McNatt v. Prince et al

MEMORANDUM OF LAW in Support re: 132 MOTION to Preclude Expert Testimony of June Besek, Barbara Sussman, Amy Whitaker, Nate Harrison, Michelle Bogre, and Allan Douglass Coleman. . Document

S.D.N.Y.October 26, 2018

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DONALD GRAHAM, Plaintiff, vs. RICHARD PRINCE, GAGOSIAN GALLERY, INC., and LAWRENCE GAGOSIAN, Defendants. Case No. 1:15-cv-10160-SHS ERIC MCNATT, Plaintiff, vs. RICHARD PRINCE, BLUM & POE, LLC, and BLUM & POE NEW YORK, LLC, Defendants. Case No. 1:16-cv-08896-SHS MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO EXCLUDE EXPERT TESTIMONY OF JUNE BESEK, BARBARA SUSSMAN, AMY WHITAKER, NATE HARRISON, MICHELLE BOGRE, AND ALLAN DOUGLASS COLEMAN GREENBERG TRAURIG, LLP Richard A. Edlin MetLife Building 200 Park Avenue New York, New York 10166 Ian C. Ballon Nina D. Boyajian Valerie W. Ho 1840 Century Park East, Suite 1900 Los Angeles, California 90067 Attorneys for Defendants Richard Prince, Blum & Poe, LLC, and Blum & Poe New York, LLC Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 1 of 30 i TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................... 1 II. STATEMENT OF FACTS .................................................................................................. 1 A. Graham’s Copyright Infringement Claims .................................................................1 B. McNatt’s Copyright Infringement Claims..................................................................2 C. Prince’s Opening Expert Reports ...............................................................................3 D. Plaintiffs’ Rebuttal Reports .......................................................................................5 III. ARGUMENT ...................................................................................................................... 6 A. Legal Standard for Admissibility of Expert Opinions.................................................6 B. Ms. Besek’s Opinions Should Be Excluded Because She Offers Only Legal Conclusions And Argument ......................................................................................8 C. Ms. Sussman’s Opinions Should Be Excluded Because She Is Not Qualified, Employed No Methodology, And Proffers Conclusions That She Admitted Would Not Be Helpful To The Fact Finder ..............................................................10 D. Ms. Whitaker’s Opinions Should Be Excluded Because Her Political Diatribes Are Untethered To The Law And Will Confuse And Prejudice The Jury .........................................................................................................................14 E. Mr. Harrison’s Opinions Should Be Excluded To The Extent They Stray Beyond A Helpful Discussion Of Art History ..........................................................17 F. Ms. Bogre’s Opinions Should Be Excluded Because They Are Based On Insufficient Facts And No Methodology ..................................................................19 G. Mr. Coleman’s Opinions Should Be Excluded Because They Are Not Based On Sufficient Facts And Are Speculative And Prejudicial .......................................23 Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 2 of 30 ii TABLE OF AUTHORITIES Page(s) Federal Cases 523 IP LLC v. CureMD.Com, 48 F. Supp. 3d 600 (S.D.N.Y. 2014)..........................................................................................7 Agence France Presse v. Morel, 934 F. Supp. 2d 547 (S.D.N.Y. 2013)........................................................................................8 Almeciga v. Center for Investigative Reporting, Inc., 185 F. Supp. 3d 401 (S.D.N.Y. 2016)........................................................................................6 Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346 (S.D.N.Y. 2003)..........................................................................10, 16, 22 Buckley v. Deloitte & Touche USA LLP, 888 F. Supp. 2d 404 (S.D.N.Y. 2012) (Stein, D.J.), aff’d 541 F. App’x 62 (2d Cir. 2013) ...................................................................................................................................8 Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)...................................................................................16, 18, 20, 23 Davis v. Carroll, 937 F. Supp. 2d 390 (S.D.N.Y. 2013)....................................................................................7, 8 Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992).....................................................................................8, 12, 18, 20 Estate of Jaquez v. City of N.Y., 104 F. Supp. 3d (S.D.N.Y. 2015) ..................................................................................7, 13, 15 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ...................................................................................................................6 Laumann v. NHL, 117 F. Supp. 3d 299 (S.D.N.Y. 2015)..............................................................13, 16, 21, 22, 24 Liberty Med. Corp. v. Vivendi Universal, S.A., 874 F. Supp. 2d 169 (S.D.N.Y. 2012)........................................................................................8 LinkCo, Inc. v. Fujitsu Ltd., 2002 WL 1585551 (S.D.N.Y. July 16, 2002) ....................................................................10, 23 Lippe v. Bairnco Corp., 288 B.R. 678 (S.D.N.Y. 2003), aff’d, 99 F. App’x 274 (2d Cir. 2004) .......7, 11, 16, 21, 22, 25 Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 3 of 30 iii Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008).......................................................................................................8 Malaco Leaf, AB v. Promotion In Motion, Inc., 287 F. Supp. 2d 355 (S.D.N.Y. 2003)......................................................................................16 Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007)......................................................................7, 13, 15, 19 Media Sports & Arts S.r.L. v. Kinney Shoe Corp., 1999 WL 946354 (S.D.N.Y. Oct. 19, 1999) ................................................................12, 19, 20 Nimely v. City of N.Y., 414 F.3d 381 (2d Cir. 2005)...........................................................................................6, 15, 24 Olin Corp. v. Lamorak Ins. Co., 2018 WL 1901634 (S.D.N.Y. Apr. 17, 2018)....................................................................17, 18 Pension Comm. Of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 691 F. Supp. 2d 448 (S.D.N.Y. 2010)..............................................................11, 15, 17, 19, 24 Primavera Familienstifung v. Askin, 130 F. Supp. 2d 450 (S.D.N.Y. 2001), abrogated on other grounds by Casey v. Merck & Co., 653 F.3d 95 (2d Cir. 2011) ....................................................11, 15, 16, 17, 23 Quintanilla v. Komori Am. Corp., 2007 WL 1309539 (E.D.N.Y. May 4, 2007), aff’d, 2009 WL 320186 (2d Cir. Feb. 10, 2009) ..............................................................................................................10, 16, 22 Raskin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997).........................................................................................................8 In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531 (S.D.N.Y. 2004)............................................................7, 8, 15, 17, 18, 25 Scentsational Techs., LLC v. Pepsi, Inc., 2018 WL 1889763 (S.D.N.Y. Apr. 18, 2018)..........................................................................11 Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992 (E.D.N.Y. 2006), rev’d sub nom. on other grounds McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008) ....................................7, 11, 19 Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33 (S.D.N.Y. 2016) .........................................................................9, 12, 15, 16, 23 U.S. v. Paracha, 2006 WL 12768 (S.D.N.Y. Jan. 3, 2006) (Stein, J.), aff’d, 313 F. App’x 347 (2d Cir. June 19, 2008) ..............................................................................................................6 Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 4 of 30 iv U.S. v. Williams, 506 F.3d 151 (2d Cir. 2007).......................................................................................................6 Rules Fed. R. Evid. 402 .............................................................................................................................7 Fed. R. Evid. 403 ...........................................................................15, 16, 17, 18, 19, 22, 23, 24, 25 Fed. R. Evid. 702 .....................................................................................................................6, 7, 8 Fed. R. Evid. 704 ...............................................................................................................12, 19, 20 Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 5 of 30 1 I. INTRODUCTION Plaintiffs want to call purported experts June Besek, Barbara Sussman, Amy Whitaker, Nate Harrison, Michelle Bogre, and Allan Douglass Coleman to rebut defendants’ experts’ testimony on issues relating to fair use. But the opinions offered by plaintiffs’ fair use experts do not pass Daubert scrutiny. Ms. Besek, a law lecturer, offers only legal discussions and lawyer arguments that usurp the Court’s role to instruct the jury on the law. Ms. Sussman, an art framer and appraisal document preparer, is not qualified to be an art critic and offers no helpful testimony beyond what plaintiffs can testify to themselves and what the jury can see. Ms. Whitaker, an academic, offers only political rants. Ms. Bogre, another academic, offers legal conclusions and speculative opinions not based on sufficient facts or any methodology. Mr. Coleman, a photography historian and writer, offers moralistic proclamations and speculative opinions about the art market that he admitted at his deposition were not based on any evidence. As for Mr. Harrison, another academic, Defendants do not object to his anticipated testimony about art history and appropriation art to the extent plaintiffs believe his testimony will provide helpful context for the trier of fact. However, Mr. Harrison’s other opinions should be excluded because they are based on an application of Mr. Harrison’s personal view of what fair use law should be rather than on what the law actually is in the Second Circuit. Mr. Harrison also offers political diatribe and personal attacks against Prince, all of which are prejudicial and improper. Defendants respectfully request that the Court grant this Motion excluding plaintiffs’ experts’ opinions from consideration on the pending summary judgment motions and precluding them from testifying at trial. II. STATEMENT OF FACTS A. Graham’s Copyright Infringement Claims Graham alleges that a work in Prince’s New Portraits series (“Portrait of Rastajay92”) that was displayed in an exhibition at the Gagosian Gallery in the fall of 2014 (“Gagosian Exhibition”) Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 6 of 30 2 infringes Graham’s copyright in his photograph entitled Rastafarian Smoking a Joint. (Graham ECF 30, ¶ 4.) Rastafarian Smoking a Joint is a black and white photograph, printed on silver gelatin (Ex. 1 at 280:21-281:8)1 that depicts a Rastafarian man with long dreadlocks, standing shirtless against a white background, smoking a marijuana cigarette. (Graham ECF 54 at 4.) Prince’s Portrait of Rastajay92 is a 4 ft. ¾ in. by 5 ft. ¾ in. color inkjet on canvas painting of a screenshot taken by Prince of Instagram user Rastajay92’s page comprising (1) a cropped image of Rastafarian Smoking a Joint posted by Rastajay92, which was a repost from Instagram user Indigoochild’s post; (2) a comment about the image from Rastajay92 with a fist emoji and a response comment from Prince with a fist emoji; and (3) the number of “likes” generated by Rastajay92’s post, among other Instagram iconography. (Graham ECF 30-2, Ex. B.) Graham also alleges that Prince infringed his copyright by the inclusion of an image of the Portrait of Rastajay92 in the pamphlet given out at the Gagosian Exhibition and on a billboard in 2015 depicting some works from the Gagosian Exhibition. (Graham ECF 30 ¶¶ 6-7; ECF 30-4, Ex. D.) Graham further alleges that a blurry image of Rastafarian Smoking a Joint in a photo-mashup (comprising two images) that Prince posted – but did not create – to Twitter in 2016 with commentary infringes Graham’s copyright. (Graham ECF 30-7, Ex. G.) B. McNatt’s Copyright Infringement Claims McNatt contends that another work from Prince’s New Portraits series (“Portrait of Kim Gordon”) infringes his copyright in a photograph he had taken of musician Kim Gordon. (McNatt ECF 1 ¶ 3.) The Portrait of Kim Gordon is a 4 ft. ¾ in. by 5 ft. ¾ in. color inkjet on canvas painting of a screenshot of Prince’s Instagram page comprising (1) a cropped image of McNatt’s photograph of Kim Gordon which had been posted on Instagram by Paper, a magazine that had commissioned 1 Citations to “Ex. _” refer to the records submitted with the Declaration of Valerie W. Ho in Support of Defendants’ Motion to Exclude Expert Testimony of June Besek, Barbara Sussman, Amy Whitaker, Nate Harrison, Michelle Bogre, and Allan Douglass Coleman. Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 7 of 30 3 McNatt to photograph Gordon for an article; (2) comments from Prince about the image with emojis; and (3) the number of “likes” in response to Prince’s post, among other Instagram iconography. (McNatt ECF 1-2, Ex. B). McNatt also alleges his copyright was infringed when the Portrait of Kim Gordon was included in a book of Prince’s New Portraits published by Blum & Poe, which included all of the works exhibited at the Blum & Poe gallery in Tokyo. (McNatt ECF 1 ¶ 38.) C. Prince’s Opening Expert Reports In denying Prince’s motion to dismiss at the outset of the Graham case, the Court noted that Prince would have to provide evidence outside the four corners of the Complaint to establish that the Portrait of Rastajay92 is a transformative work protected by the fair use doctrine, and further recognized that “[t]his evidence may include art criticism.” (Graham ECF 54 at 19.) On April 27, 2018, defendants served the Expert Reports of Brian Wallis, Ph.D, Lisa Phillips, Allan Schwartzman, Daniel Wolf, Alice E. Marwick, Ph.D, and Sandra Minnott-Phillips. These experts provided opinions relevant to issues of fair use: Dr. Wallis: Dr. Wallis was the Deputy Director and Chief Curator at the International Center of Photography and is currently the Curator of The Walther Collection in New York. (Ex. 2 ¶ 2.) To provide the necessary context from art history, Dr. Wallis discusses the history of appropriation art and Prince’s place in it. (Id. ¶¶ 27-37.) He discusses Prince’s New Portraits from the art critic’s perspective and concludes that the works convey new expression and meaning different from plaintiffs’ photographs. (Id. ¶¶ 38-50.) Dr. Wallis explains: “Of the intentionally large canvas of the New Portraits, only about half is composed of the image (as opposed to the text and other elements). Prince made this decision deliberately – not inadvertently. Indeed, the image portion of the New Portraits is displayed in a square” and in approximately the same size of portraits Andy Warhol made of many celebrities, including Marilyn Monroe. (Id. ¶ 42.) Dr. Wallis also opines that while Graham’s photograph focused on the individual subject, Prince’s New Portraits “refer to the ways Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 8 of 30 4 these portraits are already transformed by Instagram as a medium of