McNatt v. Prince et al

RESPONSE

S.D.N.Y.December 11, 2018

[REDACTED PUBLIC VERSION] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ERIC MCNATT, Plaintiff, v. RICHARD PRINCE, BLUM & POE, LLC, and BLUM & POE NEW YORK, LLC , Defendants. Case No. 1:16-cv-08896-SHS PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT UNDER LOCAL CIVIL RULE 56.1 AND COUNTERSTATEMENT OF MATERIAL FACTS CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Attorneys for Plaintiff Eric McNatt November 9, 2018 Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 1 of 54 2 Plaintiff Eric McNatt (“Plaintiff” or “McNatt”), through his counsel Cravath, Swaine and Moore LLP, hereby responds to the Statement Pursuant to Rule 56.1 submitted by Defendants Richard Prince, Blum & Poe, LLC and Blum & Poe New York, LLC (each entity individually or both entities collectively, “Blum & Poe”) (“Defendants”). I. RESPONSES TO DEFENDANTS’ UNDISPUTED FACTS Contrary to Defendants’ contention, there are genuine issues of material fact that preclude entry of summary judgment in Defendants’ favor, as set out immediately below and as described in detail in Plaintiff’s Counterstatement of Material Facts. Plaintiff disputes Defendants’ assertions as either unsupported or immaterial, except as stated below (following each of Defendants’ assertions, which are italicized). Plaintiff never gave Defendants permission to use the photograph at issue. Plaintiff incorporates by reference the Counterstatement of Facts as to each of Defendants’ assertions. 1. Richard Prince is one of the best known contemporary artists. (Boyajian Decl. Ex. 8 ¶¶ 27-28). (footnote omitted) Plaintiff does not dispute that the author of the cited document expressed the opinion reflected in Statement 1, but states that it is immaterial to the questions presented on Defendant’s motion. 2. Prince has had solo exhibitions at the Guggenheim and Whitney museums in New York City and has had his work acquired by and exhibited at the world’s preeminent museums. (Id.). Plaintiff does not dispute Statement 2 for purposes of this motion, but states that it is immaterial to the questions presented on Defendant’s motion. 3. In the spring of 2014, Prince was captivated by Instagram and used the platform to create a series of portraits of Instagram users. (Prince Decl. ¶ 11; Boyajian Decl. Ex. 10 at PRINCE_MCNATT 0000254). Plaintiff disputes Statement 3 because the quoted language does not provide a complete or accurate statement of how Prince used the platform. Moreover, Statement 3 is not fully supported by Prince Decl. ¶ 11, which does not say that Prince became captivated by Instagram in the spring of 2014, nor does it say that he used the platform to create a series of portraits of Instagram users. Plaintiff further disputes Statement 3 because Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 2 of 54 3 it mischaracterizes Defendant’s testimony. Boyajian Decl. Ex. 10 at PRINCE_MCNATT 0000254 does not state that Prince used the platform to create a series of portraits of Instagram users. Instead, it says that he used the platform to create one portrait of one Instagram user after obtaining said user’s permission. 4. Prince spent weeks and months – and hours on a single profile – on Instagram to get to “know” the personas of users in this virtual world and selected images that he used as a starting point for his New Portraits series, envisioning the iPhone as both his paintbrush and his studio. (Prince Decl. ¶¶ 11, 15; Boyajian Decl. Ex. 10 at PRINCE_MCNATT 0000254). Plaintiff disputes Statement 4 because it is not supported by the cited documents. The documents do not say that Prince spent “weeks and months – and hours on a single profile – on Instagram to get to ‘know’ the personas of users”. Plaintiff further disputes Statement 4 because it is not consistent with Prince’s testimony at his deposition regarding his process for creating the New Portraits. At his deposition, Prince testified that he was not so much paying attention to the actual photo itself but more about going through several photos to find the right picture to use for the New Portraits. (Ex. 38 (Prince Tr.) at 132:20- 133:9; 193:3-11.)1 Moreover, the statement is immaterial insofar as it purports to describe the entire New Portraits series, as opposed to the work at issue here. 5. Many of Prince’s New Portraits works feature an Instagram user’s post, with the addition of Prince’s commentary within the post itself. (Boyajian Decl. Ex. 16). Prince clicked on images in Instagram and combed through all of the comments on the thousands of posts he viewed to determine which comments had interesting language that he wanted to comment on and include in his portrait and which ones he wanted to exclude. (Prince Decl. ¶ 17; Boyajian Decl. Ex. 9 at 193:12-194:12, 199:5-23). Plaintiff does not dispute that many New Portraits include an Instagram user’s post and Prince’s comments, but disputes the remainder of Statement 5 because it is not supported by the cited document: the cited testimony from Boyajian Decl. Ex. 9 does not substantiate Statement 5. Plaintiff further disputes Statement 5 because it does not accurately reflect Prince Decl. ¶ 17. Prince did not state that he “combed through all of the comments on the thousands of posts he viewed”. Plaintiff further disputes Statement 5 because it is not consistent with Prince’s testimony at his deposition regarding his process for creating the New Portraits. Moreover, the statement is immaterial insofar as it purports to describe the entire New Portraits series, as opposed to the work at issue here. 1 In support of Plaintiff’s Responses and Counterstatement of Material Facts, Plaintiff submits the Declaration of Caitlin Fitzpatrick. Exhibits to the Fitzpatrick Declaration are cited herein as “Ex. __”. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 3 of 54 4 6. Other times, Prince would simply find an image on Instagram and make his own commentary. (Prince Decl. ¶¶ 14, 18). Plaintiff does not dispute Statement 6 for purposes of this motion. 7. Commenting was Prince’s “contribution.” (Boyajian Decl. Ex. 9 at 126:7- 12, 126:17-23; Prince Decl. ¶ 17). Plaintiff does not dispute for purposes of this motion that Prince states that commenting was his contribution, but Plaintiff states that Statement 7 is vague and ambiguous and objects to the Statement insofar as it makes a legal argument regarding fair use. 8. After Prince determined that he could only keep three comments in a screenshot, he had to decide which comments to remove. (Prince Decl. ¶ 17; Boyajian Decl. Ex. 9 at 199:9-14). Plaintiff does not dispute for purposes of this motion that Prince claims to have acted as described in Statement 8, but Plaintiff asserts that the statement is immaterial to the questions presented on Defendants’ motion. Prince’s perception of the effort he put into the Infringing Photograph is irrelevant. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 352-54, 364 (1991). 9. By swiping comments and reporting them as spam, Prince was able to manipulate which comments – including his – would appear on the screensave, and in which order. (Prince Decl. ¶ 17; Boyajian Decl. Ex. 9 at 127:2-20). Plaintiff disputes Statement 9 because it misstates Prince’s testimony. Prince stated that he was able to report other comments as spam such that his comments appeared underneath the image, but Prince did not state that he could manipulate the order of the comments that appeared in the screensaves. Moreover, Plaintiff asserts that the statement is immaterial to the questions presented on Defendants’ motion. 10. The resulting image was a combination of photographs and text that often existed only on his iPhone (i.e., his removal of comments only effected Prince’s view of the post, not others’). (Prince Decl. ¶ 17; Boyajian Decl. Ex. 9 at 198:18-199:4). Plaintiff disputes Statement 10 insofar as it is unsupported by the cited documents and depends on speculation as to whether the resulting image existed only on Prince’s iPhone. Plaintiff further states that Statement 9 is immaterial to the questions presented on Defendants’ motion. 11. Next, he captured the image as a screenshot and sent the digital file to his studio assistant who cropped the file according to his instructions, such that only certain of the Instagram content was included in the portrait, framed by white space. (Boyajian Decl. Ex. 9 at 191:7-10, 195:25-197:12; Boyajian Decl. Ex. 11 at 159:17-163:7). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 4 of 54 5 Plaintiff disputes Statement 11 insofar as it is unsupported by the cited documents. These documents do not say that Prince’s studio assistant cropped Instagram content from the digital file. 12. Once the cropping was complete, Prince’s assistant printed studies of the potential paintings in color, on 22 x 17-inch paper, at his studio, which he kept in piles on his desk and reviewed to determine which few he would turn into large-scale works of art. The selected studies were then sent to the lab for printing. (Boyajian Decl. Ex. 11 at 161:8-163:8; Prince Decl. ¶¶ 21-22). Plaintiff does not dispute Statement 12 for the purposes of this motion, but states that Statement 12 is largely immaterial to the questions presented on Defendant’s motion. Moreover, the statement is immaterial insofar as it purports to describe the entire New Portraits series, as opposed to the work at issue here. 13. Prince spent a great deal of time considering the presentation and production of the portraits. (Prince Decl. ¶¶ 23-26; Boyajian Decl. Ex. 9 at 115:5-17). Plaintiff does not dispute that Prince claims to have acted as described in Statement 13, but states that Statement 13 is immaterial to the questions presented on Defendants’ motion. Defendants’ perception of the effort he put into the Infringing Photograph is irrelevant. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 352-54, 364 (1991). Moreover, the statement is immaterial insofar as it purports to describe the entire New Portraits series, as opposed to the work at issue here. 14. After experimenting with different types of media on which to print the Instagram works, including on wood, plastic, and metal, Prince worked with a printing lab to select a brand-new type of canvas that “received the jet, meaning the process, in a brand-new way. It fused the coating of the image that, in a way, since [he] was using [his] phone at the time as [his] new paint brush, in a way that was very satisfying, the way the ink – it didn’t sit up on the canvas, it didn’t sit inside the canvas, it just hovered in such a way that [he] had never seen the process of Inkjet conduct itself.” (Boyajian Decl. Ex. 9 at 115:16-116:15; see also Prince Decl. ¶ 23). Plaintiff does not dispute for purposes of this motion that Prince claims to have proceeded as described in Statement 14, but Plaintiff objects to Statement 14 as argumentative and immaterial such as because it purports to describe the general process of developing the New Portraits series, not the specific process used to prepare the Infringing Work. 15. All of the New Portraits are a uniform size. The New Portraits measure 65.75” x 48.75”, and the photographic element of the New Portraits measure approximately 41 x 41 inches, as an homage to Andy Warhol’s portraits in approximately that size. (Prince Decl. ¶ 25). Plaintiff disputes Statement 15 insofar as it is not supported by the cited document: The document does not say that Defendant created his portraits as an homage to Andy Warhol. Plaintiff also objects to Statement 15 as immaterial because it purports to describe Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 5 of 54 6 the general process of developing the New Portraits series, not the specific process used to prepare the Infringing Work. 16. The New Portraits are intended to be frameless, and the canvases were stretched in a way that the paintings wrap-around the wooden stretchers so that they were three-dimensional paintings rather than a two-dimensional photograph, representing the feel of an iPhone. (Prince Decl. ¶¶ 26, 37; Boyajian Decl. Ex. 6 ¶ 32). Plaintiff does not dispute that in his declaration Prince claims to have had the intent and to have taken the actions described in Statement 16, but states that when asked extensively about his process at his deposition, he did not testify that the works were intended to represent the feel of an iPhone. In his deposition, Prince testified as to why he chose the inkjet process and how “this new type of canvas, this was the most important part of creating the New Portraits”. (Ex. 38 (Prince Tr.) at 109:8-110:6, 114:22-119:11.) Plaintiff further disputes Statement 16 because Prince Decl. ¶ 37 does not say anything related to the information listed in Statement 16. Plaintiff further disputes the statement due to its reliance on Boyajian Decl. Ex. 6 ¶ 32 because Lisa Phillips’ testimony is not the product of reliable principles and methods and therefore is inadmissible. Phillips relies on the opinion of Michael Govan, current director of the Los Angeles County Museum of Art (“LACMA”), who states that Prince’s intent behind the New Portrait works was to make the works looks and feel like a smart phone. Phillips does not cite to Prince himself in Boyajian Decl. Ex. 6 ¶ 32. Moreover, Phillips does not cite to any other authority to support her opinion as to how Prince transformed the McNatt photo of Kim Gordon, and instead appears to rely on her own comparison of the works. (Ex. 27 (Phillips Rpt.) ¶ 32.) Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 17. The New Portraits stretcher bars on each New Portrait were separately photographed in a gallery book made to commemorate the New Portraits exhibition at Blum & Poe’s Tokyo, Japan gallery. (Boyajian Decl. Ex. 12 at BLUM0001726). Plaintiff does not dispute Statement 17 for the purposes of this motion but states that it is immaterial to the question of fair use. 18. Prince’s New Portraits series as a whole “comment[s] on the social media, the whole idea of putting up images on a new platform that was available to anyone, to an entire population...” (Boyajian Decl. Ex. 9 at 202:12-15; see also Prince Decl. ¶¶ 10, 12, 31). Plaintiff disputes Statement 18 because it is not consistent with Defendant’s prior testimony and is not supported by credible, admissible evidence. Specifically, Prince previously testified that he was not offering any criticism of social media by his other work in the New Portraits series, Untitled. (See Ex. 38 (Prince Tr.) at 142:15 – 143:5). When asked whether he had a “particular message [he was] trying to convey” in Untitled, Defendant further stated that he wanted to “have fun . . . to make people feel good.” When asked whether there was any other message that he was trying to convey, he stated that he “wanted to make art.” (Id. 143:11-20). Plaintiff further disputes the use of Boyajian Decl. Ex. 9 at 202:12, because it mischaracterizes Defendant’s testimony. In the response cited, Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 6 of 54 7 Defendant was referring to a specific work, not the entire New Portraits series. Moreover, the statement is immaterial insofar as it purports to describe the entire New Portraits series, as opposed to the work at issue here. 19. Prince’s Portrait of Kim Gordon, which incorporates a cropped image of the photograph allegedly taken by Eric McNatt at issue in this case (the “Photograph”), was one of the works in the New Portraits series and was created in a manner similar to that described above. (Ex. 80 (Prince Decl) ¶ 18). Prince searched through Instagram for an image of Kim Gordon until he found an image that he wished to turn into a New Portrait. (Boyajian Decl. Ex. 9 at 181:23-24, 185:6-21, 192:18-193:17, 195:8-24). Plaintiff does not dispute that Prince’s Portrait of Kim Gordon incorporates the photograph taken by Eric McNatt and does not dispute that Prince included Portrait of Kim Gordon in his New Portraits series, but disputes that it was created in the manner and with the intent described in Prince’s declaration, which is inconsistent with the manner and intent described in Prince’s deposition testimony and public statements. Prince states in his declarations that the New Portraits were “intended as a both a serious and an amusing commentary on social media and art”, and “to make people think about the way we present ourselves to the world through social media”. (Ex. 80 (Prince Decl.) ¶¶ 10, 12.) However, when asked whether he was offering any criticism of social media by his work in Untitled, Prince testified, “No.” (Ex. 38 (Prince Tr.) at 143:2-5.) Prince further remarked in his deposition that his intention behind Untitled was “to have fun . . . to make people feel good.” (Ex. 38 (Prince Tr.) at 143:16-17.) As a result, Prince’s intention behind at least one of the New Portraits (as evidenced through his deposition) appears to be more about “want[ing] to make art” and having fun rather than showcasing a serious piece of work commenting on social media and society. Furthermore, Plaintiff states that Prince’s intent in using Plaintiff’s work without permission is immaterial to Defendants’ fair use defense 20. Kim Gordon is a musician, songwriter and visual artist best known for her role as the bassist, guitarist and vocalist of seminal alternative rock band Sonic Youth. (Compl. ¶ 16). Plaintiff does not dispute Statement 20 for purposes of this motion. 21. On or about September 10, 2014, Prince took a mobile screenshot of the image of Ms. Gordon as found online, and posted that screenshot to his own Instagram account, @richardprince4, with the addition of three comments: (1) “Portrait of Kim Gordon” (2) “Kool Thang You Make My Heart Sang You Make Everythang Groovy” and (3) music-themed emojis. (Boyajian Decl. Ex. 9 at 185:6-21; Prince Decl. ¶ 18; Compl. ¶ 22). Plaintiff does not dispute Statement 21 for purposes of this motion. 22. The second comment was a play on Ms. Gordon’s band’s first major label record single, “Kool Thing.” (Compl. ¶ 23; Prince Decl. ¶ 30). Plaintiff does not dispute that Prince states in his declaration that his comment “play[s] off the lyrics of one of her band’s songs,” but states that when Prince was asked Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 7 of 54 8 at his deposition whether this comment was “the lyrics to Wild Thing with Kool Thang substituted for Wild Thing,” Prince testified, “It sounds like gobbledygook to me.” (Ex. 38 (Prince Tr.) at 185:22-186:2.) 23. The image of Kim Gordon that Prince saw online did not have a copyright notice or watermark. (Boyajian Decl. Ex. 5 at 123:16-25; Boyajian Decl. Ex. 9 at 225:24-226:13). Plaintiff disputes Statement 23 because it is not supported by the cited documents. The referenced testimony from Plaintiff’s and Prince’s depositions does not state that the image that Price saw did not have a copyright notice or watermark. Plaintiff further disputes any suggestion that Plaintiff’s work is not entitled to copyright protection or that the presence or absence of a copyright notice, watermark, or attribution is relevant to the copyright protection of the work or the question of fair use. A work is not required to have a copyright notice, watermark, attribution or other physical indication for copyright protection to attach. 17 U.S.C. § 102(a). 24. Prince chose to create a portrait of Kim Gordon because they have been friends for many years. (Prince Decl. ¶¶ 14, 29). Plaintiff does not dispute Statement 24 for purposes of this motion, but states that it is immaterial to the questions presented on Defendant’s motion. 25. By using lyrics to one of her band’s songs, but with a variation on the spelling, Prince intended his comments to be an “inside joke” between Kim Gordon and himself – and others who are familiar with and would recognize the lyric. (Prince Decl. ¶ 30; Boyajian Decl. Ex. 9 at 203:3-204:17). Plaintiff does not dispute that Prince states in his declaration that his comments were intended to be an “inside joke,” but states that at his deposition, Prince characterized his second comment as “gobbledygook” and his third emoji comment as “more gobbledygook.” (Ex. 38 (Prince Tr.) at 185:22-186:5.) 26. The use of words, books, and text play a central role in Prince’s artwork (Boyajian Decl. Ex. 8 ¶ 39), which can be traced back to his interest as a bibliophile and his Jokes series of provocative text-only paintings. (Boyajian Decl. Ex. 9 at 79:20-21; Prince Decl. ¶ 7). Plaintiff does not dispute for purposes of this motion that Prince has described his works as reflected in Statement 26, but states that it is immaterial to the questions presented on Defendant’s motion. 27. In creating his New Portraits, Prince was inspired by artists including Andy Warhol, Willem de Kooning, and Romaine Brooks, and was influenced by hip hop culture of the 1970s and 1980s and the idea of “mash-ups” that create art from mixes of different things. (Prince Decl. ¶ 2). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 8 of 54 9 Plaintiff does not dispute for purposes of this motion that Prince has claimed to have been inspired as reflected in Statement 27, but states that Statement 27 is inconsistent with Prince’s prior testimony. Specifically, Prince testified that “[he] would like to emphasize the fact that [he is] always trying to do something that no one else in the art world has done before.” (Ex. 38 (Prince Tr.) at 130:19-22). He further stated that he “[did]n’t want to paint – primarily because . . . that’s something Warhol would have done,” and that he wanted to differentiate his work. (Ex. 38 (Prince Tr.) at 135:11-15). Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 28. Prince’s concept for the New Portraits series was to reimagine traditional portraiture and create a physical representation of the virtual world of social media. (Id. ¶¶ 12, 19). Plaintiff does not dispute for purposes of this motion that Prince has claimed the intent reflected in Statement 28, but states that Statement 28 is inconsistent with Prince’s prior testimony. Specifically, Prince testified that he came up with the idea for the New Portraits by “[going] on Instagram,” and that he “wasn’t looking for anything” when he went on Instagram. (Ex. 38 (Prince Tr.) at 96:5-11.) Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 29. Prince wanted to convey the different ways that people present themselves on Instagram, and in so doing, make people think about the ways we use social media to present ourselves to the world and to confront broader truths of this new world. He set out to satirize and comment on the way people communicate and relate to each other through social media by presenting a cross-section of people, who he imagined might be part of a band, together, blown up larger-than-life, in a physical representation of the virtual world of social media. (Id. ¶¶ 12, 31). Plaintiff does not dispute for purposes of this motion that Prince has claimed the intent reflected in Statement 29, but states that Statement 29 is inconsistent with Prince’s prior testimony. Specifically, Prince previously testified that he was not offering any criticism of social media by his work. (Ex. 38 (Prince Tr.) at 143:2-5.) Prince testified that his goal was “to have fun,” “to make people feel good,” and “to make art.” (Id. 143:6- 20). This statement contradicts the notion that he set out to make people think about the ways they use social media. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 30. Prince’s vision for the New Portraits series was that each portrait represented a part of a novel, and that when the portraits were exhibited together, they represented a democracy and told a complete story. (Id. ¶ 32; Boyajian Decl. Ex. 9 at 136:12-137:6). Plaintiff does not dispute for purposes of this motion that Prince has claimed the intent reflected in Statement 30, but states that it is immaterial to the questions presented Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 9 of 54 10 on Defendants’ motion because Prince also states in his declaration that “[e]ach work was a complete artwork on its own, and was sold as such.” (Ex. 80 (Prince Decl.) ¶ 32.) Furthermore, the statement is immaterial to the questions presented on Defendant’s motion. 31. Between April 3, 2015 and May 30, 2015, the Portrait of Kim Gordon was publicly exhibited, along with twenty-six other paintings in the New Portraits series, in Blum & Poe’s gallery located in Tokyo, Japan (“Blum & Poe Exhibition”). (Boyajian Decl. Exs. 15 & 16). Plaintiff does not dispute Statement 31 for purposes of this motion. 32. Each of the works exhibited in the Blum & Poe Exhibition depicted a screenshot of a post from Instagram (with the Instagram frame and Prince’s and others’ addition of comments), enlarged and painted on a 65.75” x 48.75” canvas. (Boyajian Decl. Ex. 16). Plaintiff disputes Statement 32 for the purposes of this motion because it is unsupported by the cited document. Not all of the works shown in Boyajian Decl. Ex. 16 contain comments from Instagram users other than Prince. Plaintiff further disputes the term “painted” as the cited document states the New Portraits were “Inkjet on canvas.” Moreover, the statement is immaterial insofar as it purports to describe the entire New Portraits series, as opposed to the work at issue here. 33. Prince’s Portrait of Kim Gordon was one of the twenty-six paintings included in the Exhibition. (Boyajian Decl. Ex. 17 at 247:20-23). Plaintiff does not dispute that Prince’s Portrait of Kim Gordon was one of the twenty-six New Portraits included in the Exhibition, but disputes the term “painting” as the New Portraits were “Inkjet on canvas.” 34. All of the works displayed were list-priced at and were released for sale before the Blum & Poe Exhibition opened on April 3, 2015. (Boyajian Decl. Ex. 16; Poe Decl. ¶ 5). (footnote omitted) Plaintiff does not dispute Statement 34 for purposes of this motion, but states that “released for sale” is vague and ambiguous. Plaintiff states that the specific dates that each work was sold are not included in the cited document. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 35. The Portrait of Kim Gordon was purchased prior to the start date of the Blum & Poe Exhibition. (Boyajian Decl. Ex. 18; Poe Decl. ¶ 6). Plaintiff does not dispute for purposes of this motion that the Poe Declaration states that Portrait of Kim Gordon was purchased prior to the start date of the Exhibition and Boyajian Decl. Ex. 18 shows an invoice dated March 24, 2015, but states that the invoice states that “[t]itle will not pass until payment is received in full” and no cited document indicates when payment was received in full. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 10 of 54 11 36. The Portrait of Kim Gordon was purchased for at the recommendation of Alexander DiPersia for the art collection of Mr. DiPersia and his mother. (Boyajian Decl. Ex. 18; Boyajian Decl. Ex. 19 ¶ 3; Supp. DiPersia Decl. ¶¶ 5, 8). Plaintiff does not dispute for purposes of this motion that Mr. DiPersia states that hie recommended that his mother purchase Portrait of Kim Gordon for their collection, but states that Boyajian Decl. Ex. 18 indicates that Portrait of Kim Gordon was sold to Robert Kaufman. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 37. Approximately one year and four months after the Blum & Poe Exhibition closed, in September 2016, Blum & Poe released a book commemorating the Exhibition (the “Gallery Book”). (Boyajian Decl. Ex. 17 at 306:21-307:5). Plaintiff does not dispute for purposes of this motion that the cited document states that Blum & Poe sold the Gallery Book in September 2016, but disputes the term “commemorating” as unsupported by the cited document. 38. The Gallery Book contained images of each of the New Portraits works on display at the Exhibition, including the Portrait of Kim Gordon. (Boyajian Decl. Ex. 12). The Gallery Book also included the stretcher bars from the back of each New Portrait, installation images depicting portions of the Exhibition, and an excerpt from Prince’s “Birdtalk” which described Prince’s process for making the New Portraits works. (Id.). Plaintiff does not dispute Statement 38 for purposes of this motion. 39. The Gallery Book was created as a historical record of the Exhibition, and no more use of Prince’s Portrait of Kim Gordon was made than necessary for that purpose. (Poe Decl. ¶ 10). Moreover, several other New Portraits works that were included in the Blum & Poe Exhibition are featured on more pages than is the Portrait of Kim Gordon. (Id.) Plaintiff does not dispute for purposes of this motion that Mr. Poe made the statements reflected in Statement 39, but objects to the statement insofar as it makes a legal argument regarding fair use. 40. The Gallery Book was displayed and/or offered for sale at various book fairs and art book stores. (Boyajian Decl. Ex. 17 at 306:21-307:13). Plaintiff does not dispute Statement 40 for purposes of this motion, but states that the cited document also states that the Gallery Book was offered for sale on Blum & Poe’s website. 41. At the time the Gallery Book was offered for sale, all of the New Portraits works included in the Exhibition had already been sold. (Poe Decl. ¶ 11). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 11 of 54 12 Plaintiff disputes Statement 41 because the cited document refers only to the time the Gallery Book was published, not when it was first offered for sale. Furthermore, the statement is immaterial to the questions presented on Defendant’s motion. 42. It is impossible for anyone to have purchased any works from the Blum & Poe Exhibition after seeing the Gallery Book. Plaintiff disputes Statement 42 because it is unsupported by evidence. 43. Eric McNatt is a photographer based in New York. (Compl. ¶ 12). Plaintiff does not dispute Statement 43 for purposes of this motion. 44. Throughout his career, McNatt has primarily been commissioned to take commercial photographs for editorial and advertising purposes. (Id.). Plaintiff disputes Statement 44 as the document does not state that McNatt has “primarily” been commissioned to take commercial photographs for editorial and advertising purposes. The document also includes descriptions of McNatt’s work being selected for inclusion in fine art publications, gallery exhibitions at multiple fine art galleries and benefit auctions. McNatt’s work has also been purchased by a prominent art collector. 45. McNatt has frequently licensed his images for a fee of $100. (Boyajian Decl. Ex. 5 at 72:9-23). Plaintiff disputes Statement 45 because the cited document does not support the statement. McNatt testified that there are some magazines that pay a licensing fee in the $50 to $100 range. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 46. McNatt was paid a license fee per image by the BBC in 2004 (Boyajian Decl. Ex. 27), and for use of a single existing image in a book in 2014. (Boyajian Decl. Ex. 28). Plaintiff disputes Statement 46 for purposes of this motion as the cited documents do not establish that McNatt was paid a license fee per image by the BBC in 2004. Exhibit 27 is an unsigned proposal, which indicates that McNatt would be paid additional fees in certain circumstances. Boyajian Decl. Ex. 27 at EM00000037. Exhibit 28 is also a proposal which does not indicate that it was approved by McNatt. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 12 of 54 13 47. McNatt has also entered into multiple agreements where he relinquished all ownership and copyright rights to his photographs to the entity that commissioned his work. (Boyajian Decl. Exs. 60-67). Plaintiff does not dispute that he has entered into contracts pursuant to which he assigned his ownership and copyright rights to the entity that commissioned the work, but states that Exhibits 65 and 67 are ambiguous as to whether the contracts included a relinquishment of all ownership and copyright rights in the relevant photographs. Furthermore, any agreements with third parties relating to other photographs has nothing to do with Defendants or the photograph at issue here. The statement is immaterial to the questions presented on Defendants’ motion. 48. McNatt’s images have been displayed in a gallery on only two occasions, both in 2009, as a part of group shows. (Boyajian Decl. Ex. 5 at 111:11-113:8; see also Boyajian Decl. Ex. 20). Only one of the photographs included in the group shows sold, for approximately $500. (Boyajian Decl. Ex. 5 at 111:21-113:2). Plaintiff does not dispute that his images were displayed in galleries as part of two group shows in 2009 and that one photograph sold for $500, but states that the cited source does not indicate these were the only occasions in which Plaintiff’s images were displayed in a gallery. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 49. There is no evidence that McNatt has ever had a solo exhibition at a major museum, or had his work acquired by any museum. Plaintiff disputes Statement 49 unsupported by evidence. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 50. McNatt took the Photograph on July 25, 2014 in connection with an interview for publication in Paper Magazine. (Compl. ¶ 16). Plaintiff does not dispute Statement 50 for the purposes of this motion. 51. McNatt was paid $100 by Paper Magazine for both the photoshoot of Kim Gordon and the use of the Photograph. (Boyajian Decl. Ex. 5 at 67:10-20). Plaintiff disputes Statement 51 for the purposes of this motion because it is not supported by the cited document: The document does not say that Plaintiff was paid $100 by Paper Magazine for both the photoshoot and use of the Photograph. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 52. Ms. Gordon was one of 37 artists and icons (referred to as the “Original Gangsters” or “OGs”) selected by Paper for their 30th anniversary issue. (Boyajian Decl. Ex. 49 at 29:20-30:3; Boyajian Decl. Ex. 21). Plaintiff does not dispute Statement 52 for the purposes of this motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 13 of 54 14 53. To ensure McNatt was provided with a written guide for the commissioned images that directed him to comply with the following creative directives: Plaintiff does not dispute that he was provided general guidelines by Paper reflecting what is stated in Statement 53, but states that the cited document does not say the guidelines were to ensure a . Plaintiff further states that Paper’s suggestions were simply starting off points from which McNatt created his own vision. (McNatt Decl. ¶ 2; Ex. 32 (McNatt Tr.) at 86:6-9; see also id. at 90:11-13 (“I photographed her in the way that I would like to photograph her and if it captured that moment, then great.”).) 54. Included with the creative directives were a series of six sample photographs which demonstrated Paper’s art direction for the photoshoot. (Id.). Plaintiff does not dispute Statement 54 for the purposes of this motion, but states that Boyajian Decl. Ex. 23 includes eight sample photographs. 55. According to Paper’s former Editorial Director, McNatt followed the instructions given to him by the magazine in producing a photograph of Ms. Gordon that was in line with the other photographs in the series. (Boyajian Decl. Ex. 49 at 52:5-9). Plaintiff does not dispute that Mr. Boardman stated that in his opinion, Mr. McNatt had followed the instructions that were given to him by Paper Magazine as to how to shoot Ms. Gordon, but states that right after so testifying, Mr. Boardman stated that he could not remember the photograph of Ms. Gordon that was at issue in this case. Plaintiff further states that Paper’s suggestions were simply starting off points from which McNatt created his own vision. (Ex. 32 (McNatt Tr.) at 86:6-9; see also id. at 90:11-13 (“I photographed her in the way that I would like to photograph her and if it captured that moment, then great.”).) 56. The Photograph has not been and would not be displayed at Blum & Poe Gallery, where the Portrait of Kim Gordon was displayed. (Poe Decl. ¶ 8). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 14 of 54 15 Plaintiff does not dispute that Mr. Poe stated that the Photograph is not the kind of work Blum & Poe would exhibit in its galleries, but disputes Statement 56 insofar as it makes any legal argument about whether display of Portrait of Kim Gordon constituted display of McNatt’s photograph. 57. McNatt himself never chose to put the image of his Photograph in the Instagram frame prior to the time Prince created his Portrait of Kim Gordon. (Boyajian Decl. Ex. 5 at 265:4-13; Boyajian Decl. Ex. 54 ¶ 4). Plaintiff disputes Statement 57 for purposes of this motion because it is not supported in the cited documents: The documents do not say that McNatt never put his Photograph in an Instagram frame. To the contrary, McNatt previously licensed Paper magazine to publish his photograph on its Instagram account (Ex. 2 (Compl.) ¶ 18; see Boyajian Decl. Ex. 29), and McNatt may at some point choose to showcase Kim Gordon I as part of an exhibition of works posted on Instagram. (McNatt Decl. ¶ 10.) Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 58. An image of the Photograph was posted on Paper’s Instagram page on September 9, 2014. (See Boyajian Decl. Ex. 29). Plaintiff does not dispute Statement 58 for the purposes of this motion, but states that this publication was pursuant to license from McNatt and included attribution to McNatt. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 59. An image of the Photograph was also published on Paper’s website on September 9, 2014 alongside the magazine’s interview with Ms. Gordon. (See Boyajian Decl. Ex. 30). Plaintiff does not dispute Statement 59 for the purposes of this motion, but states that this publication was pursuant to license from McNatt and included attribution to McNatt. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 60. A link to the Paper Magazine article was posted on McNatt’s Twitter page on September 10, 2014, and Ms. Gordon replied to McNatt’s Twitter post on the same date. (See Boyajian Decl. Ex. 31). Plaintiff does not dispute Statement 60 for the purposes of this motion, but states that the statement is immaterial to the questions presented on Defendants’ motion. 61. Ms. Gordon also posted an image from Paper Magazine’s article—which included an image of the Photograph—to her own Instagram page on September 10, 2014. (See Boyajian Decl. Ex. 32). Plaintiff does not dispute Statement 61 for the purposes of this motion, but states that the statement is immaterial to the questions presented on Defendants’ motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 15 of 54 16 62. On September 13, 2014, McNatt posted an image of the Photograph from Paper Magazine’s article to his own Instagram page. (Boyajian Decl. Ex. 33). Plaintiff does not dispute Statement 62 for the purposes of this motion, but states that the statement is immaterial to the questions presented on Defendants’ motion. 63. McNatt currently displays a digital image of the Photograph on his public website. (Boyajian Decl. ¶ 2 & Ex. 1). To this day, there is no copyright notice or watermark embedded in the image of the Photograph on McNatt’s website. Plaintiff does not dispute Statement 63 for the purposes of this motion, but disputes any suggestion that such a watermark or notice is required for copyright protection of McNatt’s work. Plaintiff further states that the page of McNatt’s website where the photograph Kim Gordon I appears includes a copyright notice, and U.S. copyright law does not require a copyright notice or watermark to claim a valid copyright (17 U.S. Code § 401). Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 64. McNatt’s website also includes a PDF Portfolio Builder tool to “Make a PDF” from a library of his digital images. (Boyajian Decl. ¶ 3 & Ex. 2). By clicking on “Download”, the image(s) selected by the user may be downloaded free of charge, without any watermark or copyright symbol embedded in the images. (Id.). The Photograph is one such image that can be downloaded for free from McNatt’s website without any watermark or copyright symbol embedded in the image (although there is a notice on a separate page preceding the Photograph). (Id.). Plaintiff does not dispute Statement 64 for the purposes of this motion, but adds that the described “notice on a separate page preceding the Photograph” is in fact a copyright notice on the page from which the downloader selects which photographs to download, and immediately below the “Download” button is a notice that states “© Eric McNatt –All Rights Reserved”. (Boyajian Decl. Ex. 2). Plaintiff further adds that U.S. copyright law does not require a copyright notice or watermark to claim a valid copyright (17 U.S. Code § 401). Plaintiff further disputes the statement that the images may be “downloaded free of charge” insofar as it implies that a license is not needed or permission is not required to use Plaintiff’s work. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 65. At the time Paper and Kim Gordon posted an image of the Photograph to Instagram, Instagram’s Terms of Use in effect provided: [Y]ou hereby grant to Instagram a non-exclusive, fully paid and royalty- free, transferable, sublicensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). (Boyajian Decl. Ex. 34). