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Ariel Fleurimond v. New York University

July 10, 2012


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


This case arises from the allegations by the plaintiff Ariel Fleurimond ("Fleurimond" or "the Plaintiff") that she is the sole creator and copyright owner of "Orion", a caricatured drawing of a cougar. On August 27, 2009, she commenced this action against New York University ("NYU" or "the Defendant"), alleging that it infringed upon her copyright by using and selling various items that bear the Orion design without her consent, in violation of the Copyright Act of 1976, 17 U.S.C. § 101, et seq. Presently before the Court are the parties' motion and cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court denies the Plaintiff's motion for summary judgment and grants the Defendant's cross-motion for summary judgment dismissing the complaint.


The following constitutes the undisputed facts of the case unless otherwise noted. These facts are drawn from the parties' summary judgment submissions, as well as the deposition transcripts requested by the Court and the stipulated facts in the Joint Pre-Trial Order filed on April 9, 2012.

A. The Initial Employment Relationship

NYU is a non-profit corporation duly organized and existing under the laws of New York State where it acts primarily as an educational institution. Fleurimond is a resident of the County of Suffolk in the State of New York. In the fall of 2005, she enrolled in NYU's baccalaureate studies program. In January of 2007, Fleurimond registered with a Federal Work Study Program. Thereafter, NYU hired Fleurimond to work as an equipment room aide for the NYU Athletics Department at their two gym facilities, Coles Gym and Palladium Gym ("the NYU athletic facilities").

Fleuirmond worked in her capacity as an equipment room aide from January of 2007 until approximately September of 2007. As an equipment room aide, Fleurimond was responsible for distributing gym locks and equipment and laundering and distributing towels to members of the NYU athletic facilities. To keep track of her hours, Fleurimond used technology where she would scan her hand to check in when she arrived for work, and scan her hand again when she left to clock out. Fleurimond was compensated for her work as an equipment room aide at a rate of $8.00 per hour. In addition to this position, Fleurimond worked as a web designer for NYU's College of Dentistry from approximately March to July of 2007.

Fleurimond was compensated for her work at the College of Dentistry at a rate of $12.00 per hour.

In or around March of 2007, Fleurimond was approached by NYU Retails and Sales Manager Nancy Isa who inquired if she would be interested in doing graphic design work for the Athletics Department. Fleurimond accepted the graphic design position, and her compensation was increased from $8.00 per hour to $16.00 per hour in recognition of the different nature and scope of her employment. In order to get compensated for her graphic design work, Fleurimond would submit invoices to Isa with the number of hours worked. No new paperwork was filled out for Fleurimond's new position. As a result, her official recorded compensation rate for the NYU Athletic Department was still $8.00 per hour. Accordingly, in order to ensure that Fleurimond was paid $16.00 per hour for her graphic design work, Isa would double the hours that Fleurimond submitted. Isa would then provide that information to Alex Martinez, who was in charge of Human Resources for the Athletic Department, for him to process for payment.

Fleurimond's graphic design work initially consisted of adding graphics to the NYU athletic department website; creating banners to be placed in the Coles gym and Palladium gym; advertisements for the NYU athletic store known as the "Sweat-N-Shop"; and advertisements for athletic department events ("the promotional materials"). (Fleurimond Dep. at 36.) However, Fleurimond never did work on revamping the website, but rather focused her graphic design work on the banners, signs, and seals. (Id. at 40--41.) According to Fleurimond, she did the majority of her graphic design work at home on her own computer, although she sometimes would work on campus if Isa needed her to work on banners, shields, or signs while she was there. (Fleurimond Decl., ¶¶ 18, 19; Fleurimond Dep. at 41--43.) Regardless of whether she worked from home or on campus, Fleurimond submitted invoices to Isa for compensation. It is undisputed that Fleurimond was compensated at a rate of $16.00 per hour for this work, and that this compensation was subject to "full W-2 tax treatment and withholding, including Social Security and Medicare withholding". (Def.'s 56.1 Stmt., ¶ 23.)

B. The Mascot Design Project

Fleurimond states that, approximately three weeks after she began her graphic design work, Isa approached her and asked her if she "knew how to draw". (Fleurimond Decl. ¶ 29.) Fleurimond asserts that, after she informed Isa that she was an artist, Isa asked her to participate on a project to create a brand new mascot design for NYU's Athletic Department ("the mascot design project"). The unofficial NYU Athletic Department mascot was a bobcat, and, prior to the initiation of the project, the mascot design was a version of a bobcat referred to as "robo-cat". According to Fleurimond, Isa informed her that a new mascot design was being sought by NYU because "robo-cat" was outdated and unappealing. (Fleurimond Decl. ¶ 30.)