communication, in much the same way that selfies on the Internet are a form of self-promotional communication rather than documentary of honorific portraits in any conventional sense.” (Id. ¶ 45.) Dr. Wallis notes that “one of Prince’s key purposes in the New Portraits – not lost on critics or audiences – was to comment on the culture of the Internet itself, the sharing, the commenting, the sampling, the retweeting, all new versions of appropriation and recontextualization.” (Id. ¶ 43.) Ms. Phillips: Ms. Phillips was Curator of Contemporary Art at the Whitney Museum for 20 years and is currently the Director of the New Museum in New York. She is an expert on appropriation art. (Ex. 3 ¶ 2.) Ms. Phillips provides a tutorial on appropriation art and a history of Prince’s works from the past four decades. (Id. ¶¶ 16-27.) Ms. Phillips explains that from the curator/scholar’s perspective, Prince substantially altered the underlying image in his New Portraits, including by providing a three-dimensional painting that evoked the look and feel of a smartphone and “by using a different medium (painting), going from virtual to real space, capturing the entire screenshot of the Instagram page, transforming the scale dramatically, and adding another layer with his own brilliant commentary and images.” (Id. ¶ 31; see also id. ¶¶ 32-33.) Mr. Schwartzman: Mr. Schwartzman is the Chairman and Co-Head of the Fine Art Division of Sotheby’s. (Ex. 4 ¶ 1.) Mr. Schwartzman discusses appropriation art as well as the pricing of art in the primary and secondary markets. (See, e.g., id. ¶ 31.) Mr. Schwartzman opines that plaintiffs’ photographs and Prince’s works do not appeal to the same buyers, and as a result, Prince’s use of plaintiffs’ images could not have impacted the market for plaintiffs’ works. (Id. ¶¶ 32-35.) Mr. Wolf: Mr. Wolf is a well-known art dealer, collector and writer. (Ex. 5 ¶¶ 2-3.) He discusses the differences between plaintiffs’ works and Prince’s works from the dealer/collector’s perspective. (Id. ¶ 19.) Mr. Wolf also distinguishes the nature of plaintiffs’ photographs from Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 9 of 30 5 Prince’s paintings; the former were intended to capture and literally document their subjects, while the latter were intended to convey a message beyond what is captured in the image of the individual. (Id. at ¶¶ 16-19; see also Ex. 6 ¶¶ 2-5.) This difference contributes to their different place in the art market. Dr. Marwick: Dr. Marwick is a communications professor and an expert on social media. (Ex. 7 ¶¶ 1-2.) Because the images at issue were taken from social media and used in contemporary art that reference social media, Dr. Marwick is expected to provide helpful context about the history and mechanics of social media, how and why people use social media, and user practice on Instagram. (See generally id. ¶¶ 29-83.) Dr. Marwick will also testify about the extensive research she conducted regarding all of the websites, posts and other public spaces on the internet that display plaintiffs’ images at issue. (See id. ¶¶ 18-28.) Ms. Minnott-Phillips: Ms. Minnott-Phillips is a highly experienced Jamaican attorney. (Ex. 8 ¶¶ 1-5). Ms. Minnott-Phillips is expected to testify that under Jamaican law, the Rastafarian man who was the subject of Graham’s Rastafarian Smoking a Joint owns the right of publicity over his image and likeness. (Id. ¶ 18.) Ms. Minnott-Phillips is also expected to testify that under Jamaican law, absent a written agreement or other substantiated agreement, a photographer would not be permitted to commercially exploit the image and likeness of the Jamaican citizen. (Id.) D. Plaintiffs’ Rebuttal Reports In response to defendants’ experts’ reports, plaintiffs served the rebuttal reports of June Besek, Barbara Sussman, Amy Whitaker, Nate Harrison, Michelle Bogre, and Allan Douglass Coleman. (Exs. 9 to 14.) While plaintiffs’ experts devote much of their reports to a discussion that plaintiffs’ works “are art” and “are expressive and creative,” these discussions are improper rebuttal testimony because none of defendants’ experts opined that plaintiffs’ works are “not art” or are “not creative or expressive.” Plaintiffs have relied on a misunderstanding of Mr. Wolf’s opening report to Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 10 of 30 6 support their strawman arguments. Mr. Wolf has explained that his contention is not that plaintiffs’ works are not art, but rather, that they are of a different nature and exist in a market that is different from the market for Prince’s contemporary art. (Ex. 6 ¶¶ 2-5; Ex. 15 at 108:15-109:9; see also Ex. 16 ¶¶ 3, 6; Ex. 17 ¶ 4.) Further, as explained below, plaintiffs’ experts offer mostly legal conclusions, political diatribe and rank speculation – all of which are inadmissible. III. ARGUMENT A. Legal Standard for Admissibility of Expert Opinions It is the district court’s responsibility to “fulfill the ‘gatekeeping’ function of making certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Nimely v. City of N.Y., 414 F.3d 381, 396 (2d Cir. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Where “the proposed expert testimony is not of a technical nature, but rather falls within the ambit of social science, this Court is guided by the objective of the Daubert factors, and not a mechanical application of each one.” U.S. v. Paracha, 2006 WL 12768, at *19 (S.D.N.Y. Jan. 3, 2006) (Stein, J.), aff’d, 313 F. App’x 347 (2d Cir. June 19, 2008). “[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied.” Almeciga v. Center for Investigative Reporting, Inc., 185 F. Supp. 3d 401, 415 (S.D.N.Y. 2016) (quoting U.S. v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)). Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 11 of 30 7 Whether a purported expert is qualified to provide testimony is a threshold determination that requires the court to consider the totality of the expert’s qualifications, including knowledge, skill, experience, training or education. 523 IP LLC v. CureMD.Com, 48 F. Supp. 3d 600, 642 (S.D.N.Y. 2014). The court must “compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony[.]” Id. (internal quotation marks and citations omitted). “Rule 702 mandates that experts stay within the reasonable confines of their subject area, and cannot render expert opinion on an entirely different field or discipline.” Davis v. Carroll, 937 F. Supp. 2d 390, 413 (S.D.N.Y. 2013) (internal citations and quotation marks omitted). Expert testimony that is “speculative or conjectural,” or that “is connected to existing data only by the ipse dixit of the expert,” is inadmissible. See Lippe v. Bairnco Corp., 288 B.R. 678, 686 (S.D.N.Y. 2003), aff’d, 99 F. App’x 274 (2d Cir. 2004) (internal quotation marks and citations omitted). Expert testimony that is unhelpful to the factfinder or usurps the province of the jury is inadmissible. Estate of Jaquez v. City of N.Y., 104 F. Supp. 3d, 414 428 (S.D.N.Y. 2015); Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 566 (S.D.N.Y. 2007) (expert testimony is inadmissible when it addresses “lay matters which the trier of fact is capable of understanding and deciding without the expert’s help.”) (internal quotation marks, citations and modifications omitted). Expert testimony that usurps the role of the trial judge in instructing the jury as to the applicable law is inadmissible. In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 541 (S.D.N.Y. 2004). Expert opinion also may be excluded under Federal Rule of Evidence 402 or 403 if it is irrelevant, inflammatory, prejudicial or wastes time. See, e.g., Schwab v. Philip Morris USA, Inc., 449 F. Supp. 2d 992, 1221 (E.D.N.Y. 2006), rev’d sub nom. on other grounds McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008). Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 12 of 30 8 Finally, “[i]t is well settled that courts may rule on evidentiary determinations, including motions to strike expert testimony for failure to comply with Federal Rule of Evidence 702, on motions for summary judgment.” Davis v. Carroll, 937 F. Supp. 2d 390, 411 (S.D.N.Y. 2013) (citing Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)); accord Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (“Under Daubert, the district court functions as the gatekeeper for expert testimony, whether proffered at trial or in connection with a motion for summary judgment.”) (quotation marks and citation omitted); Buckley v. Deloitte & Touche USA LLP, 888 F. Supp. 2d 404, 412 (S.D.N.Y. 2012) (Stein, D.J.) (holding that expert opinions that are without factual basis, speculative, or conclusory are inappropriate material for consideration on a motion for summary judgment, aff’d, 541 F. App'x 62 (2d Cir. 2013). B. Ms. Besek’s Opinions Should Be Excluded Because She Offers Only Legal Conclusions And Argument Ms. Besek’s purported rebuttal opinions are inadmissible legal conclusions. Ms. Besek is a Lecturer in Law at Columbia Law School. (Ex. 9 ¶ 1.) She does not claim to have any expertise as an art critic, scholar or collector. She proffers the opinions below about U.S. law, all of which should be excluded. See Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992) (“[E]xpert testimony that expresses a legal conclusion” must be excluded); Liberty Med. Corp. v. Vivendi Universal, S.A., 874 F. Supp. 2d 169, 174 (S.D.N.Y. 2012) (excluding expert’s opinions as inadmissible legal conclusions); In re Rezulin, 309 F. Supp. 2d at 541 (expert testimony that usurps the role of the court to instruct the jury should be excluded). • Ms. Besek’s opinion that Instagram’s Terms of Use do not confer any express or implied license under U.S. law for any user, other than Instagram, to use copyrighted material posted on that platform is an inadmissible legal conclusion. (Ex. 9 ¶¶ 7-10 (discussing Agence France Presse v. Morel, 934 F. Supp. 2d 547 (S.D.N.Y. 2013).) Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 13 of 30 9 • Ms. Besek’s opinion that U.S. copyright law does not require a copyright notice or watermark is an inadmissible statement of law. (Ex. 9 ¶¶ 11-14 (discussing Berne Convention).) • Ms. Besek’s opinion that “whether a photographer’s work violates the publicity rights of a subject in a foreign jurisdiction does not impact the photographer’s ability to claim copyright protection in the United States” and her discussion of U.S. case law are inadmissible legal conclusions. (Ex. 9 ¶¶ 7, 21-23.) • Ms. Besek also states that she has “studied and commented on the intersection of the internet and copyright law, including the question of whether one work transforms another by altering its meaning or message,” and based on that legal expertise, concludes that “there is no significant alteration to the meaning or expression of [Plaintiffs’ works] simply because they are in the frame of the Instagram interface, and no reasonable observer would discern one.” (Id. ¶ 19.) This is also an inadmissible legal conclusion. It tells the jury what conclusion to reach – “no reasonable observer would discern [a new meaning or expression]” – with no helpful analysis. Ms. Besek offers no testimony about art history, art criticism or social media that would assist the jury in assessing transformativeness in the context of appropriation art and new media, and in any event, she would not be qualified to render any such opinions. Ms. Besek’s other statements that “this is not a case where an unsophisticated user might have drawn erroneous conclusions about a work unaccompanied by a copyright notice” because “Richard Prince is a sophisticated artist who has encountered infringement claims in the past” and “it is unfair to suggest that authors remove themselves from the digital marketplace to protect their works” are lawyer argument, not expert testimony. (Id. ¶¶ 15-16.) Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 48-49 (S.D.N.Y. 2016) (rejecting expert opinion that “reads more like lawyer’s Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 14 of 30 10 argument”); LinkCo, Inc. v. Fujitsu Ltd., 2002 WL 1585551, at *2 (S.D.N.Y. July 16, 2002) (rejecting expert report that “‘does no more than counsel for [plaintiff] will do in argument, i.e., propound a particular interpretation of [defendant]’s conduct’”) (citation omitted). None of Ms. Besek’s opinions are admissible. Her testimony should be excluded. C. Ms. Sussman’s Opinions Should Be Excluded Because She Is Not Qualified, Employed No Methodology, And Proffers Conclusions That She Admitted Would Not Be Helpful To The Fact Finder Ms. Sussman is in the art framing and installation business. (Ex. 18 at 28:10-29:13; 31:16-32- 13.) She also “creat[es] appraisal documents.” (Id. at 29:21-23; see also id. at 17:12-18:3 (“I make legal reports for the appraisal profession.”).) She has no accreditation in fine art photography, has never published any articles on photography or appropriation art, has never given any speeches or talks about photography or appropriation art, and is generally unfamiliar with Prince’s works. (Id. at 115:10-116:12; 62:5-14.) Her report does not offer helpful context in the area of art history or art criticism. It merely offers conclusory opinions, based on admittedly no methodology other than viewing photocopies of images of the works at issue, that (1) “Plaintiffs’ works of art are expressive and creative;” and (2) “a reasonable observer would find the Prince works indistinguishable from Plaintiffs’ works.” (Ex. 10 ¶¶ 18-33; Ex. 18 at 11:16-22, 50:15-20, 72:20-73:4.) As a threshold matter, Ms. Sussman is not qualified to render these opinions because she has no recognized expertise in the area of photography or appropriation art. Plaintiffs do not offer Ms. Sussman as an appraiser of the works at issue; they only offer her on matters about which she is manifestly not qualified to testify. See Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353-54 (S.D.N.Y. 2003) (expert not qualified to testify about value of stock photograph where her primary experience in photography was in commissioned photographic work); Quintanilla v. Komori Am. Corp., 2007 WL 1309539, *3-4 (E.D.N.Y. May 4, 2007) (mechanical engineer with experience designing and building electronic power systems who had never been employed in any aspect of the Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 15 of 30 11 printing industry or any position involving the design of machine guarding was not qualified to testify about printing press design), aff’d, 2009 WL 320186 (2d Cir. Feb. 10, 2009). Her first opinion is also improper rebuttal testimony because none of defendants’ experts have said that Graham’s or McNatt’s photographs are not expressive or creative. See Pension Comm. Of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 691 F. Supp. 2d 448, 468 (S.D.N.Y. 2010) (“Because this proposed testimony is outside Weiser’s established expertise and beyond the proper scope of Weiser’s testimony as a rebuttal witness, Weiser is precluded from opining on these matters.”). Her proffered analysis in support of her first opinion is also speculative, based on insufficient facts and offers nothing beyond what plaintiffs can testify to themselves. (Ex. 10 ¶ 20 (“Although I do not know the process behind the artist’s development of his ideas and the image itself, I know the artist made a series of many decisions to create this work of art, including decisions as to lighting, composition, posing of the subject, etc.”); ¶ 21 (“Edits would have likely been made digitally.”) (emphasis added); Ex. 18 at 59:13-15 (did not speak with either Graham or McNatt before preparing rebuttal report).) See Lippe, 288 B.R. at 686 (speculative opinion is inadmissible); Scentsational Techs., LLC v. Pepsi, Inc., 2018 WL 1889763, at *4 (S.D.N.Y. Apr. 18, 2018) (holding that it is improper for an expert to present a summary of the underlying evidence and that “narration of facts of the case may easily invade the province of the jury, providing a separate basis for exclusion”). Even though she was not previously familiar with Graham’s work, Ms. Sussman proclaims that his image “is iconic, which is why, in my opinion, Prince grabbed it in the first place.” (Ex. 10 ¶ 26.) Ms. Sussman’s inflammatory statements are improper expert testimony and serve no purpose other than to invite jury prejudice. See Schwab, 449 F. Supp. 2d at 1221 (precluding expert from using pejorative terms); Primavera Familienstifung v. Askin, 130 F. Supp. 2d 450, 529 (S.D.N.Y. Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 16 of 30 12 2001) (an expert cannot be permitted to “supplant the role of counsel in making argument at trial, and the role of the jury [in] interpreting the evidence.”), abrogated on other grounds by Casey v. Merck & Co., 653 F.3d 95 (2d Cir. 2011); Scott, 315 F.R.D. at 48-49 (rejecting expert opinion that “reads more like lawyer’s argument”). Ms. Sussman’s second opinion fares no better. Her opinion that a reasonable observer would find Prince’s New Portraits to be indistinguishable from plaintiffs’ works usurps this Court’s role to instruct the jury on the law of fair use and the reasonable observer standard. See Hygh v. Jacobs, 961 F.2d at 364. Her opinion also usurps the jury’s role to assess the works themselves from the perspective of a reasonable observer. (See, e.g., Ex. 10 ¶ 32 (“A reasonable observer would see both as a picture of a man with a mane of wild hair, smoking something.”); ¶ 38 (“To a reasonable observer, a frame does not transform the work, it simply presents the image within a frame.”); ¶ 35 (“These considerations are all part of what a reasonable observer would see when viewing both the Prince and the Plaintiffs’ Works.”); ¶ 40 (“A reasonable observer would recognize the image whether it was a black-and-white work printed using colored ink or black and white ink.”). See Hygh, 961 F.2d at 364 (expert’s statements in § 1983 action against police officer that the officer’s conduct was not “‘justified’” or “‘warranted’” and that the officer was “‘negligent’” merely told the jury what result to reach and should have been excluded); Media Sports & Arts S.r.L. v. Kinney Shoe Corp., 1999 WL 946354, at *1 (S.D.N.Y. Oct. 19, 1999) (“Although an expert may opine on the ultimate issue of fact, she ‘may not give testimony stating ultimate legal conclusions based on those facts.’”); Fed. R. Evid. 704, Advisory Comm. Note (Rule 704 does not require “the admission of opinions which would merely tell the jury what result to reach.”). Ms. Sussman’s second opinion is also based on insufficient facts or data. She admitted she did not inspect Prince’s large scale works in person but merely viewed miniature reproductions on Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 17 of 30 13 her computer and, thus, did not inspect the back or the sides of Prince’s paintings. (Ex. 18 at 107:5- 109:25.) The scale, color, texture, and the three-dimensionality of the New Portraits certainly should have been considered by Ms. Sussman if she was going to opine about the similarities and differences between the works at issue. See Laumann v. NHL, 117 F. Supp. 3d 299, 319 (S.D.N.Y. 2015) (excluding expert opinions about consumer demand as “based on insufficient facts and data” where they were “not the product of any significant, independent research or study, but have instead been developed for the sole purpose of bolstering plaintiffs’ position in this litigation”). Moreover, Ms. Sussman did not base her opinions on any discernible methodology other than viewing reproductions of the works themselves, which the triers of fact are capable of doing. (Ex. 18 at 11:16-22 (no methodology employed other than personal experience); 50:15-20 (“Q. So, in analyzing a new meaning, you were looking at visual similarities or differences between the two photographic elements, correct? . . . A. Correct.”); 72:20-73:4 (“Q. Now, in your analysis of what a reasonable observer can determine, did you apply any kind of generally accepted criteria in the industry? A. I don’t think that there is any – there is no way of measuring. It is only an opinion based on experience. I would like to know if there was --”).) And, Ms. Sussman incorrectly – and without basis – reviewed only the photographic element of the New Portraits, rather than the entire work, in reaching her conclusions. (Id. at 11:16-22.) Ms. Sussman ultimately eviscerated her own opinions about what a reasonable observer would conclude when she admitted that “the public could reach a different conclusion” and “I have a whole lot of friends, some would agree, some would not. Just like the population.” (Id. at 48:13-49:5; 92:23-94:6.) Her opinions are unhelpful to the jury and should be excluded in their entirety. Estate of Jaquez, 104 F. Supp. 3d at 428; Malletier, 525 F. Supp. 2d at 566. Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 18 of 30 14 D. Ms. Whitaker’s Opinions Should Be Excluded Because Her Political Diatribes Are Untethered To The Law And Will Confuse And Prejudice The Jury Ms. Whitaker’s entire report reads like a protest article on art politics rather than proper rebuttal testimony. She offers the following four opinions, none of which are admissible for the reasons discussed below: (1) The specific Prince Works in question are expressly commercial in the manner of a late career brand extension that borrows not broadly and abstractly by repurposing corporate published materials but from individuals exploitatively at a personal level; (2) the nature of Plaintiff’s Works is creative and expressive; (3) the amount of Plaintiff’s Works used by the Prince Works in relation to the whole is substantial; and (4) the effect of the Prince Works upon the potential market for or value of Plaintiffs’ Works is not correctly modeled in terms of art market returns but in terms of “added value” of Plaintiffs’ Works. (Ex. 11 ¶ 13.) Ms. Whitaker’s first opinion and the basis for this opinion are nothing more than lawyer argument and/or academic political diatribe. (See, e.g, id. ¶ 19 (“I could call myself a ‘plagiarism writer’ instead of an ‘appropriation artist,’ and I would still be accountable to people whose work I ‘quoted’ or the academic integrity policies of most universities.”); ¶ 20 (“The arguments put forth by experts for the Defendants raise important questions of power in defining art and art markets.”); ¶ 21 (“Defendants’ experts’ assessment of the Plaintiff’s Works as ‘not art’ depends upon the notion that ‘art’ and ‘artist’ are categories and terms defined and controlled by experts or other elite voices in the art world. This notion is at best accidentally undemocratic and at worst persistently and inexcusably colonialist and in need of updating.”); ¶ 22 (“The mention by Phillips that McNatt’s subject, Kim Gordon, was a ‘friend of the artist,’ meaning Prince, both heightens a sense of clubbiness and undermines any potential claim not have been able to locate the rights holder.”); ¶ 23 (“Prince is a designer with a well-known label who has put his label on others’ works without asking the underlying designers.”); ¶ 28 (“In my view, the ‘appropriation’ of images from large corporate advertising campaigns (as Prince did in his earlier work) is different in kind from taking them from individuals who are themselves creative workers. . . . The Prince Works Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 19 of 30 15 instead point toward coopted labor and incidental commentary . . . .”); ¶ 37 (“the change of scale, medium and context, all support the notion that the Prince Works are extractive of the underlying creative labor of the Graham and McNatt Works.”); ¶ 40 (“I do not see how taking images without contact, compensation, or exchange of the work itself is a gesture of opening portrait