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 16 of 54 17 Plaintiff does not dispute that Statement 65 quotes one paragraph of Instagram’s Terms of Use as printed in Boyajian Decl. Ex. 34, but states that Boyajian Decl. Ex. 34 indicates that it was printed on January 17, 2018 so it is not clear that these same Terms of Use were in effect at the time Paper and Kim Gordon posted an image of the Photograph to Instagram. Furthermore, Plaintiff states that the license is granted to Instagram, and disputes the statement insofar as it suggests that this paragraph grants a license to all Instagram users for all content posted on Instagram. 66. On September 11, 2014, McNatt posted a screenshot of Prince’s Instagram post containing the Portrait of Kim Gordon to his Facebook page, and spoke of Instagram’s “copyright rules,” and called Instagram a “treasure trove” of copyrighted material). (Boyajian Decl. Ex. 43). Plaintiff disputes Statement 66 because the cited document shows only a screenshot of Prince’s comment “Portrait of Kim Gordon, ink jet of Canvas, 2014” but does not show that McNatt posted a screenshot of the entire post or the work. Plaintiff further states that he testified his comment about Instagram’s copyright rules was referring to the fact that users provide a license to Instagram when they post images on the platform. (Ex. 32 (McNatt Tr.) at 48:3-17.) Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 67. Images of McNatt’s Photograph and other of his photographs have been reproduced without his express permission and without attribution or a photo credit on multiple occasions over the years. For example, the Photograph was posted to Paper Magazine’s Tumblr blog without attribution on September 10, 2014. (Boyajian Decl. Ex. 35). The image posted on Paper’s Tumblr was subsequently reblogged 90 times, including by Tumblr sites called “awesome girls in bands,” “women of noise,” and “grungebook.” (Boyajian Decl. Exs. 36-38). Plaintiff disputes Statement 67 for the purposes of this motion because it is not supported by the cited documents: The documents do not indicate that McNatt has not given permission for the reproductions of his photograph. Moreover, the reference to “other of [McNatt’s] photographs” is not applicable to the photograph at issue in this case. Plaintiff further states that Statement 67 is immaterial to the questions presented on Defendants’ motion. 68. The Photograph also appears multiple times on Pinterest without attribution. (Boyajian Decl. Exs. 39-41). Plaintiff does not dispute that the cited documents show McNatt’s photograph on Pinterest, but states that it is ambiguous from the exhibits whether these are three different instances of reproduction or all the same post, and it is ambiguous whether the photograph would indicate attribution to McNatt once the user clicked on the link. Plaintiff further disputes the Statement insofar as it implies that Defendants did not need permission or a license to use Plaintiff’s photograph. Plaintiff further states that a third party’s use of Plaintiff’s photograph without permission has no bearing on Prince’s and Blum & Poe’s Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 17 of 54 18 use of the photograph. Moreover, Statement 68 is immaterial to the questions presented on Defendants’ motion. 69. Additionally, in 2015, the image was used without attribution by the Sonic Youth Facebook page to wish Ms. Gordon a happy birthday. (Boyajian Decl. Ex. 42). Plaintiff does not dispute that the image was used by the Sonic Youth Facebook page, but disputes the Statement insofar as it implies that Defendants did not need permission or a license to use Plaintiff’s photograph. Plaintiff further states that a third party’s use of Plaintiff’s photograph without permission has no bearing on Prince’s and Blum & Poe’s use of the photograph. Moreover, Statement 68 is immaterial to the questions presented on Defendants’ motion. 70. Moreover, on or about February 16, 2016, Ms. Gordon posted a photograph on Instagram showing her holding a study of Prince’s Portrait of Kim Gordon, which uses a portion of an image of the Photograph. (Compl. ¶ 37). Plaintiff does not dispute that Ms. Gordon posted a photograph on Instagram showing her holding a study of Prince’s Portrait of Kim Gordon, but states that Portrait of Kim Gordon uses nearly the entirety of McNatt’s Photograph. Plaintiff disputes the Statement insofar as it implies that Defendants did not need permission or a license to use Plaintiff’s photograph. Plaintiff further states that a third party’s use of Plaintiff’s photograph without permission has no bearing on Prince’s and Blum & Poe’s use of the photograph. Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 71. 72. There is no evidence that McNatt has taken legal action against other individuals who have used images of his photographs without authorization. Plaintiff disputes Statement 72 because it is unsupported, immaterial to the questions presented on Defendants’ motion and has no bearing on Plaintiff’s rights in his photograph or his ability to prosecute Prince’s commercial exploitation of his work. UMG Recordings, Inc. v. MP3.Com, Inc., 92 F. Supp. 2d 349, 352-53 (S.D.N.Y. 2000). There is no requirement in copyright law “that a plaintiff must sue all infringers who may be liable.” Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 18 of 54 19 Broad. Music, Inc. v. Peppermint Club, Inc., No. 83 Civ. 694, 1985 WL 6141, at *4 (N.D. Ohio 1985). 73. McNatt has never created or sold any prints of the Photograph, nor has he pursued any large-scale public display of the Photograph. (See generally Compl. ¶¶ 16- 21). Plaintiff disputes Statement 73 because it is not supported by the cited document: The document does not indicate that McNatt has never created or sold any prints of the Photograph or pursued any large-scale public display of the Photograph. Plaintiff further states that he has received requests to license Kim Gordon I on multiple occasions from multiple publications, including Rolling Stone, Vogue.com, and Billboard (McNatt Decl. ¶ 5), and that he has been considering becoming more active in the fine art space and is interested in selling his work to collectors and exhibiting his work in galleries. (Id. ¶ 4.) 74. McNatt cannot identify any opportunities that he lost because of Prince’s Portrait of Kim Gordon (Boyajian Decl. Ex. 5 at 137:18-138:6). Plaintiff disputes Statement 74 because the quoted characterization does not set forth an accurate statement of McNatt’s testimony. McNatt indicated only that there were no opportunities he lost where he was specifically told it was because of Prince’s use of the Photograph. Furthermore, Plaintiff “need not show that their [works] have suffered an actual drop in sales. To negate fair use one need only show that if the challenged use ‘should become widespread, it would adversely affect the potential market for the copyrighted work.’” Penguin Random House LLC v. Colting, 270 F. Supp. 3d 736, 752 (S.D.N.Y. 2017) (quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)). If the kind of actions Prince took become commonplace, it would displace the present or possible markets that Plaintiffs has developed, or may develop, to profit and secure commercial opportunities from licensing or selling Kim Gordon I. (McNatt Decl. ¶ 11.) Plaintiff has been considering becoming more active in the fine art space and is interested in selling his work to collectors and exhibiting his work in galleries. (Id. ¶ 4.) A collector of fine art could choose to buy Prince’s Portrait of Kim Gordon instead of a print of Kim Gordon I, which would damage the market for Plaintiff’s work and cause him harm. (Id.) Plaintiff further states that it is possible that someone could choose to license Prince’s Portrait of Kim Gordon instead of Plaintiff’s photograph Kim Gordon I, particularly given that Prince’s Portrait of Kim Gordon displays an unaltered, unobscured copy of the majority of Plaintiff’s photograph. (Id. ¶ 5.) 75. Since he took the Photograph in July 2014, McNatt has licensed the Photograph on only one other occasion, in February 2015 to VOGUE.com for . (Boyajian Decl. Ex. 26; Boyajian Decl. Ex. 5 at 68:10-20). Plaintiff does not dispute Statement 75 for the purposes of this motion, but states there have been multiple additional licensing inquiries for the Photograph. (See Boyajian Decl. Exs. 24, 25, 45; McNatt Decl. ¶ 5.) Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 19 of 54 20 76. Other inquiries for use of the Photograph were made by representatives of Billboard in February 2015 (Boyajian Decl. Ex. 25), Rolling Stone in February 2015 (Boyajian Decl. Ex. 24), and VOGUE.com in March 2016 (Boyajian Decl. Ex. 45), but none panned out, in part because McNatt understood that “it was going to take too long” to obtain Ms. Gordon’s permission to re-use the image. (Boyajian Decl. Ex. 5 at 207:4- 22). Plaintiff does not dispute that inquiries for use of his photograph were made by representatives of Billboard in February 2015, Rolling Stone in February 2015, and VOGUE.com in March 2016. Plaintiff states that the testimony relating to McNatt’s understanding that “it was going to take too long” related only to the Rolling Stone request, and McNatt explained that he thought that contacting Ms. Gordon and retouching the photographs needed to be done within a 24 hour period, which he did not feel was possible. Furthermore, Plaintiff disputes the statement insofar as it makes any legal argument about the necessity of receiving Ms. Gordon’s permission before licensing the photograph. As explained in Boyajian Decl. Exhibit 24, Plaintiff noted that he wanted to run the Rolling Stone request by Ms. Gordon for personal reasons because she “means the world to me”, not due to any legal requirement. Plaintiff did not and does not require Ms. Gordon’s permission to license the photograph, because where a copyright owner’s “use of plaintiffs’ likenesses [does] not extend beyond the use of the copyrighted material” containing that likeness, a person pictured in a photograph does not have the right to prevent the copyright holder from displaying and licensing the photograph. Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137 (C.D. Cal. 2015), aff’d, 853 F.3d 1004 (9th Cir. 2017). 77. On September 11, 2014, after learning about Prince’s Portrait of Kim Gordon, McNatt posted a screenshot of Prince’s Instagram post containing the Portrait of Kim Gordon to his Facebook page, and commented on Prince’s use. (Boyajian Decl. Ex. 43). Plaintiff disputes Statement 66 because the cited document shows only a screenshot of Prince’s comment “Portrait of Kim Gordon, ink jet of Canvas, 2014” but does not show that McNatt posted a screenshot of the entire post or the work. Plaintiff further states that McNatt’s comment reflected that Prince had stolen his work and was a “noted copyright offender.” Furthermore, the statement is immaterial to the questions presented on Defendants’ motion. 78. McNatt did not obtain a written right of publicity waiver from Kim Gordon to use her name, image, and likeness commercially. (Boyajian Decl. Ex. 5 at 67:21-68:13; 190:25-191:11). Plaintiff does not dispute that he did not obtain a written right of publicity waiver from Ms. Gordon, but disputes the statement insofar as it makes a legal argument that such a waiver was required because Plaintiff did not and does not require Ms. Gordon’s permission to license the photograph. Where a copyright owner’s “use of plaintiffs’ likenesses [does] not extend beyond the use of the copyrighted material” containing that likeness, a person pictured in a photograph does not have the right to prevent the copyright holder from displaying and licensing the photograph. Maloney v. T3Media, Inc., 94 F. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 20 of 54 21 Supp. 3d 1128, 1137 (C.D. Cal. 2015), aff’d, 853 F.3d 1004 (9th Cir. 2017). Furthermore, McNatt’s testimony from 67:21-68:13 was specifically in reference to the Vogue reuse and McNatt testified that he believed he had the right to reprint the photograph. McNatt’s testimony from 190:25-191:11 was in reference to a specific model release that McNatt had been asked to use for a different photo shoot. 79. Ms. Gordon confirmed that she did not give McNatt permission to use her image for any purpose other than the Paper Magazine article and does not consent to his commercial use of her image and likeness. (Gordon Decl. ¶ 8). Plaintiff disputes Statement 79 for the purposes of this motion because it is not supported by the cited document. The cited paragraph does not say that Ms. Gordon does not consent to McNatt’s commercial use of her image and likeness. Furthermore, Plaintiff disputes the statement insofar as it makes any legal argument about the necessity of receiving Ms. Gordon’s permission before licensing the photograph. Plaintiff did not and does not require Ms. Gordon’s permission to license the photograph, because where a copyright owner’s “use of plaintiffs’ likenesses [does] not extend beyond the use of the copyrighted material” containing that likeness, a person pictured in a photograph does not have the right to prevent the copyright holder from displaying and licensing the photograph. Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137 (C.D. Cal. 2015), aff’d, 853 F.3d 1004 (9th Cir. 2017). 