At this point, the Court must pause to note that, despite being raised by NYU both in argument and evidence, Fleurimond's summary judgment submissions fail to address an entire set of factual circumstances highly relevant to the outcome of these motions. Namely, that Fleurimond's work on the mascot design project was not limited to the creation of the mascot design at issue in this litigation. Thus, the Court draws many of the relevant facts from Fleurimond's deposition and accepts them as her admissions of fact.

According to Fleurimond, Isa invited her to submit a mascot design, and "clearly explained" to her that her design might or might not be chosen and used by NYU. Fleurimond further states that Isa told her that if her design was ultimately chosen "as a candidate for NYU's new Athletic Department mascot", at that point, "negotiation for compensation for [her] work would take place". (Fleurimond Decl., ¶ 32.) NYU does not dispute that Isa approached Fleurimond to participate in creating a new mascot design. However, NYU contends that Fleurimond was one of many employees "extensively and substantively involved in designing the work at issue". (Def.'s Counter 56.1 Stmt., ¶ 11.) In addition, NYU disputes that Isa made any representation that Fleurimond would receive additional compensation if her design was chosen.

Fleurimond began work on various mascot designs. The first mascot that Fleurimond worked on was referred to as "giant cat". According to Fleurimond, Isa made the request to her in the office, but she worked on creating "giant cat" at home. (Fleurimond Dep. at 49--50.) She then worked on revisions of giant cat based on guidance from Isa. Subsequently, at the request of NYU, Fleurimond worked on additional versions of the mascot, including "forward facing cat", "strutting cat", "happy cat", and "kid cat". (Id. at 65.) Preliminary versions of the mascot design are referred to as "trial cats". It is undisputed that Fleurimond submitted invoices for her work sketching and revising these trial cats; and that she was compensated in the same manner and at the same rate as her graphic design work on the promotional materials.

Fleurimond contends that, between March and May of 2007, while she was working on the trial cats and other graphic design projects, she created a mascot design using her own inspirations, references, and materials, and without any assistance in her conceptualization or illustration. The design that Fleurimond created was a three-quarter view of a cougar head and face, and was a preliminary version of the design at issue in this litigation, which Fleurimond later named "Orion". Fleurimond first presented this preliminary version of Orion to Isa in May of 2007 informally, in a sketch on a napkin. Fleurimond then converted the sketch "to a vector and presented it via graphic in an e-mail with notes". (Fleurimond Dep. at 72.) According to Fleurimond, she did not keep track of how much time she spent creating and conceptualizing Orion, nor she inform anyone at NYU as to how many hours she spent on Orion. In her deposition, Fleurimond states that, after she presented Isa with the preliminary version of Orion, she continued to do work on the other trial cats. Furthermore, at her deposition, Fleurimond contends that, when she presented the preliminary version of Orion to Isa, she "set it apart and verbally explained to them how it was different from the other things [she] was doing" and that she presented it for NYU to consider "outside of the scope of that they were asking [her] for at the time". (Fleurimond Dep. at 261--62.)

NYU does not dispute that Fleurimond created a preliminary version of Orion that was presented to Isa in May of 2007. However, NYU disputes the existence of any oral agreement with respect to ownership or compensation. NYU further disputes that there was an agreement to treat the preliminary version of Orion differently than the other trial cats.

When Fleurimond returned to the campus in the fall of 2007 following her summer vacation, her main point of contact for the mascot design project was either NYU employee Meredith Lewis, or Noah LeFevre, the Associate Director of NYU's Athletic Department, who was overseeing the new mascot branding project for the NYU Athletic Department. Lewis also took over as Fleurimond's contact for her graphic design work that involved creating the promotional materials.

Between approximately October of 2007 and the first few months of 2008, Fleurimond completed a final version of Orion, which she presented to NYU "as a candidate for NYU's Athletic Department mascot" (Fleurimond Decl., ¶ 40.) Fleurimond does not deny that during this time, she received input from NYU employees on certain changes to make to the Orion design. However, the parties dispute the extent to which other NYU employees participated in the revisions. According to Fleurimond, NYU's participation in the creation of Orion was "minimal, involving instructions given to Fleurimond, which were very general". (Pl.'s Br. at 22.) For example, Fleurimond made changes "[b]ecause the department or rather Noah would say is there something you can do to make it more fierce and then I would go home and then I would make the change and then present it to him. There were minor changes." (Fleurimond 137--38.)