painting to those previously excluded by lack of wealth and status.”).) These purported “opinions” are unhelpful to the jury and invite prejudice. Fed. R. Evid. 403; Primavera, 130 F. Supp. 2d at 529; Scott, 315 F.R.D. at 48-49. Ms. Whitaker’s suggestion that Prince “fails a good-faith test sometimes applied to the first fair use factor” also usurps the role of the Court to instruct the jury and the role of the jury to decide the facts. (Ex. 11 ¶ 43.) Estate of Jaquez, 104 F. Supp. 3d at 428; Malletier, 525 F. Supp. 2d at 566; In re Rezulin Prods., 309 F. Supp. 2d at 541. Ms. Whitaker’s second opinion that plaintiffs’ works are creative and expressive is improper rebuttal opinion. Defendants’ experts are not expected to testify that plaintiffs’ works are “not art” or that plaintiffs’ works are “not expressive or creative.” Thus, Ms. Whitaker’s second opinion falls outside the scope of proper rebuttal testimony and will confuse the issues and waste time. Fed. R. Evid. 403; Pension Comm., 691 F. Supp. 2d at 468. Ms. Whitaker’s suggestion that “[a]rt historians also function as the ratings agencies of the art world, and can have a vested interest in furthering the legacy of artists whose work they have studied, or sold” is improper expert testimony because its purpose is to attack the credibility of defendants’ experts. (Ex. 11 ¶ 31.) Nimely, 414 F.3d at 398 (holding that expert’s testimony regarding other witnesses’ credibility usurps the jury’s role). Ms. Whitaker’s third opinion regarding the amount of plaintiffs’ works used in Prince’s New Portraits (comprising all of one paragraph) should be excluded as unhelpful. (Ex. 11 ¶ 44.) Ms. Whitaker offers no useful analysis beyond what the jury can see for themselves. Malletier, 525 F. Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 20 of 30 16 Supp. 2d at 566. Ms. Whitaker’s fourth opinion that Prince’s New Portraits impacted the market for Graham’s and McNatt’s images should be excluded for four reasons. First, her opinion is based on little more than ideological rants and/or lawyer arguments. (Ex. 11 ¶¶ 47-48 (“this claim has an unacknowledged bias of assuming power of the elite to define others, including in the arts . . . .”); ¶ 53 (“Prince has added value in so far as he is a rainmaker. He has power analogous to someone at the top of lobbying, law or finance firms . . . .”). Fed. R. Evid. 403; Primavera, 130 F. Supp. 2d at 529; Scott, 315 F.R.D. at 48-49. Second, her contention that “Prince’s work has a consequential, tarnishing effect on the current and future market of Graham’s and McNatt’s work” is not based on any facts, data, experience, empirical studies or consumer surveys; it is based solely on her personal belief that “if I were a collector of Graham’s work, I would mentally picture Prince’s appropriation of it, and that would diminish my enjoyment and relatedly, the price I would pay.” (Ex. 11 ¶ 50.) See Lippe, 288 B.R. at 686; Laumann, 117 F. Supp. 3d at 319; Malaco Leaf, AB v. Promotion In Motion, Inc., 287 F. Supp. 2d 355, 377 (S.D.N.Y. 2003) (expert’s “personal opinion concerning his taste preference [was] insufficient to create a question of fact regarding the quality of defendants’ product,” where he “submitted no survey, or any other information, concerning consumers’ perceptions of a quality differential”). Third, having spent her entire career in academia with no experience as an art dealer, Ms. Whitaker is unqualified to render any opinions about the art market. See Baker, 254 F. Supp. 2d at 353-354; Quintanilla, 2007 WL 1309539 at *3-4. Fourth, Ms. Whitaker applies the wrong legal standard. One of the factors to be considered in determining fair use is “the effect of the use upon the potential market for or value of the copyrighted work.” Cariou v. Prince, 714 F.3d 694, 705-709 (2d Cir. 2013) (“Although certain of Prince’s artworks contain significant portions of certain of Cariou’s photographs, neither Prince nor the Canal Zone show Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 21 of 30 17 usurped the market for those photographs. Prince’s audience is very different from Cariou’s, and there is no evidence that Prince’s work ever touched – much less usurped – either the primary or derivative market for Cariou’s work.”). Ms. Whitaker apparently disagrees with this test and believes that the test should be “an economic analysis of ‘added value.’ If either party were subtracted entirely from the situation, how would the work change?” (Ex. 11 ¶¶ 52-55.) Ms. Whitaker’s personal disagreement with the Second Circuit’s law on fair use is irrelevant and likely to confuse and mislead the jury. Fed. R. Evid. 403; Olin Corp. v. Lamorak Ins. Co., 2018 WL 1901634, at *21 (S.D.N.Y. Apr. 17, 2018) (“Expert testimony also should be excluded when it applies the wrong legal standard.”). All of Ms. Whitaker’s opinions should be excluded. E. Mr. Harrison’s Opinions Should Be Excluded To The Extent They Stray Beyond A Helpful Discussion Of Art History Mr. Harrison’s report begins with a discussion of art history and appropriation art. (Ex. 12 at 3-6.) To the extent plaintiffs contend this will provide helpful context for the jury, defendants do not object to this portion of Mr. Harrison’s anticipated testimony provided that he does not proffer prejudicial policy or legal arguments.2 Mr. Harrison’s opinion that plaintiffs’ works are “creative and expressive” is not proper rebuttal testimony. Defendants’ experts will not testify that the works are “not creative or expressive.” (Ex. 12 at 7-8.) Fed. R. Evid. 403; Pension Comm., 691 F. Supp. 2d at 468. Mr. Harrison’s remaining opinions that Prince’s New Portraits do not change the meaning or expression of plaintiffs’ works should be excluded. Rather than apply the Second Circuit’s test for transformativeness, Mr. Harrison used a subjective four-part test that he admitted is not from the Second Circuit and has never been peer reviewed. (Ex. 19 at 26:4-27:3; 36:4-18; 37:11-38:3; 40:24- 2 For example, in his discussion of art history, Mr. Harrison should be precluded from suggesting that “visual art cannot continue to evolve and develop if artists such as Plaintiffs are always at risk that the ‘brand name’ of another artist can be attached to their work with minimal alternation and suddenly, that secondary work would be considered something new and expressive.” (Ex. 11 at 5). Fed. R. Evid. 403; Primavera, 130 F. Supp. 2d at 529; In re Rezulin, 309 F. Supp. 2d at 541. Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 22 of 30 18 41:19; 62:17-63:9; 97:5-9.) In re Rezulin, 309 F. Supp. 2d at 543-44 (holding that proposed expert testimony regarding ethics was based on the experts’ “personal, subjective views,” and that “[s]uch speculative testimony . . . cannot serve as the predicate for any purported industry ethical standard”). Mr. Harrison’s application of the “reasonable observer test” is also at odds with the law of the Second Circuit. He understood the “reasonable observer test” to be whether someone would recognize the original work when looking at the latter work. (Ex. 19 at 155:14-25 (“Yes, I think that if you were to take a reasonable observer, let’s take my loving mother once again, and show them the Graham/McNatt work in conjunction with the corresponding Prince portraits, she would say these are obviously – that’s obviously that image.”). That is not the law. Under Cariou, a latter work may be considered transformative even if the original work is recognizable in the latter work if the latter work is imbued with new expression, meaning or message. Cariou, 714 F.3d at 706 (“If the secondary use adds value to the original – if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings – this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. . . For a use to be fair, it must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.”) (quotations and citations omitted). Mr. Harrison’s opinions on transformativeness