80. McNatt knows that he lacks sufficient rights to make commercial use of the Photograph. Plaintiff disputes Statement 80 because it is not supported by the cited document: The document does not say that McNatt knows he lacks sufficient rights to make commercial use of the Photograph in any circumstance, 81. Additionally, in an email dated February 10, 2015, McNatt requested that Samantha Xu of Billboard not send the link of photographs to Ms. Gordon’s representatives. (See Boyajian Decl. Ex. 25). He thereafter contacted Ms. Gordon’s publicist Gaby Skolnek on February 11, 2015 and requested Ms. Gordon’s permission to Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 21 of 54 22 use images from the photoshoot for syndication purposes. (See Boyajian Decl. Ex. 69). The request was never granted. Plaintiff does not dispute that in an email dated February 10, 2015, McNatt requested that Samantha Xu of Billboard not send the link of photographs to Ms. Gordon’s representatives and that he contacted Gaby Skolnek on February 11, 2015 stating that he was “wondering if you and Kim would OK a few images from the shoot for syndication purposes.” Plaintiff disputes Statement 81 insofar as it makes any legal argument about the necessity of receiving Ms. Gordon’s permission before licensing the photograph. Plaintiff did not and does not require Ms. Gordon’s permission to license the photograph, because where a copyright owner’s “use of plaintiffs’ likenesses [does] not extend beyond the use of the copyrighted material” containing that likeness, a person pictured in a photograph does not have the right to prevent the copyright holder from displaying and licensing the photograph. Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137 (C.D. Cal. 2015), aff’d, 853 F.3d 1004 (9th Cir. 2017). McNatt further disputes that the request was never granted as it is unsupported by any evidence. 82. Despite not receiving Ms. Gordon’s permission, McNatt licensed the Photograph to VOGUE.com in February 2015. (Boyajian Decl. Ex. 26; Boyajian Decl. Ex. 5 at 67:21-68:21.) Plaintiff does not dispute that he licensed the Photograph to VOGUE.com in February 2015, but disputes Statement 82 insofar as it makes any legal argument about the necessity of receiving Ms. Gordon’s permission before licensing the photograph, because Plaintiff did not and does not require Ms. Gordon’s permission to license the photograph. Plaintiff states that he testified that he did not believe he needed permission to license the Photograph to VOGUE.com (Ex. 32 (McNatt Tr.) 67:25-68:10), and Plaintiff did not need permission. Where a copyright owner’s “use of plaintiffs’ likenesses [does] not extend beyond the use of the copyrighted material” containing that likeness, a person pictured in a photograph does not have the right to prevent the copyright holder from displaying and licensing the photograph. Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137 (C.D. Cal. 2015), aff’d, 853 F.3d 1004 (9th Cir. 2017). 83. Ms. Gordon does not approve of any further potential uses by McNatt of the Photograph. (Gordon Decl. ¶ 14). Plaintiff does not dispute that Ms. Gordon states that she does not approve of any further potential uses by McNatt of the Photograph, but disputes Statement 83 insofar as it makes any legal argument about the necessity of receiving Ms. Gordon’s permission before licensing the photograph. McNatt does not need Ms. Gordon’s permission to license the photograph. Where a copyright owner’s “use of plaintiffs’ likenesses [does] not extend beyond the use of the copyrighted material” containing that likeness, a person pictured in a photograph does not have the right to prevent the copyright holder from displaying and licensing the photograph. Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137 (C.D. Cal. 2015), aff’d, 853 F.3d 1004 (9th Cir. 2017). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 22 of 54 23 84. McNatt uses the internet and social media to promote his work. (Boyajian Decl. Ex. 5 at 7:16-8:19, 40:11-16, 46:5-9). Plaintiff does not dispute Statement 84 for the purposes of this motion, but states that it is immaterial to the questions presented on Defendants’ motion. 85. McNatt has also posted photographs on social media that he did not take, without permission from the photographers, even after he first raised concerns with Prince’s use in this case. (e.g., id. at 19:23-20:16; 240:20-245:23; 247:22-249:2). Plaintiff does not dispute that he has posted photographs that he did not take on social media, but states that Statement 85 is immaterial to the questions presented on Defendant’s motion. 86. 87. Social media has revolutionized the ways in which people communicate with each other, express themselves, and engage in creative work. (Boyajian Decl. Ex. 3 ¶ 12). Plaintiff does not dispute that the cited document includes the language in Statement 87, but states that Statement 87 is immaterial to the questions presented on Defendants’ motion. 88. Image-sharing is a key feature of social media. (Id. ¶ 15). Plaintiff disputes Statement 88 because it is not supported by the cited document. Paragraph 15 of Ms. Marwick’s report does not say that “image-sharing is a key feature of social media.” Plaintiff further states that Statement 88 is immaterial to the questions presented on Defendants’ motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 23 of 54 24 89. Depending on the context and circumstances of a given post, the same piece of content can be imbued with different meaning depending on how, where, when, and by whom it is communicated. (Id. ¶ 61). Plaintiff does not dispute that the cited document states that “the same piece of content can have radically different meanings depending on where, when, and by whom it was deployed,” but objects to this statement as improper expert opinion because it provides a factual narrative on lay matters. Plaintiff further states that Statement 89 is immaterial to the questions presented on Defendants’ motion. 90. The vast majority of content circulating through social media is removed from its original context. (Id. ¶¶ 14-15). Plaintiff does not dispute that the cited document states that “most internet content is removed from its original context as it circulates through social media” but objects to this statement as improper expert opinion. Plaintiff further states that Statement 90 is immaterial to the questions presented on Defendants’ motion. 91. In general, social media users who do not want an image to be circulated freely can choose not to post an image, to post it privately, or to post it with a copyright or watermark. (Id. ¶ 15). People can also choose to have private accounts altogether, restricting who can see any content about them. (Id. ¶ 72). Plaintiff does not dispute that the cited document states that “people who do not wish their images to circulate often choose not to post them to the internet at all; to post them only to a private account; or to append a watermark or copyright notice to the image itself” but objects to this statement as improper expert opinion. Insofar as the statement suggests social media users must take the actions listed in order to secure their copyrights, it is inconsistent with copyright law. Plaintiff further states that Statement 91 is immaterial to the questions presented on Defendants’ motion. 92. Many social media users, and specifically, those who post works for commercial or promotional purposes, post content with the expectation, or even the goal, that it will be virally reposted, re-distributed, and commented on, by persons known and unknown to the original poster in order to become better known. (Id. ¶ 15; Boyajian Decl. Ex. 4 at 235:19-239:21, 249:15-20). Plaintiff disputes Statement 92 because it is not supported by the cited documents. While Ms. Marwick states that “a principal goal of those who use social media’ is to “disseminate images both for self-promotion and self-expression”, she does not state that the goal is to for their work to be reposted or re-distributed. (Ex. 17 (Marwick Rep.) ¶ 15.) Mr. Harrison stated that while Twitter users may “retweet” images that they did not create themselves, on Instagram “there is this implied idea of you’re supposed to take a picture to post on Instagram.” (Ex. 36 (Harrison Tr.) at 239:12-24.) Plaintiff further states that Statement 92 is immaterial to the questions presented on Defendants’ motion. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 24 of 54 25 II. COUNTERSTATEMENT OF FACTS Plaintiffs respectfully submit the following counterstatement of material facts, which preclude the entry of summary judgment in favor of Defendants.2 A. Parties 1. Donald Graham is a visual artist engaged in fine art and commercial photography, specializing in portraiture. (Graham Decl. ¶ 1; Ex. 1 (Graham Compl.) ¶¶ 2, 14; Ex. 9 (Bogre Rpt.) ¶ 10.) 2. In addition to creating works of art for exhibition in fine art galleries, Graham has been commissioned to take photographs for editorial and advertising purposes and has licensed photographs to numerous publications. (Ex. 1 (Graham Compl.) ¶ 14; Ex. 56 (Clients, DONALD GRAHAM, https://donaldgraham.com/ABOUT/Clients/1/caption (last visited June 6, 2018)); Ex. 31 (Graham Tr.) at 211:5-24; Ex. 9 (Bogre Rpt.) ¶ 10.) 3. Graham’s fine artwork has been displayed and is still held by the Metropolitan Museum of Art, is held by the International Center of Photography, and is sold by A. Galerie in Paris. (Graham Decl. ¶ 7; Ex. 56 (Clients, DONALD GRAHAM, https://donaldgraham.com/ABOUT/Clients/1/caption (last visited June 6, 2018)); Ex. 31 (Graham Tr.) at 120:15-121:2.) 4. Graham’s editorial and commercial work has appeared in and on the cover of more than one hundred magazines including Vanity Fair, Elle, Vogue, Paper, Time and Sports Illustrated. (Ex. 1 (Graham Compl.) ¶ 14; Ex. 56 (Clients, DONALD GRAHAM, https://donaldgraham.com/ABOUT/Clients/1/caption (last visited June 6, 2018)); Ex. 31 (Graham Tr.) at 121:24-122:4; Ex. 9 (Bogre Rpt.) ¶ 11.) 5. Where Graham has been engaged to create a portrait by a client other than the subject of that portrait (e.g., a fashion magazine), Graham has on numerous occasions supplied copies of his work to the subject either for a monetary fee or gratis with the intention of fostering future business opportunities, including to Academy Award-winner Charlize Theron, two-time Academy Award-nominee Djimon Hounsou, former U.S. Secretary of Defense Donald Rumsfeld and American civil rights figure Gordon Parks. 2 In support of this Counterstatement, Plaintiffs rely on the Declaration of Caitlin Fitzpatrick and the exhibits thereto. The Exhibits to the Fitzpatrick Declaration are cited herein as “Ex. __”. Many of the propositions included herein are supported by reference to Graham’s photograph Rastafarian Smoking a Joint and McNatt’s photograph Kim Gordon I (collectively, the “Plaintiffs’ Works”) and Prince’s Untitled and Portrait of Kim Gordon (collectively, the “Prince Works”). For ease of review and avoidance of repetition, we do not repeat them after every proposition but rather incorporate them by reference. Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 25 of 54 26 (Ex. 1 (Graham Compl.) ¶ 14; Ex. 56 (Clients, DONALD GRAHAM, https://donaldgraham.com/ABOUT/Clients/1/caption (last visited June 6, 2018)).) 6. Eric McNatt is a commercial, editorial and fine art photographer, specializing in portraiture. (Ex. 2 (McNatt Compl.) ¶ 12; Ex. 57 (Bio, ERIC MCNATT, https://ericmcnatt.com/BIO/1/caption (last visited June 6, 2018)); Ex. 32 (McNatt Tr.) at 108:16-109:19; Ex. 9 (Bogre Rpt.) ¶ 13.) 7. McNatt has been commissioned to take photographs for editorial and advertising purposes and has licensed photographs to numerous publications. (Ex. 2 (McNatt Compl.) ¶ 12; Ex. 57 (Bio, ERIC MCNATT, https://ericmcnatt.com/BIO/1/caption (last visited June 6, 2018)); Ex. 32 (McNatt Tr.) at 108:16-109:19; Ex. 9 (Bogre Rpt.) ¶ 13.) 8. McNatt’s photography has appeared in over one hundred different magazines worldwide including Entertainment Weekly, ESPN-The Magazine, Esquire, Fortune, Glamour, GQ, New York Magazine, The New York Times Magazine, Paper, People, Spin, Time, Vogue and Wired, and in advertising campaigns for corporate clients in the music, television and other industries. (Ex. 2 (McNatt Compl.) ¶ 12; Ex. 57 (Bio, ERIC MCNATT, https://ericmcnatt.com/BIO/1/caption (last visited June 6, 2018)); Ex. 32 (McNatt Tr.) at 108:16-109:19; Ex. 9 (Bogre Rpt.) ¶ 13.) 9. McNatt’s work has been selected for inclusion in fine art publications (Gallery Lelong), gallery exhibitions (Randall Scott Gallery, Stricola Contemporary) and esteemed benefit auctions like Aperture, a longstanding not-for-profit foundation devoted to the publication of fine art photography. (Ex. 2 (McNatt Compl.) ¶ 12; Ex. 57 (Bio, ERIC MCNATT, https://ericmcnatt.com/BIO/1/caption (last visited June 6, 2018)); Ex. 32 (McNatt Tr.) at 109:13-113:8; Ex. 9 (Bogre Rpt.) ¶ 13.) 10. At least one of McNatt’s photographs is included in the collection of prominent art collector Joseph Baio. McNatt has been nominated and/or selected for numerous awards, including an American Photography award (2016) and a New York Photo festival Book Award (2009). (Ex. 2 (McNatt Compl.) ¶ 12; Ex. 57 (Bio, ERIC MCNATT, https://ericmcnatt.com/BIO/1/caption (last visited June 6, 2018)); Ex. 9 (Bogre Rpt.) ¶ 13.) 11. B. Graham’s Work 12. Graham, at his own expense, spent approximately two weeks in May of 1996, trekking through the villages and mountains of Jamaica, carrying with him his photography equipment and mobile studio, to capture photographs of the Rastafarian people. (Ex. 1 (Graham Compl.) ¶ 19; Ex. 31 (Graham Tr.) at 115:6-9; Ex. 9 (Bogre Rpt.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 26 of 54 27 ¶ 15.) Graham’s efforts culminated in a series of photographic works, including Rastafarian Smoking a Joint. (Ex. 1 (Graham Compl.) ¶ 19; Ex. 9 (Bogre Rpt.) ¶ 15.) 