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SEIJI KAKIZAKI v. RIEDEL

December 15, 1992

SEIJI KAKIZAKI, Plaintiff,
v.
BETTINA RIEDEL and BETTINA RIEDEL LTD., Defendants.


MARTIN, JR.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

JOHN S. MARTIN, Jr., District Judge:

 This motion for summary judgment and to dismiss plaintiff's claims requires this Court to determine whether, under the Federal Copyright Act of 1976, plaintiff's copyright in a photographic image he created was destroyed by its publication without proper copyright notice and whether the Act of 1976 preempts certain state causes of action. Defendant's motion for summary judgment on plaintiff's claim for copyright infringement is granted because defendant's distribution of the photographic image without copyright notice, pursuant to plaintiff's authorization, placed the work in the public domain. Defendant's motion to dismiss plaintiff's claims for injury to reputation, misappropriation and conversion, and unjust enrichment is granted because these claims are preempted by the Copyright Act of 1976.

 Background

 In 1982 plaintiff Seiji Kakizaki either offered, or was asked by defendant Bettina Riedel, to take a picture of defendant for Riedel to use as a graphic for invitations to the opening of her first clothing store. In any event, plaintiff did take a photograph and, through the use of special effects, created a unique image ("the work"). It is undisputed that he then gave one print of the work to defendant for her to send to people ("the invitees") to invite them to the opening party.

 In essence plaintiff asserts he licensed defendant to use the photo for only this one occasion. Defendant asserts that he gave her the photo for "old time's sake," as an unconditional gift for her to use as she saw fit. They both do agree that he handed her one print of the photo, which did not bear upon it a copyright notice, to mail to the invitees. They agree that he asked for, and did receive, credit for the work on the invitations. Defendant mailed it bearing the phrase, "Photo by Seiji Kakizaki." However, the card defendant mailed contains none of the notices of copyright which the Copyright Act of 1976 requires in order to maintain a copyright (ie., "Copyright", "Copr.", or the letter "C" in a circle). 17 U.S.C. §§ 401, 405 (1977 & Supp. 1992). Plaintiff concedes that he did not discuss with defendant the protection of his copyright. He merely asserts that he "assumed that when [he] told her that [he] required proper credit that she would put the copyright notice on, or anything necessary to protect [his] photograph and prevent it from being placed in the public domain." He further alleges that she has repeatedly used the photographic image without his authorization subsequent to the initial mailing.

 Kakizaki filed a complaint in this action for copyright infringement, conversion and misappropriation, unjust enrichment, and injury to reputation. Defendant Riedel has moved for summary judgment and to dismiss the complaint.

 Discussion

 The standard for summary judgment requires that there be no questions of material fact in order for this Court to reach the questions of law which are dispositive of the claim. In considering a motion for summary judgment, the non-movant's facts, which are backed by affidavits or other appropriate evidence, must be taken as true and "are viewed in the light most favorable to the non-movant." Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992) (cites omitted).

 In the procedural context of Rule 56(c), if - even when all facts as alleged by the nonmoving party are regarded as true - the moving party is still entitled to judgment as a matter of law, then factual disputes however genuine are not material, and their presence will not preclude summary relief." Id.

 Therefore, this action is an appropriate one for disposition on motion for summary judgment.

 The courts have construed the term "publication" in the Act of 1976 to incorporate into it the colon law definition of publication. Hubco Data Prods. Corp. v. Management Assistance, Inc., 219 U.S.P.Q. (BNA) 450 (D. Iowa 1983); Schuchart & Assocs. v. Solo Serve Corp., 220 U.S.P.Q. (BNA) 170 (W.D. Tex. 1983); see also MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT, § 4.13[B] (1976 & Supp. 1992). The common law of copyright draws a distinction between general and limited publication. White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952). A limited publication "does not result in loss of the author's common-law right to his manuscript; but [] the circulation must be restricted both as to persons and purpose, or it can not be called a private or limited publication." Id. at 747. A publication that is not limited is general. A general publication without copyright notice destroys the copyright in a work. Id.

 A limited publication is one which "communicates the contents of a [work] to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale . . . ." Id. at 746-47. "Even if the distribution of copies is limited to a selected group, the publication will nevertheless be general unless there is an express or implied limitation as to the purpose for which such copies may be used by the group." American Vitagraph, Inc. v. Levy, 659 F.2d 1023 (9th Cir. 1981); White v. Kimmell, 193 F.2d 744 (9th Cir. 1952); Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776 (S.D.N.Y. 1968). Plaintiff does not raise any genuine issue of material fact with regard to the question of whether he required defendant to indicate to the recipients of the photo that they were limited in any way as to the uses they might make of the photo. *fn1" It is clear from the papers submitted that the invitees' use of the photos was not restricted in any way. A publication without a limited purpose, to even one person, is a general publication. Burke v. NBC, Inc., 598 F.2d 688, 691 (1st Cir. 1979). "Unless ...


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