should be excluded because he applied the wrong legal standard, which will confuse the jury. Olin Corp., 2018 WL 1901634, at *21; Fed. R. Evid. 403. Moreover, Mr. Harrison’s conclusions about what a “reasonable observer” would see merely tells the jury what result to reach. (Ex. 12 at 7 (“in viewing the Prince Works, a reasonable observer would readily recognize the Graham Work and the McNatt Work as the art on display.”); at 9 (“Graham and McNatt’s original artistic expression remain fundamentally intact to the reasonable observer because the physical alteration is so minimal and lacking in new meaning.”) See Hygh, 961 Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 23 of 30 19 F.2d at 364; Media Sports, 1999 WL 946354, at *2; Fed. R. Evid. 704, Advisory Comm. Note (Rule 704 does not require “the admission of opinions which would merely tell the jury what result to reach.”). His analysis is also unhelpful because he provides nothing more than a visual description of the works at issue and what Graham and McNatt did to capture their images. (Ex. 12 at 6-8.) The jury will hear testimony from Graham and McNatt and is capable of visually inspecting the works for themselves. Malletier, 525 F. Supp. 2d at 566. Finally, Mr. Harrison’s report is peppered with prejudicial political diatribe and personal attacks that may have a place in academia but not at trial. (See, e.g., Ex. 12 at 7 (“Such a narrative smacks of elitism, and a view of creative authorship as hierarchical.”); p. 8 (“Rather than instilling new expressions and new meanings, the Prince Works demonstrate Prince’s cynical, self-absorbed use of other artists’ works (i.e., Graham’s and McNatt’s) in the name of a vague ‘commentary.’”); Ex. 19 at 65:13-66:9.) Fed. R. Evid. 403; Schwab, 449 F. Supp. 2d at 1221 (precluding expert from using pejorative terms). Accordingly, Mr. Harrison should be precluded from proffering any testimony other than a general background discussion of art history and appropriation art. F. Ms. Bogre’s Opinions Should Be Excluded Because They Are Based On Insufficient Facts And No Methodology Ms. Bogre is an Associate Professor at Parsons School of Design. (Ex. 13 ¶ 1.) Her first opinion – “I have reviewed Plaintiffs’ Works and conclude that they are ‘art’.” – is improper rebuttal testimony because none of Defendants’ experts have opined that Plaintiffs’ works are not art. (Id. at ¶¶ 38 & 41-46.) While Ms. Bogre claims that she was responding to what she perceived as a suggestion from Mr. Wolf that the plaintiffs’ works are “not art,” she had not read Mr. Wolf’s reply report in which he unequivocally confirmed that he had intended no such suggestion. (Ex. 20 at 208:16-19.) Ms. Bogre’s first opinion is irrelevant, will waste time and confuse the jury. Fed. R. Evid. 403; Pension Comm., 691 F. Supp. 2d at 468. Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 24 of 30 20 Her second opinion that she “do[es] not believe a reasonable observer would conclude that the Prince Works use the source material (i.e., Plaintiffs’ Works) in a completely new or unexpected way . . .” is a legal conclusion disguised as an expert opinion. It tells the jury what a reasonable observer “would conclude.” (Ex. 13 ¶ 47.) See Hygh, 961 F.2d at 364; Media Sports, 1999 WL 946354, at *2; Fed. R. Evid. 704, Advisory Comm. Note (Rule 704 does not require “the admission of opinions which would merely tell the jury what result to reach.”). Moreover, like Mr. Harrison, Ms. Bogre applied the wrong legal standard. She stated that “Plaintiffs’ Works are readily apparent in the Prince Works” and viewers who had previously seen Plaintiffs’ works would recognize those works in Prince’s Portrait of Rastajay92 and Portrait of Kim Gordon. (Ex. 13 ¶¶ 52-53.) As discussed above, the test for transformativeness is not whether the first work is or is not visually recognizable in the second work but whether the second work has imbued the first work with new meaning or expression. See Cariou, 714 F.3d at 706. Ms. Bogre’s second opinion is a disguised legal conclusion based on the wrong legal standard and should be excluded on this basis alone. Putting aside her misapplication of the law, Ms. Bogre’s second opinion is also not based on sufficient facts or data. First, she never inspected any of the works at issue but merely viewed small photocopies of the works on paper or on her computer without the benefit of experiencing the large scale of Prince’s works or seeing the back or sides of the works. Because she did not view the actual works, she did not know whether they were intended to be slightly blurry or whether that was a function of the photocopying. Although she acknowledged that seeing an artwork in person is important, she admitted that she never asked to inspect the actual works. (Ex. 20 at 7:2-18; 251:6-16; 279:17-23; 306:11-16.) Second, she opines that “[t]he image itself, almost unaltered, provides the primary communication to the viewer who may or may not notice or even read the few words or phrases written as Instagram posts” and further testified that she had completely ignored the Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 25 of 30 21 Instagram comments and emojis in considering the meaning and expression of Prince’s New Portraits even though the Instagram iconography comprises nearly half of the large scale works. (Ex. 13 ¶ 49; Ex. 20 at 308:13-310:21 (“I look at the image, I don’t look at the text.”).) While she contends that the comments and Instagram iconography are insignificant to the “ordinary observer,” she admitted she did not speak with anyone who had actually seen or purchased Prince’s New Portraits. (Ex. 20 at 311:22-312:12.) She did not even consider Mr. Gagosian’s testimony regarding why he had purchased the Portrait of Rastajay92. (Id. at 418:14-419:19.) When pressed, Ms. Bogre admitted that she did not know whether other observers of the New Portraits would have viewed the text in the works and admitted that it was possible that others may value the commentary, thereby eviscerating her opinion that an ordinary observer would ignore the commentary. (Id. at 424:23-25 (“Q. Would you expect others to look at the text in Mr. Prince’s works? A. I’m not sure.”); 427:6-8 (“Q. Is it possible that others might give more value to Prince’s commentary? A. Sure.”); 299:22- 300:3 (“I don’t know how it communicates to the viewer because it doesn’t communicate to me, and I can only speak to how it communicates to me.”).) In a moment of candor, she admitted that she has “no proof” to back up her opinions. (Id. at 232:24-233:19.) Third, to try to support her opinion that Prince’s New Portraits were not new, Ms. Bogre referenced the results of some Google searches and claimed that there were two art exhibits that “have already explored the commodification of the Instagram space.” (Ex. 13 ¶ 50). But, she had attended neither exhibit, did not know what was actually shown at those exhibits, and did not know whether the 2016 exhibit—which post-dated Prince’s New Portraits exhibits—was inspired by Prince’s New Portraits. (Id. at 320:22-321:13; 323:12-325:22; 327:7-13.) Ms. Bogre’s speculative opinions are not based on sufficient facts or a sound methodology. See Laumann, 117 F. Supp. 3d at 319; Lippe, 288 B.R. at 686. Ms. Bogre’s third opinion that Prince’s works have undermined the “potential market for Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 26 of 30 22 new versions or new uses of” plaintiffs’ photographs is rank speculation. (Ex. 13 ¶ 59.) First, Ms. Bogre is not qualified to render any opinions about the art market. See Baker, 254 F. Supp. 2d at 353- 54; Quintanilla, 2007 WL 1309539 at *3-4. She admitted as much at her deposition. (Ex. 20 at 391:4-392:2 (“Q. Are you an expert on market valuation? A. I think you asked me that much earlier, I am not.”). Tellingly, plaintiffs’ counsel originally had reached out to Ms. Bogre not to retain her to