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SCANLON v. KESSLER

July 9, 1998

CHRISTOPHER SCANLON, Plaintiff, against GIL KESSLER, BRUCE MARCUS, JOHN WEIS, and GAY MALE S/M ACTIVISTS, Defendants.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 I. BACKGROUND

 Plaintiff, Christopher Scanlon ("Scanlon"), commenced this action on February 19, 1997, against defendants, Gil Kessler ("Kessler"), Bruce Marcus ("Marcus"), John Weis ("Weis"), and Gay Male S/M Activists ("GMSMA"), alleging: (1) copyright infringement; (2) breach of fiduciary duty; (3) breach of contract; and (4) defamation. *fn1" These claims arise from defendants' alleged violations of 17 U.S.C. §§ 101, et seq, New York common law, and New York statutory law. Scanlon seeks statutory damages, attorney's fees and costs, and injunctive relief.

 By order dated November 13, 1997, the court severed Scanlon's copyright infringement claim from the other three claims. A bench trial on the copyright infringement claim was held before the court on November 17, 18, and 19, 1997. Based on the stipulations of facts between the parties, the trial testimony and the exhibits submitted at trial, the court makes the following Findings of Facts and Conclusions of Law.

 II. FINDINGS OF FACT

 1. Plaintiff Scanlon was a member of defendant GMSMA from 1987 to 1996. For several of those years, Scanlon served on GMSMA's Board of Directors. (Tr. at 50). *fn2"

 2. Defendant GMSMA is a non-profit organization which advocates for the rights of gay men with a sadomasochistic lifestyle. (Tr. at 50). Defendants Kessler, Marcus and Weis are all members of GMSMA who have held various positions within the organization. (Tr. at 149-50, 254, 334-35).

 3. Scanlon possesses Certificates of Registration from the United States Copyright Office for photographs entitled "Convergence", "Suspension", "Caged", "Pinned", "Standing Flame", and "Sitting Flame." (Exh. 1, 2, 3, 43, 44, 45). *fn3" These photographs, taken by Scanlon, depict exhibits displayed at various GMSMA events. (Tr. at 51-52). In this action, Scanlon alleges that defendants infringed his copyright for two of these photographs, "Suspension" and "Pinned."

 4. GMSMA did not hire Scanlon to take photographs at GMSMA events, and GMSMA never employed Scanlon. (Tr. at 150). Scanlon never sold his copyright for any of the photographs to GMSMA. (Tr. at 151). Scanlon never entered into a written agreement with GMSMA transferring his copyright for any of the photographs. (Tr. at 150-151).

 5. Beginning in 1988, Scanlon provided GMSMA with photographs which he had taken at various GMSMA events. (Tr. at 52, 104-105). GMSMA used some of Scanlon's photographs from time to time in its organizational literature over the years. (Tr. at 54-57).

 6. In early 1995, defendant Kessler gave two photographs ("Sitting Flame" and "Standing Flame") to Theodore Heaney ("Heaney") to accompany an article Heaney was writing for Checkmate magazine. Kessler never informed Heaney that Scanlon had taken the two photographs. (Tr. at 163-164). Kessler did not inform Scanlon that he was giving the two photographs to Heaney for inclusion in Heaney's article in Checkmate magazine. GMSMA policy provides that photographs taken at GMSMA events are only for the organization's internal use. (Tr. at 258). Defendant Kessler therefore violated GMSMA policy by providing the two photographs to Heaney for publication in Checkmate magazine, a magazine external to GMSMA. (Tr. at 164, 258). In May, 1995, Heaney's article was published in Checkmate, along with the two photographs. (Tr. at 163; Exh. 61). The article did not credit Scanlon as the photographer. (Exh. 61). At the time Kessler provided Heaney with "Sitting Flame" and "Standing Flame," Scanlon had not yet obtained Certificates of Registration from the United States Copyright Office for the two photographs. (Exh. 44, 45).

 7. After Scanlon's photographs were published in Checkmate magazine, Scanlon wrote a letter to the members of the Board of Directors of GMSMA. In this letter, Scanlon informed the Board that he was concerned about the use of his photographs in Checkmate magazine and the lack of a comprehensive GMSMA photo policy. (Exh. 52). However, despite Scanlon's protests, no comprehensive photo policy was developed.

 8. In late 1996, Scanlon encountered Weis in a club called "The Lure." Weis was distributing GMSMA fliers for an event called "LeatherFest." The fliers contained a photograph, entitled "Convergence", which had been taken by Scanlon. (Tr. at 72; Exh. 64). Scanlon informed Weis that he was upset that the photograph was being used without crediting Scanlon as the photographer. (Tr. at 71-72, 260-61). At the time the photograph was used in the GMSMA fliers, Scanlon had not yet obtained a Certificate of Registration from the United States Copyright Office. (Exh. 1).

 9. In 1997, two photographs taken by Scanlon, "Suspension" (Exh. 29) and "Pinned" (Exh. 33), were posted on GMSMA's ...


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