13. Rastafarian Smoking a Joint was first published in August 1998 and, in recognition of its artistic merit, was published under license in Communication Arts magazine’s “Photography Annual 39” as part of Graham’s five-photograph, award- winning series in the “Unpublished” category for that year. (Ex. 1 (Graham Compl.) ¶ 21; Ex. 9 (Bogre Rpt.) ¶ 16.) 14. Graham originally captured Rastafarian Smoking a Joint on black and white film. Graham sells prints of Rastafarian Smoking a Joint exclusively through A. Galerie, located at Rue Leonce Reynaud, 4 75116 Paris, France (“A. Galerie”) or through his studio, in limited editions and in limited sizes. (Ex. 1 (Graham Compl.) ¶ 22; Ex. 31 (Graham Tr.) at 67:16 - 68:12; 287:21; Ex. 9 (Bogre Rpt.) ¶ 17.) Rastafarian Smoking a Joint is available in limited editions of eight prints, size 4 ft. by 5 ft., and 25 prints, size 20 in. by 24 in. (Ex. 1 (Graham Compl.) ¶ 22; Ex. 31 (Graham Tr.) at 95:9-18; Ex. 9 (Bogre Rpt.) ¶ 17.) Graham sold prints of Rastafarian Smoking a Joint in both sizes prior to commencing this litigation, one of which is in the collection of renowned art collector Henry Buhl. (Ex. 1 (Graham Compl.) ¶ 22; Ex. 31 (Graham Tr.) at 133:2-13; Ex. 9 (Bogre Rpt.) ¶ 17.) 15. Graham took the photograph himself and made all creative decisions concerning its composition. (Ex. 58 (Graham’s Supplemental R&Os to Prince’s First Set of Interrogatories) Response to Interrogatory No. 1; Graham Decl. ¶ 2.) 16. Graham’s fine art Internet website, donaldgrahamfineart.com, contains two digital reproductions of Rastafarian Smoking a Joint in the “Portraits” and “Work in Museums” sections, in each case in close proximity to the “© Donald Graham” notice. Another digital reproduction of Rastafarian Smoking a Joint exists on the Internet website donaldgraham.com in the “Portraits” section, also in close proximity to the “© Donald Graham” notice. (Ex. 1 (Graham Compl.) ¶ 24; Ex. 78 (Portraits, DONALD GRAHAM, https://donaldgraham.com/PORTRAITS/1/thumbs (last visited June 6, 2018)); Ex. 59 (Graham’s R&Os to Prince’s First Set of IROGs and RFAs), Response to Request No. 9; Ex. 9 (Bogre Rpt.) ¶ 19.) C. McNatt’s Work 17. On July 25, 2014, McNatt photographed Kim Gordon, a musician, songwriter and visual artist best known for her role as the bassist, guitarist and vocalist of seminal alternative rock band Sonic Youth (“Ms. Gordon”), in conjunction with an interview for publication in Paper, a fashion and pop culture magazine. (Ex. 2 (McNatt Compl.) ¶ 16; Ex. 9 (Bogre Rpt.) ¶ 20.) During this session, at Ms. Gordon’s home in Northampton, Massachusetts, McNatt captured a photograph entitled Kim Gordon I among other photographs of Ms. Gordon. (Ex. 2 (McNatt Compl.) ¶ 16; Ex. 9 (Bogre Rpt.) ¶ 20.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 27 of 54 28 18. For the photography session, McNatt purchased and/or provided his own equipment, including a roll of seamless grey nine-foot background paper which appears behind Ms. Gordon in Kim Gordon I, a portable seamless hanging system and Autopoles for light and background set-up. (Ex. 2 (McNatt Compl.) ¶ 17; Ex. 32 (McNatt Tr.) at 101:9-17; Ex. 9 (Bogre Rpt.) ¶ 21.) 19. McNatt created the photograph Kim Gordon I in color using a Canon EOS 6D 20.2 MP SLR digital camera and subsequently converted it to black and white. (McNatt Decl. ¶ 2; Ex. 2 (McNatt Compl.) ¶ 16; Ex. 9 (Bogre Rpt.) ¶ 20.) 20. McNatt spent approximately three hours shooting Ms. Gordon, approximately six hours traveling to and from Ms. Gordon’s home and another approximately twelve hours in post-production (including directing the editing, retouching, processing and conversion work), culminating in the publication version of Kim Gordon I. (McNatt Decl. ¶ 2; Ex. 2 (McNatt Compl.) ¶ 17; Ex. 9 (Bogre Rpt.) ¶ 21.) 21. While Paper magazine gave McNatt general creative guidelines, the ultimate photograph represented McNatt’s own vision for the work. (Ex. 32 (McNatt Tr.) at 85:23-86:9; McNatt Decl. ¶ 2.) 22. Kim Gordon I was first published on or about September 9, 2014 in Paper’s thirtieth anniversary edition, online and in print, and on an Instagram account controlled by Paper. (Ex. 2 (McNatt Compl.) ¶ 18; Ex. 60 (Kim Gordon: The Queen of Noise, PAPER MAG. (Sept. 9, 2014), http://www.papermag.com/kim-gordon-the-queen- of-noise-1427387446.html); Ex. 9 (Bogre Rpt.) ¶ 22.) On or about February 24, 2015, Kim Gordon I was republished to Paper’s Instagram account. (Ex. 2 (McNatt Compl.) ¶ 18; Ex. 61 (Paper Magazine Instagram Post); Ex. 9 (Bogre Rpt.) ¶ 22.) In each case, Paper published Kim Gordon I under license from McNatt and with a credit acknowledging McNatt’s authorship. (Ex. 2 (McNatt Compl.) ¶ 18; Ex. 32 (McNatt Tr.) at 116:23-117:16; Ex. 9 (Bogre Rpt.) ¶ 22.) 23. In February 2015, McNatt licensed Kim Gordon I to the website Vogue.com for a one-time use. (Ex. 2 (McNatt Compl.) ¶ 20; Ex. 9 (Bogre Rpt.) ¶ 23.) Kim Gordon I appeared on Vogue.com on or about February 20, 2015 with a credit acknowledging McNatt’s authorship. (Ex. 2 (McNatt Compl.) ¶ 20; Ex. 62 (Rebecca Bengal, #JeSuisKim: Why Kim Gordon and Her New Memoir Will Outlive the Lana Del Rey Twitter Controversy, VOGUE (Feb. 20, 2015), https://www.vogue.com/article/kim- gordon-interview-girl-in-a-band-memoir); Ex. 9 (Bogre Rpt.) ¶ 23.) 24. McNatt has published digital copies of Kim Gordon I for the purpose of soliciting business opportunities to (1) his Internet website, ericmcnatt.com, (ii) his Instagram account, “@ericmcnatt”, and (iii) his account on the social media website Tumbir, in each case in close proximity to the notice “© Eric McNatt” or other notice of authorship and/or ownership. (Ex. 2 (McNatt Compl.) ¶ 21; Ex. 63 (McNatt’s R&Os to Prince’s First Set of IROGs and RFAs) Response to Request No. 3; Ex. 9 (Bogre Rpt.) ¶ 24.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 28 of 54 29 D. The Prince Works 25. In 2014, Prince made a series of works entitled New Portraits. When asked how he came up with the idea for the New Portraits series, Prince testified, “I went on Instagram,” and when asked what he was looking for on Instagram, Prince stated, “I wasn’t looking for anything.” (Ex. 38 (Prince Tr.) at 96:5-11; see also id. at 131:22-23 (testifying that when he “discovered Instagram,” Prince “wasn’t even thinking about making art at that point, or making portraits.”).) 26. In his description of the process for creating the New Portraits works, Prince noted that he “figured out how [to] hack into” other Instagram users’ feeds in order to “swipe away” previous users’ comments so that the language he added appeared in closer proximity to the photograph upon making a screen save. (Ex. 1 (Graham Compl.) ¶ 37; Ex. 66 (Richard Prince New Portraits, GAGOSIAN, https://www.gagosian.com/exhibitions/richard-prince--june-12-2015 (last visited June 5, 2018); Ex. 9 (Bogre Rpt.) ¶ 33.) Prince claimed that this “hack” would only affect his local view of the Instagram user’s feed he was copying, such that other Instagram users would continue to see all comments to the photograph. (Ex. 1 (Graham Compl.) ¶ 37; Ex. 66 (Richard Prince New Portraits, GAGOSIAN, https://www.gagosian.com/exhibitions/richard-prince--june-12-2015 (last visited June 5, 2018); Ex. 9 (Bogre Rpt.) ¶ 33.) 27. Prince used Rastafarian Smoking a Joint as it appeared on a social media website Instagram (“Instagram”) and Kim Gordon I as it appeared on an Internet website (Rastafarian Smoking a Joint and Kim Gordon I, together “Plaintiffs’ Works”). (Ex. 2 (McNatt Compl.) ¶ 3; Ex. 9 (Bogre Rpt.) ¶ 25.) Prince uploaded a digital copy of Kim Gordon I to the social media website Instagram using his own Instagram account, accompanied by three captions (the “Kim Gordon Post”). (Ex. 2 (McNatt Compl.) ¶ 3; Ex. 5 (McNatt Ans.) ¶ 3; Ex. 9 (Bogre Rpt.) ¶ 25.) 28. The Prince Rastajay92 Work (“Untitled”) featured an image of Rastafarian Smoking a Joint, cropped into a square aspect ratio, and including elements of the Instagram graphic user interface including (1) above Rastafarian Smoking a Joint: one line of text including a “thumbnail” image and username of the Instagram account holder responsible for the Instagram post that Prince copied (“Rastajay92”) and, adjacent to that username, the number of weeks passed since Rastajay92’s post; and (ii) below Rastafarian Smoking a Joint: one line of text reading “[pictogram of heart] 128 likes”, (below that line) two lines of text reading “[pictogram of text bubble] rastajay92 Real Bongo Nyah man a real Congo Nyah [pictogram of raised fist] repost @indigoochild”, and (below those lines) a single line of text reading: “richardprince4 Canal Zinian da lam jam [pictogram of raised fist]” (such line of text, excluding the “richardprince4” username, the “The Prince Rastajay92 Appended Text”). (Ex. 1 (Graham Compl.) ¶ 31 and Exhibit B; Ex. 9 (Bogre Rpt.) ¶ 26.) The Prince Rastajay92 Work’s dimensions equaled 4 ft 3/4 in. by 5 ft 5 3/4 in (consisting of the cropped image plus the framing Instagram elements). (Ex. 1 (Graham Compl.) ¶ 31; Ex. 9 (Bogre Rpt.) ¶ 26.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 29 of 54 30 29. Price has conceded that he made use of Graham’s photograph Rastafarian Smoking a Joint in his New Portraits work, Untitled (Ex. 38 (Prince Tr.) at 106:7-10), and admits that he did not “do anything to determine who took the photo” in the Instagram post containing Graham’s photograph. (Id. 113:22-24.) 30. When asked at his deposition whether he was making any comment on the image of the Rastafarian in creating Untitled, Prince testified, “No.” (Ex. 38 (Prince Tr.) at 142:15-18.) When asked whether he was criticizing the composition of the image of the Rastafarian in Untitled, Prince testified, “No.” (Id. 142:19-22.) And when asked whether he was offering any criticism of social media by his work in Untitled, Prince testified, “No.” (Id. 143:2-5.) Prince stated that the message he was trying to convey in Untitled was that, “I wanted to have fun, I wanted to make people feel good,” and “I wanted to make art.” (Id. 143:11-20.) 31. While scrolling through Instagram, Prince came across McNatt’s photograph Kim Gordon I. (Ex. 38 (Prince Tr.) at 185:6-10.) 32. On or about September 10, 2014, Prince created and displayed the Kim Gordon Post on his Instagram account, “@richardprince4”. (Ex. 2 (McNatt Compl.) ¶ 22; Ex. 5 (McNatt Ans.) ¶ 22; Ex. 9 (Bogre Rpt.) ¶ 28.) The Kim Gordon Post featured an image of Kim Gordon I. (Ex. 2 (McNatt Compl.) ¶ 22; Ex. 2 (McNatt Compl.) Ex. B; Ex. 9 (Bogre Rpt.) ¶ 28.) The Kim Gordon Post included three captions (the “Kim Gordon Appended Text”) written by Prince appearing beneath the Photograph: (a) “Portrait of Kim Gordon” (Ex. 2 (McNatt Compl.) ¶ 22; Ex. 5 (McNatt Ans.) ¶ 22; Ex. 9 (Bogre Rpt.) ¶ 28.) (b) “Kool Thang You Make My Heart Sang You Make Everythang Groovy” (Ex. 2 (McNatt Compl.) ¶ 22; Ex. 5 (McNatt Ans.) ¶ 22; Ex. 9 (Bogre Rpt.) ¶ 28.) (c) Six pictographs (or “emojis”) depicting musical notation and instruments, selected from a stock set of emojis available for use by Instagram users. (Ex. 5 (McNatt Ans.) ¶ 22; Ex. 2 (McNatt Compl.) ¶ 22; Ex. 9 (Bogre Rpt.) ¶ 28.) 33. Prince stated that there were a number of messages he was trying to convey in Portrait of Kim Gordon including, “to some extent” a comment on the idea of social media, “a comment on my friend Kim,” “inside information” reflecting that Prince had given Ms. Gordon some of her first guitar lessons and Ms. Gordon had designed Prince’s first flier for his band in the 1970s, and Prince’s hope “that Kim would like her portrait.” (Ex. 38 (Prince Tr.) at 202:22-204:17.) 34. The Prince Kim Gordon Work (“Portrait of Kim Gordon”) was an inkjet print on canvas of the Kim Gordon Post. (Ex. 2 (McNatt Compl.) ¶ 25; Ex. 5 (McNatt Ans.) ¶ 25; Ex. 9 (Bogre Rpt.) ¶ 29.) The Prince Kim Gordon Work included an image of Kim Gordon I cropped to fit a square aspect ratio, framed by elements of the Instagram graphic user interface, including (i) above Kim Gordon I: one line of text including a “thumbnail” image and username of Prince’s Instagram account (“richardprince4”) and, adjacent to that username, the number of minutes passed since Prince’s post; and (ii) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 30 of 54 31 below Kim Gordon I: the Kim Gordon Appended Text; and (Ex. 2 (McNatt Compl.) ¶ 25; Ex. 2 (McNatt Compl.) Ex. B; Ex. 9 (Bogre Rpt.) ¶ 29.) sized such that the total dimensions of The Prince Kim Gordon Work (consisting of Kim Gordon I plus the framing Instagram elements) are approximately 4 ft. 3/4 in. by 5 ft. 5 3/4 in. (Ex. 2 (McNatt Compl.) ¶ 25; Ex. 64 (Blum & Poe’s R&Os to McNatt’s First Set of Interrogatories and RFAs) Response to RFA No. 11; Ex. 9 (Bogre Rpt.) ¶ 29.) 35. To create Portrait of Kim Gordon, Prince: (i) accessed and copied Kim Gordon I from Paper’s website or Instagram account; (ii) published his copy of Kim Gordon I to his own Instagram account; (iii) added the Kim Gordon Appended Text to Kim Gordon I via the Instagram “comment” function, thereby creating The Kim Gordon Post; (iv) took a “screen save” of the The Kim Gordon Post as it appeared on his mobile phone, thereby saving a digital copy of the image captured by the screen save in the memory of the mobile phone; (v) sent the saved image to a computer; and (vi) printed (or caused to be printed) the saved image as an inkjet on canvas, thereby creating a physical copy of The Kim Gordon Post. (Ex. 2 (McNatt Compl.) ¶ 26; Ex. 5 (McNatt Ans.) ¶ 26; Ex. 9 (Bogre Rpt.) ¶ 30.) 