testify about the art market but to ask her for references to her “colleagues who at Parsons who are gallery owners and gallerists.” They only later settled on Ms. Bogre. (Id. at 144:20-146:17.) Second, Ms. Bogre’s conclusory opinions regarding the art market are not supported by any facts, data, analysis, surveys, studies or actual experience as an art dealer. Ms. Bogre postulates that the value of photographs can vary over time and McNatt’s image of Kim Gordon “could skyrocket were she to be involved in a scandal or major life event” but does not explain why potential buyers would focus on McNatt’s image under those circumstances as opposed to the thousands of other Kim Gordon photographs. (Ex. 13 ¶ 57.) Ms. Bogre also proclaims, with no evidence or analysis whatsoever, that “it is reasonable to conclude that . . . [the value of plaintiffs’ images] ha[ve] been compromised by the notoriety of Mr. Prince’s unauthorized derivative work.” (Id. ¶¶ 60 & 63.) Ms. Bogre admitted at her deposition that “that’s a subjective opinion.” (Ex. 20 at 379:18-380:13.) Ms. Bogre’s suggestion that someone in the future may want to merchandize plaintiffs’ works at issue and Prince’s New Portraits would compete for those opportunities is also based on rank speculation. (Ex. 13 ¶ 64.) She admitted at her deposition “I don’t know what Mr. Graham is planning to do with his work.” (Ex. 20 at 403:22-404:3.) She further admitted that it is just as possible that Prince’s New Portraits introduced potential new customers to plaintiffs’ works. (Id. at 378:12-21.) Ms. Bogre’s speculative opinions about the art market will mislead and confuse the jury and have no place at trial. Laumann, 117 F. Supp. 3d at 319; Lippe, 288 B.R. at 686; Fed. R. Evid. 403. All of Ms. Bogre’s Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 27 of 30 23 opinions should be excluded. G. Mr. Coleman’s Opinions Should Be Excluded Because They Are Not Based On Sufficient Facts And Are Speculative And Prejudicial In his rebuttal report, Mr. Coleman offers a critique of post-modern art theory and three opinions: “(1) Plaintiffs’ Works are creative and expressive and constitute art; (2) the Prince Works use a substantial portion of Plaintiffs’ Works and the Prince Works are not transformative of Plaintiffs’ Works; and (3) the Prince Works are likely to have a substantially negative impact upon the potential market for or value of Plaintiffs’ Works.” (Ex. 14 ¶ 7.) While some of Mr. Coleman’s art history discussion may be generally helpful in providing context, he crosses the line from educator to advocate when he posits that post-modern art theory “would effectively preempt any claim to ownership of and control over rights (even for limited periods) by any creator anywhere. If its advocates prevail, copyright as a legal, ethical, and social construct will evaporate.” (Id. ¶ 15; Ex. 21 at: 107:14-108:18; 112:13-113:16 (disagreeing with Cariou holding because it implicitly adopted post-modern art theory which Mr. Coleman believes is a threat to copyright); 94:6-16 (stating he does not believe it is ever fair use when an entire photograph is used).) He follows this moralistic, alarmist statement with a political one: “assorted art- world figures have argued on the record that the status of these individuals as acclaimed artists producing works with high market value overrides the intellectual property rights of the lower-profile intellectual property producers (by definition less moneyed, less able to afford high-powered legal representation and/or to attract art-world defenders) whose intellectual property they have taken for their own use without permission.” (Ex. 14 ¶ 20.) While these hyperbolic arguments may have a place in academia, they are unhelpful and highly prejudicial in a trial. Fed. R. Evid. 403; Primavera, 130 F. Supp. 2d at 529; Scott, 315 F.R.D. at 48-49; LinkCo, 2002 WL 1585551, at *2. Mr. Coleman’s attack on the credibility of Defendants’ experts is also improper because it usurps the Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 28 of 30 24 jury’s role to assess the credibility of witnesses. (Ex. 14 ¶ 18.) Nimely, 414 F.3d at 398. Mr. Coleman’s first opinion that plaintiffs’ works are art is improper rebuttal testimony because none of defendants’ experts have opined that Graham’s and McNatt’s works are not art. (Ex. 14 ¶¶ 22-32.) Fed. R. Evid. 403; Pension Comm., 691 F. Supp. 2d at 468. Mr. Coleman’s second opinion that Prince’s New Portraits are not transformative is not based on sufficient facts or data. (Ex. 14 ¶¶ 33-45.) First, Mr. Coleman did not inspect the Prince works at issue or any of the works in the New Portraits series and did not know their size or color palette. (Ex. 21 at 83:18-84:7 (guessing that they are “bigger than a breadbox”); 118:23-119:14 (admitting he had not seen the originals and that he did not know whether viewing the actual paintings as opposed to small scale photocopies would change his opinion); 176:7-10 (admitting he did not examine or consider the commentary that Prince intentionally excluded from the Instagram prints); 183:25-184:22 (stating he could not comment on the color palettes because he had not seen the originals). Second, Mr. Coleman admitted that in reaching his opinion, he had only focused on the photographic image portion of Prince’s works and completely ignored the Instagram iconography and commentary, which comprise nearly half of the works. (Ex. 14 ¶ 44; Ex. 21 at 178:20-179:8 (stating he does not have an opinion regarding whether the commentary added a transformational quality to the painting); 235:19-236:2 (“Because my analysis is based on the images and not on the comments.”). Mr. Coleman’s opinion should be excluded because it is based solely on his moral and political beliefs. See Laumann, 117 F. Supp. 3d at 319. Third, Mr. Coleman’s second opinion is also unhelpful to the jury because he admitted that, unlike him, other observers may focus on the comments in Prince’s New Portraits and those comments may be meaningful to them. (Ex. 21 at 178:20-181:13; 225:15-20.) Mr. Coleman’s third opinion that Prince’s works will likely negatively impact the market for Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 29 of 30 25 plaintiffs’ works is not supported by any analysis, data, facts, or surveys; it is based solely on Mr. Coleman’s personal objection to Prince’s works. (Ex. 14 ¶¶ 46-50.) Mr. Coleman did not even bother to review or consider the sales records for plaintiffs’ works before proffering his baseless opinion. (Ex. 21 at 69:13-71:13.) When pressed, Mr. Coleman admitted that he had absolutely no evidence to support his market impact conclusions: Q. . . . do you have any actual evidence you can point to that the uses by Mr. Prince in this case of the McNatt and Graham photos actually diminished the reputation of either photographer or their photos? A. No. Q. So this is really your theory, but it’s not something where there is some evidence you can point to, correct? A. It’s my opinion. . . . Q. So you really don’t know either way whether it’s had a positive impact, a negative impact or maybe no impact at all? . . . A. No, I don’t know. (Id.; see also id. at 71:7-73:5.) Mr. Coleman’s market impact opinions are speculative and prejudicial. Lippe, 288 B.R. at 686; In re Rezulin, 309 F. Supp. 2d at 543-44; Fed. R. Evid. 403. None of Mr. Coleman’s opinions are admissible. New York, New York Dated: October 5, 2018 GREENBERG TRAURIG, LLP By: /s/ Valerie W. Ho__ Richard A. Edlin MetLife Building, 200 Park Avenue New York, New York 10166 Tel: (212) 801-9200 EdlinR@gtlaw.com Ian C. Ballon (Ballon@gtlaw.com) Nina D. Boyajian (BoyajianN@gtlaw.com) Valerie W. Ho (HoV@gtlaw.com) 1840 Century Park East, Suite 1900 Los Angeles, California 90067 Tel: (310) 586-7700 Attorneys for Defendants Richard Prince, Blum & Poe, LLC, and Blum & Poe New York, LLC Case 1:16-cv-08896-SHS Document 134 Filed 10/26/18 Page 30 of 30