselstein-Cord v. Accessories By Pearl, Inc., 489 F. Supp. 732, 737 (S.D.N.Y.) reversed on other grounds, 632 F.2d 989 (2d Cir. 1980):

  The fact that defendant did not copy the Winchester
  Buckle but instead allegedly bought unauthorized
  copies from a manufacturer without notice to defendant
  of the copyright does not affect the validity of the
  copyright or defendant's liability for infringement.
  If defendant has should the unauthorized copies, which
  he admits, defendant's liability — given a valid
  copyright — is established. The infringer's
  claimed lack of knowledge of the copyright affects
  only damages, not basic liability and injunctive

(footnote omitted).

In the case at bar, Sonnabend was identified as the seller on the sales invoices for the sculptures, and realized 50% of the infringing profits. I think that Sonnabend is a directly infringing seller within the principle of law articulated in Woolworth. This Court's prior Memorandum Opinion and Order is amended accordingly.

It is SO ...

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