United States District Court, Southern District of New York
February 22, 1991
ART ROGERS, PLAINTIFF,
JEFF KOONS AND SONNABEND GALLERY, INC., DEFENDANTS.
The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
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.
In the case at bar, Sonnabend did not exercise that degree of
control over Koons that Green did over its infringing concessionaire. As
far as the dance hall cases go, the arguments fairly cut both ways.
Neither party at bar cites an art gallery case, nor have I found one,
which leads me to comment with Judge Kaufman in Shapiro upon the
surprising dearth of squarely applicable precedents in "a business
setting so common that the dearth of precedents seems inexplicable," id.
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
Unbeknown to Woolworth, these dogs had been copied
from respondent's and by marketing them it became an
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
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 ORDERED.