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MARSHALL v. NEW KIDS ON THE BLOCK

December 20, 1991

ELIZABETH MARSHALL, PROFESSIONALLY KNOWN AS BETTE MARSHALL, PLAINTIFF,
v.
NEW KIDS ON THE BLOCK PARTNERSHIP, DICK SCOTT ENTERTAINMENT, INC., BIG STEP PRODUCTIONS, INC., THE TOPPS COMPANY, INC., UNIQUE INDUSTRIES, INC., BUTTON-UP, A.S.P. PUBLISHING, INC., PENGUIN BOOKS USA, INC., AND BANTAM BOOKS, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

This is an action for injunctive relief and damages alleging copyright infringement. Seven of the defendants jointly move to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1). For the reasons set forth below, the motion is denied.

BACKGROUND

Plaintiff Elizabeth Marshall is a New York resident working as a professional photographer under the name Bette Marshall. Defendant New Kids on the Block Partnership (the "New Kids") is a Massachusetts partnership doing business as a popular music recording group. Defendant Dick Scott Enterprises is a New York corporation which serves as manager of the New Kids. Defendant Big Step Productions is a New York corporation which owns the trademark to "New Kids on the Block." Defendants Topps Company, Inc. and Unique Industries are Pennsylvania corporations. Defendant Button Up is a Michigan corporation. Defendant ASP Productions is a California corporation. Defendant Penguin Books USA, Inc. is a New York corporation. Defendant Bantam Books is a division of Bantam Doubleday Dell Publishing Group, a New York corporation.

The Complaint alleges that on or about September 20, 1989 Ms. Marshall conducted a photo session in which she took photographs of the members of the New Kids (the "Photographs"). Ms. Marshall claims that she is the sole owner of the copyright in the Photographs and that she has received a certificate of registration for the Photographs from the Register of Copyrights. Complaint ¶¶ 5, 17.

  Photo Session, New Kids On The Block One Door
  Poster, One 2X3 poster of group, One individual
  poster Each Kid. Additional Posters to be
  negotiated with Photographer. Photographs for
  public relations, Tour Book and Fan Club. After
  selection, pictures to be returned to Elizabeth
  Marshall for Editorial Distribution. All Photos
  used to be credited to BETTE Marshall. Additional
  uses (including Albums. etc.) to be negotiated.

The reverse of the Invoice states in part:

  REPRODUCTION RIGHTS: Reproduction rights are
  conditioned on Photographers receipt of payment
  in full and Client's proper use of copyright
  notice. All rights not expressly granted herein
  remain the exclusive property of Photographer.
  Unless otherwise stated on the face of this
  Agreement, duration of the License is one year
  from Agreement date and limited to use in the
  United States of America. Client may not sell,
  assign or otherwise transfer the License, or any
  rights or obligations under this License without
  Photographer's prior written consent.

Marshall Aff., Exh. B. Ms. Marshall states that Mr. Wilford paid the Invoice and never indicated that it did not accurately reflect the license granted by her to the New Kids. Marshall Aff. ¶ 4.

Ms. Marshall alleges that the Defendants have published and displayed the Photographs in a manner which has infringed her copyright. Complaint ¶ 21. She states that she has seen the Photographs on the following New Kids items, none of which were authorized by the license agreement: trading cards, the top of display boxes for the trading cards, tablecloths, paper plates, wallet cards, buttons, books, and posters. Marshall Aff. ¶ 7. She also provides copies of pages from the book "Our Story: New Kids On The Block" in which photographs credited to "Elizabeth Marshall" appear. Marshall Aff., Exh. C.

Mr. Wilford offers a different version of the license granted to the New Kids. He states that prior to September 20, 1989, he entered into an oral contract with Ms. Marshall (the "Oral Contract") which gave the New Kids a much broader license than that memorialized by the Invoice. The Oral Contract permitted the New Kids to use the Photographs without limitation for public relations, posters, products for the New Kids fan clubs, and merchandising through the Winterland Company.*fn2 Mr. Wilford states that all of the uses of the Photographs complained of by Ms. Marshall were permissible uses within the scope of the Oral Contract. Affidavit of Win Wilford, sworn to on October 11, 1991 ("Wilford Aff.") ¶¶ 4-5.

Ms. Marshall has filed suit for copyright infringement, seeking:

  (1) an order enjoining Defendants from future
      ...

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