36. McNatt was first made aware of Prince’s infringement in September 2014 by a friend who recognized McNatt’s photograph in Prince’s Instagram post. (Ex. 63 (McNatt R&Os to Prince’s First Set of Interrogatories and RFAs) Response to Interrogatory No. 5; Ex. 75 (EM00000001).) E. The New Portraits Exhibitions 37. Prince displayed the Untitled and Portrait of Kim Gordon at fine art gallery spaces as part of an exhibition entitled “New Portraits”. (Ex. 1 (Graham Compl.) ¶ 4; Ex. 2 (McNatt Compl.) ¶ 3; Ex. 39 (Gagosian Tr.) at 18:5-19; Ex. 9 (Bogre Rpt.) ¶ 31.) 38. Prince’s New Portraits were also displayed in many promotional materials, including (a) on the Gagosian Gallery (Ex. 1 (Graham Compl.) ¶ 5; Ex. 4 (Gagosian Ans.) ¶ 5; Ex. 3 (Prince Ans. Graham) ¶ 5; Ex. 9 (Bogre Rpt.) ¶ 31.) and Blum & Poe Gallery (Ex. 2 (McNatt Compl.) ¶ 4; Ex. 1 (McNatt Ans.) ¶ 4; Ex. 65 (Richard Prince New Portraits, BLUM & POE, https://www.blumandpoe.com/exhibitions/richard- prince (last visited June 5, 2018)); Ex. 9 (Bogre Report) ¶ 31) websites; (b) a catalog to the Gagosian Exhibition; (Ex. 1 (Graham Compl.) ¶ 6; Ex. 4 (Gagosian Ans.) ¶ 6; Ex. 3 (Prince Ans. Graham) ¶ 6; Ex. 9 (Bogre Rpt.) ¶ 31); (c) internet websites; (Ex. 1 (Graham Compl.) ¶ 43; Ex. 4 (Gagosian Ans.) ¶ 43; Ex. 3 (Prince Ans. Graham) ¶ 43; Ex. 9 (Bogre Rpt.) ¶ 31); (d) a billboard in New York City; (Ex. 1 (Graham Compl.) ¶ 45; Ex. 3 (Prince Ans. Graham) ¶ 45; Ex. 9 (Bogre Rpt.) ¶ 31); (e) an art book depicting the Prince works displayed in the Blum & Poe Exhibition (Ex. 2 (McNatt Compl.) ¶ 38; Ex. 5 (McNatt Ans.) ¶ 38; Ex. 9 (Bogre Rpt.) ¶ 31); and (f) on social media (Ex. 2 (McNatt Compl.) ¶ 36-37; Ex. 5 (McNatt Ans.) ¶ 36; Ex. 9 (Bogre Rpt.) ¶ 31.) 39. The Gagosian Exhibition, originally held at the Madison Gallery from September 19, 2014, to October 24, 2014, and the Blum & Poe Exhibition, originally Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 31 of 54 32 held at the Tokyo Gallery from around April 3, 2015, to May 30, 2015, also featured the New Portraits works. (Ex. 2 (McNatt Compl.) ¶ 33; Ex. 5 (McNatt Ans.) ¶ 33; Ex. 9 (Bogre Rpt.) ¶ 32.) 40. In a description of the process for creating the New Portraits works, authored by Prince and published on gagosian.com and richardprince.com, Prince referred generally to the “‘comments” (quotation marks in original) he made prior to his screen saves of other Instagram users’ posts alternatively as “non sequitur”, “gobbledygook”, “jokes”, “oxymorons”, “psychic jiu jitsu” (quotation marks in original) and “inferior language” that “sounds like it means something”. (Ex. 1 (Graham Compl.) ¶ 36; Ex. 2 (McNatt Compl.) ¶ 55; Ex. 66 (Richard Prince New Portraits, GAGOSIAN, https://www.gagosian.com/exhibitions/richard-prince--june-12-2015 (last visited June 5, 2018)); Ex. 9 (Bogre Rpt.) ¶ 32.) 41. Regarding the language of these “comments”, Prince posited the following: “What’s it mean? I don’t know. Does it have to mean anything at all?” (Ex. 1 (Graham Compl.) ¶ 36; Ex. 66 (Richard Prince New Portraits, GAGOSIAN, https:/www.gagosian.com/exhibitions/richard-prince--june-12-2015 (last visited June 5, 2018)); Ex. 9 (Bogre Rpt.) ¶ 32.) 42. Below the description as it appears on gagosian.com is contact information for Gagosian Gallery and the following notice: “All images are subject to copyright. Gallery approval must be granted prior to reproduction.” (Ex. 1 (Graham Compl.) ¶ 36; Ex. 4 (Gagosian Ans.) ¶ 36; Ex. 3 (Prince Ans. Graham) ¶ 36; Ex. 9 (Bogre Rpt.) ¶ 32.) 43. Prince never asked Graham for permission to copy, reproduce, modify, distribute, display or make any other use of Rastafarian Smoking a Joint or prepare any derivative work therefrom. (Graham Decl. ¶ 3; Ex. 1 (Graham Compl.) ¶ 46; see also Ex. 38 (Prince Tr.) at 257:18-22 (Prince testifying that he did not “speak to Graham about his photo, Rastafarian Smoking a Joint” before creating Untitled.) Prince also made no attempt to contact Graham to ask whether he could license the photograph or negotiate payment for his use of the photograph, nor did Prince credit Graham for his use of his photograph. (Ex. 31 (Graham Tr.) at 51:12-19.) 44. Prince has conceded that he made use of McNatt’s photograph Kim Gordon I in his New Portraits work, Portrait of Kim Gordon (Ex. 38 (Prince Tr.) at 181:8-10), and admits that he did not “do anything to determine who took the photo” of Kim Gordon that he posted to Instagram (Id. 187:17-21). Prince never asked McNatt for permission to copy, reproduce, modify, distribute, display or make any other use of Kim Gordon I or prepare any derivative work therefrom. (See id. at 258:5-8 (Prince testifying that he did not “speak to Eric McNatt about using his Kim Gordon photograph” before he made his Kim Gordon New Portrait; McNatt Decl. ¶ 7.) 45. As part of the New Portraits exhibition, Gagosian Gallery also produced and distributed an exhibition catalog that included an image of Untitled (the “Catalog”). (Ex. 1 (Graham Compl.) ¶ 6; Ex. 3 (Prince Ans. to Graham) ¶ 6; Ex. 4 (Gagosian Ans.); Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 32 of 54 33 Ex. 39 (Gagosian Tr.) at 153:11-18; Ex. 67 (Prince’s R&Os to Graham’s First Set of IROGs and RFAs) Response to No. 32.) Defendants did not seek or receive permission from Graham to copy, display or distribute Rastafarian Smoking a Joint nor did they offer or provide any compensation to Graham. (Ex. 1 (Graham Compl.) ¶ 4; Graham Decl. ¶¶ 3, 4; Ex. 38 (Prince Tr.) at 257:18-22; Ex. 31 (Graham Tr.) at 149:10-19; Ex. 67 (Prince’s R&O to Graham’s First Set of IROGs and RFAs) Response to No. 8.) 46. 47. 48. On Prince approved the display of a billboard on the West Side Highway of New York City depicting seven New Portraits, one of which was Untitled (the “Billboard”). (Ex. 38 (Prince Tr.) at 169:7-18, 169:25-172:13, 174:8-175:4; Ex. 41 (Maxwell Tr.) at 204:5-19, 205:4-206:12; Ex. 68 (Prince’s Third Supplemental R&Os to Graham’s Second Set of Interrogatories) Response to Interrogatory No. 6; Ex. 79 (Prince R&Os to Graham’s Second Set of Interrogatories) Response to Interrogatory No. 3(b).) (Ex. 71 (Harmon Tr.) at 211:19-25; Ex. 68 (Prince’s Third Supplemental R&Os to Graham’s Second Set of Interrogatories) Response to Interrogatory No. 6.) 49. Through the Billboard, Price re-displayed his commercial artwork, drawing further attention to the New Portraits collection. (See Ex. 36 (Harrison Dep.) at 180:20-181:5, 181:23-182:3 (testifying that the Billboards appear to be “pure promotion” to increase the “brand awareness” of Prince amidst the “buzz of these paintings”.) 50. Graham commenced this litigation on December 30, 2015, and seventeen days later, on January 6, 2016, Prince posted an image on Twitter that contains a “copy of a portion of the Rastafarian Smoking a Joint photograph” (the “Twitter Compilation”). (Ex. 51 (Prince Decl.) ¶ 35; Ex. 1 (Graham Compl.) ¶¶ 6, 56, Exhibit G.) Prince did not seek or receive permission from Graham to use his image in the Twitter Compilation and provided no attribution credit to Graham. (Ex. 38 (Prince Tr.) at 52:11-15; Ex. 70 (Brown Tr.) at 305:3-22; Ex. 71 (Harmon Tr.) 212:20-213:21.) 51. Prince has approximately 24,000 Twitter followers. (See Ex. 38 (Prince Tr.) at 61:5-9.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 33 of 54 34 52. Price now states in his declaration that “[t]he tweet was my way of commenting on the current lawsuit.” (Ex. 51 (Prince Decl.) ¶ 35.) 53. Prince previously testified that he was not aware of having “tweeted about the subject matter of the lawsuits” and that through this Twitter Compilation he was “making a comment on the fact that I didn’t make the montage.” (Ex. 38 (Prince Tr.) at 13:21-23; 179:10-180:8 (“I posted a montage that I did not make so that I could comment on it that I did not make it on Twitter.”). 54. During the Gagosian exhibition, in approximately October 2014, Graham learned from a friend that Rastafarian Smoking a Joint was being displayed as part of the exhibition at the Gagosian Gallery. (Ex. 59 (Graham R&Os to Prince’s First Set of Interrogatories) Response to Interrogatory No. 5.) Prior to that time, Graham was not aware of Prince’s copying of his photograph. (Ex. 59 (Graham R&Os to Prince’s First Set of Interrogatories) Response to Interrogatories Nos. 5, 6.) 55. Following the close of the Gagosian exhibition, on February 12, 2015, Graham sent Prince a cease and desist letter, demanding that Prince cease and desist from continuing to exhibit or distribute any work containing unauthorized reproductions of Rastafarian Smoking a Joint, remove all such reproductions of Rastafarian Smoking a Joint from any work attributable to Prince, remove all such reproductions from the Gagosian Gallery website, and deliver or destroy all copies of the Gagosian exhibition catalog that contained a reproduction of Graham’s photograph. (Ex. 1 (Graham Compl.) ¶ 44; Ex. 3 (Prince Ans.) ¶ 44.) 56. Prince’s unauthorized use of Graham’s photograph is not the first time Prince has used another person’s work of art without permission. Indeed, as Prince testified at his deposition, “I would describe that I give myself permission to use images that appear in the public -- appear in the public in various forms, whether it’s from a book, magazine, or the social media.” (Ex. 38 (Prince Tr.) at 32:13-17.) Prince further testified that he has “never really associated the images that I use with an author” (Id. at 32:24-25), and that “You can’t ask permission. You just have to go ahead and do it.” (Id. at 44:9-10.) 57. In an interview originally published in New York magazine, Prince was similarly quoted as saying, “I’m not going to change, I’m not going to ask for permission, I’m not going to do it. I don’t know how to do it that way.” (See Ex. 67 (Prince R&O to Graham’s First Set of IROGs and RFAs) Response to RFA No. 57.) 58. In discussing the prior copyright infringement litigation Prince was involved in, Cariou v. Prince, Prince is quoted describing plaintiffs’ counsel as follows: “I hated that lawyer; that lawyer was really an asshole . . . I just wanted to be like — my attitude was like, Dude, this is my artwork, and you are a square. You are a fucking square. For me, it’s like I wasn’t going to be a part of his world, I wasn’t going to acknowledge his world. And I knew that I would win in the end. I know Oscar Wilde; I know Lenny Bruce. You don’t argue aesthetics in front of a judge. And if you don’t know that, you’re pretty stupid. The judge doesn’t know shit about aesthetics; he knows the Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 34 of 54 35 law. I don’t know anything about the law. Copyright? That’s absurd.” (See Ex. 67 (Prince R&O to Graham’s First Set of IROGs and RFAs) Response to RFA No. 56.) F. Purpose and Character i. Not Transformative 59. The Prince Works Untitled and Portrait of Kim Gordon are not transformative of Graham’s and McNatt’s works, as they do not alter Plaintiffs’ Works with new expression, meaning, or message. (Ex. 1 (Graham Compl.) Exhibit A; Ex. 1 (Graham Compl.) Exhibit B; Ex. 2 (McNatt Compl.) Exhibit A; Ex. 2 (McNatt Compl.) Exhibit B; Ex. 11 (Harrison Rpt.) at 6; Ex. 14 (Sussman Rpt.) ¶ 34; Ex. 12 (Besek Rpt.) ¶ 19; Ex. 10 (Coleman Rpt.) ¶¶ 33, 44; Ex. 13 (Whitaker Rpt.) ¶ 14; Ex. 9 (Bogre Rpt.) ¶ 47.) (a) Only Slight Cropping 60. The Prince Works contain only slight cropping of Graham’s and McNatt’s images, and each of their images are the central content, and indeed, constitute the majority of the Prince Works. The Prince Works do not make any significant aesthetic change to Plaintiffs’ Works. (Ex. 1 (Graham Compl.) Exhibit A; Ex. 1 (Graham Compl.) Exhibit B; Ex. 2 (McNatt Compl.) Exhibit A; Ex. 2 (McNatt Compl.) Exhibit B; Ex. 11 (Harrison Rpt.) at 6.) 61. The Prince Work Untitled includes a verbatim reproduction of the Graham Work, the only modifications thereto being: minor cropping of the bottom and top portions of the Graham Work, leaving almost the entirety of the Graham Work fully intact (including the portrait subject’s face, arms and torso); framing the Graham Work with elements of the Instagram graphic user interface including some lines of text in the form of Instagram comments (the “Untitled Appended Text”; Ex. 11 (Harrison Rpt) at 6.); and resizing the Graham Work such that the total dimensions of Untitled (consisting of the image plus the framing Instagram elements) equaled 4 ft. 3/4 in. by 5 ft. 5 3/4 in. (See Ex. 1 (Graham Compl.) ¶ 31; Ex. 4 (Gagosian Ans.) ¶ 31; Ex. 3 (Prince Ans. Graham) ¶ 31; Ex. 11 (Harrison Rpt). at 6.) 62. To create Untitled, Prince: (1) accessed Rastajay92’s post on Instagram which contained an unauthorized reproduction of the Graham Work, Rastafarian Smoking a Joint; (ii) added the Untitled Appended Text via his Instagram account; (iii) took a “screen save” of Rastayjay92’s Instagram post (newly including the Untitled Appended Text); (iv) sent the saved image to his computer; and (v) printed (or instructed someone else to print) the saved image as a larger scale inkjet on canvas. (See Ex. 1 (Graham Compl.) ¶ 34; Ex. 3 (Prince Ans. Graham) ¶ 34; Ex. 11 (Harrison Rpt.) at 6.) All Instagram elements contained in Untitled other than Appended Text were added by Rastajay92 prior to Prince’s screen save or else appeared mechanically as a function of the Instagram service. (Ex. 1 (Graham Compl.) ¶ 35; Ex. 38 (Prince Tr.) at 109:8-110:6; Ex. 11 (Harrison Rpt.) at 6.) Prince’s sole modification to Rastajay’s Instagram post prior to making a screen save was the addition of the Untitled Appended Text. (Id.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 35 of 54 36 63. The alleged “contribution” Prince made to Untitled was simply his nonsensical comment. (Ex. 38 (Prince Tr.) 126:17-19) Prince made no physical alterations to the work after it was printed. (Id. at 190:14-17.) 