By contrast, NYU contends that its employees were heavily involved in the revisions. For example, NYU employee Frank Sicignano, the Senior Associate Athletic Director, testified that he sat in on three to four staff meetings with thirty to forty Athletic Department staff members and coaches regarding the mascot. At these meetings, Sicignano testified that LeFevre would present the most recent version of the mascot, and the attendees, usually the coaches, would provide comments. Then, LeFevre "would take back [their] comments and have them incorporated into the next series of designs". (Sicignano Dep. at 147.) With regard to the type of comments, Sicignano testified:

Q. Tell me what you recall as far as what the other coaches comment on?

A. It looks to[o] effeminate. It looks too cartoonish. It looks too childish. Change the color. Change -- the teeth need to be more --the eyes need to be more angry. Fill in the ears. Add the whiskers. The collar doesn't look right. The collar, it used to have spikes on it. I mean, there were many, many, many different variations. (Id. at 149.) LeFevre also testified that he gave specific comments:

A. We went through countless drafts finally getting to a draft that we thought, as a group, we could work with. Each and every step along the way she received very specific directions as to what we wanted changed, what we wanted tweaked, what we wanted altered to get it to a point where it was a creation that we could develop and that we could work on collectively.

Q. The input that you personally had into the final product that we have here as Defendant's Exhibit 14, was your input more specific at any time than general comments such as, Make it look more fierce?

A. Oh, yes. A few examples might be, move the eyes slightly closer together, add a set of top teeth, widen the border around the collar, let's see a draft with a brown that's two shades darker, three shades darker, four shades darker. As we got further into the project, the direction got more and more specific, because we were honing in on what the final version was going to be. (LeFevre Dep. at 246, 250--51.)

Furthermore, in or about September of 2007, Fleurimond began working with NYU to include a version of Orion in a "Branding Book", which incorporated Orion into various graphic displays. According to Fleurimond, she agreed to permit NYU to use the images of Orion in the Branding Book because Isa and LeFevre told her that her design "would have little-to-no chance of being chosen by NYU for its Athletic Department new mascot unless it could be displayed for presentation among graphic materials that would be used for various promotional materials". (Fleurimond Decl., ¶ 42.) Fleurimond states that it was her understanding that the Branding Book "would be presented to Mr. LeFevre's superiors and NYU's attorneys to persuade these decision-makers into accepting [her] design as the new mascot". (Id., ¶ 44.) Although NYU admits that Fleurimond did work incorporating the images into the Branding Book, it denies any conversations in which NYU employees told Fleurimond that the Branding Book was needed to obtain approval of her design. Neither party disputes that Fleurimond was compensated for her work incorporating the images into the Branding Book in the same manner and at the same rate as her graphic design work on the promotional materials.

In or about May of 2008, Fleurimond registered the final version of Orion as "New York University Mascot: Violet the Bobcat" with the Copyright Office, listing herself as the sole author and identifying the nature of the work as a "Vector Illustration". (Pl.'s SJ Motion, Ex. 2 (final version of Orion); id., Ex. 3 (copyright registration dated June 26, 2008).) It is undisputed that, several months after Fleurimond's filing with the Copyright Office, NYU began using the Orion design on apparel, merchandise, promotional items, the NYU website, and on athletic team uniforms.

C. Communications Regarding Copyright Ownership

Throughout 2007 and the first half of 2008, Fleurimond states that she "had several verbal conversations with Nancy Isa regarding how and when negotiations for compensation of [her] Work would take place". (Fleurimond Decl., ¶ 74.) In the fall semester of 2007, Fleurimond states that she "verbally expressed concerns about possible unauthorized use of [her] Work to Mr. LeFevre and his assistant, Meredith Lewis." (Id., ¶ 56.) In response, Fleurimond contends that she was "reassured on several occasions by Mr. LeFevre and Ms. Lewis that use and compensation for [her] Work would be discussed with and after approval by NYU's 'legal team'". (Id., ¶ 57.) In addition, Fleurimond contends that after she presented her copyright to LeFevre in May of 2008, she attended a meeting with LeFevre, Lewis, and another student-employee, Stacey Goto, where LeFevre informed Fleurimond that "once the 'legal department' had approved the design as the new mascot, [she] 'would be happy' with the compensation offered." (Id., ¶¶ 59, 60.) Fleurimond contends that in June of 2008, LeFevre informed her that NYU's legal team "would be in touch with [her] regarding compensation for [her] Work". (Id., ¶ 79.)

NYU denies that any of these conversations took place, and contends that Fleurimond was compensated for her work creating and revising the Orion designs in the same manner and at the same $16.00 per hour rate as her other graphic design work, including her other work on the mascot design project, namely the creation and revision of non-Orion trial cats; revising ...

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