64. The Prince Work Portrait of Kim Gordon is an inkjet print on canvas of an Instagram post from Prince’s account that consisted of an exact reproduction of the McNatt Work, the only modification being minor cropping of the bottom and top portions, leaving almost the entirety of the image fully intact (including Ms. Gordon’s face, arms and torso); framed by elements of the Instagram graphic user interface, including below the image the Kim Gordon Appended Text; and sized such that the total dimensions of Portrait of Kim Gordon (consisting of the image plus the framing Instagram elements) are approximately 4 ft 3/4 in. by 5 ft 5 3/4 in. (Ex. 2 (McNatt Compl.) ¶¶ 22, 25; Ex. 11 (Harrison Rpt.) at 7.) The Instagram post included three captions (the “Kim Gordon Appended Text”) written by Prince appearing beneath the McNatt Work: “Portrait of Kim Gordon”; “Kool Thang You Make My Heart Sang You Make Everythang Groovy”; six pictographs (or “emojis”) depicting musical notation and instruments, selected from a stock set of emojis available for use by Instagram users. (Ex. 2 (McNatt Compl.) ¶ 22; Ex. 5 (McNatt Ans.) ¶ 22; Ex. 11 (Harrison Rpt.) at 7.) 65. To create Portrait of Kim Gordon, Prince: (i) accessed and copied the McNatt Work, Kim Gordon I, from Paper’s website or Instagram account; (ii) published his copy of the McNatt Work to his own Instagram account; (iii) added the Kim Gordon Appended Text to the image via the Instagram “comment” function, thereby creating his Instagram post; (iv) took a “screen save” of that post as it appeared on his mobile phone; (v) sent the saved image to a computer; and (vi) printed (or caused to be printed) the saved image as an inkjet on canvas, thereby creating a physical copy of the Kim Gordon Post. (Ex. 2 (McNatt Compl.) ¶ 26; Ex. 5 (McNatt Ans.) ¶ 26; Ex. 11 (Harrison Rpt.) at 7.) All Instagram elements contained in Portrait of Kim Gordon other than the Kim Gordon Appended Text appeared mechanically as a function of the Instagram service when Prince uploaded the McNatt Work to Instagram and added the Kim Gordon Appended Text. Prince’s sole modification prior to making a screen save was to add the Kim Gordon Appended Text. (Ex. 11 (Harrison Rpt.) at 7.) 66. Prince appropriated the Graham and McNatt works almost verbatim, leaving the “meat” of each image untouched. Indeed, in viewing the Prince Works, a reasonable observer would readily recognize the Graham Work and the McNatt Work as the art on display. (Ex. 11 (Harrison Rpt.) at 7.) 67. As one of Defendants’ experts observes, “the image portion of those photographs is unobscured by any other mark, element, collage, words . . . on the surface of the image.” (Ex. 46 (Wallis Tr.) at 129:11-16.) 68. The Prince Works do not use Plaintiffs’ Works in a completely new or unexpected way, nor do they add new meaning or new aesthetics. The only significant change that Prince made to Kim Gordon I was to alter its size, and Prince printed Plaintiffs’ Works as inkjet images on canvas. However, changing size or changing medium does not transform the images. The fact that a work in one medium has been Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 36 of 54 37 copied from a work in another medium does not render it any less a “copy”. The fact that Prince enlarged the size of an image posted on Instagram (a screen-based medium) and printed it larger onto canvas (a print based medium) does not render the new work any less a copy. (Ex. 9 (Bogre Rpt.) ¶ 39.) (b) Prince’s Alleged Contributions 69. Contrary to his contention, Prince’s work did not somehow transform the images of Graham and McNatt. (Ex. 19 (Schwartzman Rpt.) ¶¶ 24-25; Ex. 27 (Phillips Rpt.) ¶¶ 32-33; Ex. 21 (Wallis Rpt.) ¶¶ 22-26.) Nor would a reasonable observer conclude that the Prince Works use Plaintiffs’ Works in a completely new or unexpected way. On the contrary, the Prince Works do not add new meaning or new aesthetics to Plaintiffs’ Works. (Ex. 9 (Bogre Rpt.) ¶ 47.) 70. Comments on an Instagram post function as captions or text, and do not automatically use the Plaintiffs’ photographs in a completely new or unexpected way, nor do they add new meaning or new aesthetics. Prince’s deleting Instagram users’ comments and replacing them with other comments did not add new insights or aesthetics that cast Plaintiffs’ Works in a new light. The 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. (Ex. 9 (Bogre Rpt.) ¶ 49.) 71. Even though viewers confront Plaintiffs’ Works in a different context (a gallery), merely downloading Instagram posts of Plaintiffs’ Works and printing them as inkjet prints on canvas is not unique nor does it use the source photographs in a completely new or unexpected way or add new meaning or new aesthetics. Prince did utilize an enlarged version of Kim Gordon I, but printing a larger Instagram post is not in and of itself a “commentary” on the everyday use of Instagram. Indeed, curators have already explored the commodification of the Instagram space in gallery shows in which the original visual artists participated. For example, in 2011, the East Gallery in London hosted the first UK-based exhibit of photographs that had first been posted on Instagram, titled My World Shared. On May 27, 2016, the K+ Gallery in Singapore curated its first exhibit based on Instagram posts from 13 “Instagram artists” to explore Instagram posts as art. The visual artists themselves enlarged their Instagram posts, printed them as inkjet prints on canvas and allowed them to be exhibited for sale in the gallery, in the same manner that Prince copied for his New Portraits works. (Ex. 9 (Bogre Rpt.) ¶ 50.) 72. Printing an image that previously was only viewed on a screen or enlarging the size of an image does not use the image in a different manner or for a different purpose. Photographers regularly display their work on screen-based systems (computer, iPad or smart phone) and print out that work at different sizes depending on where or how the work will be shown. While a photograph may appear different at different sizes, simply changing size does not qualify as using a source work in a completely new or unexpected way. It is simply a part of the photographic practice. (Ex. 9 (Bogre Rpt.) ¶ 51.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 37 of 54 38 73. Plaintiffs’ Works are readily apparent in the Prince Works. In New Portraits, Prince did little more than enlarge McNatt’s image, Kim Gordon I, a common practice among photographers, and add a word or phrase, which (as described above) itself is not transformative because it does not add new insights or understandings, nor does it change how the image appears. Prince made even fewer changes to Plaintiffs’ Works than he did to the source image for “Gradation”, from his “Yes Rasta” series, where Prince merely painted blue lozenges over the subject’s eyes and mouth, and pasted a picture of a guitar over the body. (Ex. 9 (Bogre Rpt.) ¶ 52.) 74. Regardless of how Prince describes his works, it is unlikely that any photography viewer who had seen Graham’s image on Instagram, on the A. Galerie website, or had seen a limited-edition print produced by Graham, would not recognize Prince’s secondary work immediately as Graham’s work. Photography viewers are accustomed to seeing the same image presented on different social media platforms, and printed in different sizes for gallery shows. It is unlikely that anyone who had seen McNatt’s image on Instagram would not recognize the image immediately as belonging to McNatt. And in fact, one or more individuals who had originally seen Rastafarian Smoking a Joint and subsequently saw Untitled notified Graham. (Ex. 9 (Bogre Rpt.) ¶ 53.) 75. The Prince Works point toward coopted labor and incidental commentary—as if one had commented on a newspaper story and then, by adding a reader comment, claimed the journalist’s work as one’s own. Even if the added comment came from a “writer” as defined by experts—e.g., a Pulitzer Prize winner—the commentary would not merit authorship nor claim to writerly labor beyond itself. (Ex. 13 (Whitaker Rpt.) ¶ 28.) 76. Prince’s claim of physical transformation is muddled on artistic processes. Prince’s claim of added “meaning” puts Prince’s work in a Rorschach Blot test for art interpretation, and relies on effusive praise and credentializing based on the opinion of art experts. (Ex. 13 (Whitaker Rpt.) ¶ 30.) 77. Regarding physical transformation, generally all canvases are stretched around frames. The Prince works are not “paintings.” They are inkjet prints. They involve much less hand of the artist than Prince’s prior works. There is no demonstrated painting, beyond perhaps priming of the canvas. The change of context from virtual to real space is neither transformative nor neutral but extractive. (Ex. 13 (Whitaker Rpt.) ¶¶ 32, 33, 34.) 78. That Prince claims the Prince Works were printed “in color” does not make them transformative. The work was already “in color” because the optics of a computer screen, such as used by Instagram, are, red-green-blue, not literally black and white. The inkjet printing used by Prince presumably mixes colored inks to create a gray scale. That might give the work more warmth or depth but it is not plausibly transformative. (Ex. 13 (Whitaker Rpt.) ¶ 35.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 38 of 54 39 79. The Prince works do not resemble a mobile phone. The Prince Works have a different aspect ratio; phones are generally taller and narrower. The Prince Works have, according to the Gagosian website, at the most vertical, an aspect ratio of 4:5.5. A typical mobile phone is closer to 3:5.5, meaning it is 3 inches wide and 5.5 to six inches tall, as compared to the Prince Works which are approximately 4 feet wide and 5 feet (or 5 ft. 5 inches) tall. The phone dimensions are substantially more vertical than the Prince Works. (Ex. 13 (Whitaker Rpt.) ¶ 36.) Had Prince wanted these works to look like phones, he could have rounded the corners of the frames or used “fatter” stretchers so that the works had the relative thickness (depth) of a phone. (Ex. 13 (Whitaker Rpt.) ¶ 36.) 80. The scale of the Prince Works is not inherently re-inventive. In fact, 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, both in the time it took to create the Graham and McNatt Works and in the accumulation of practice, insight, or training that allowed their creation. (Ex. 13 (Whitaker Rpt.) ¶ 37.) 81. Plaintiffs’ Works are the dominant images in the Prince Works. In his derivations of the Instagram posts, Prince has taken the entirety of both Plaintiffs’ Works, in the “Twitter compendium” he has used the cropped central section of the Graham photograph (the face and hair of its subject), all three of them presented “verbatim”, so to speak—that is, without any visible alteration of their content. Plaintiffs’ Works are the dominant imagistic components in the Prince Works. (Ex. 10 (Coleman Rpt.) ¶ 40.) 82. Any changes Prince made to Plaintiffs’ Works were insufficient to re- invent or transform them. Not only was any cropping minimal, it also occurred during the original posting of these images by whichever Instagram subscribers put them online. Prince’s screen grab deliberately captured the entirety of those posts, including the substantial borders that the Instagram posting process automatically places around posted images. There are no other alterations of Plaintiffs’ Works themselves as they appeared in those Instagram posts. That Prince printed his screen grabs to canvas does not change the fact that the dominant images in the Prince Works are Plaintiffs’ Works. (Ex. 10 (Coleman Rpt.) ¶ 41.) (c) Alleged New Meaning 83. The Prince Works do not convey a new expression, meaning or message from Plaintiffs’ Works. (Ex. 11 (Harrison Rpt.) at 7.) 84. The Prince Works, which entail Prince screen-capturing and printing onto canvases his own participation on the social media platform Instagram, only repeat established postmodern tropes and do not contribute in any profound way to the continued discourse of critically-engaged appropriation art. (Ex. 11 (Harrison Rpt.) at 8.) 85. The texts common across the Prince Works, in all their ambiguous if not nonsensical phrasing, are secondary to the Graham Photograph and the McNatt Photograph. And this is precisely how Instagram works: users post images, and other users “like” the images, comment on them, and sometimes re-post them. In fact, in Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 39 of 54 40 Prince’s New Portraits canvases, we can see other Instagrammers besides Prince commenting on the images (e.g., “rastajay92”), further muddying Prince’s claim to authorship over the works and diminishing the importance of Prince’s own added language. (Ex. 11 (Harrison Rpt.) at 8.) 86. The artistic meaning a viewer would take from the Prince Works is the same as the meaning that a viewer would take from Plaintiffs’ Works because Prince’s minimal alterations do not convey some radical new meaning that would be impactful to a consumer of contemporary “remix” culture. (Ex. 11 (Harrison Rpt.) at 8.) 87. The extent of Prince’s commentary on the Graham work was five words and one emoji. It rests solely on reputation, which is to say the brand of the artist, rather than the expression embodied in the physical work itself. (Ex. 13 (Whitaker Rpt.) ¶ 39.) 88. Prince’s comments do not automatically constitute alteration to Plaintiffs’ Works. If even incomprehensible prose inherently represents the activity we call “commenting”, then all speech, including infantile babbling, qualifies as commentary, in which case the term “comment” becomes meaningless. (Ex. 10 (Coleman Rpt.) ¶ 42.) 89. Given the nature of Prince’s “comments”, it is impossible to determine whether he is “commenting”, if he is commenting at all, on the images involved in these Instagram posts, the original texts that accompanied them in these online presentations, or the combination of the two. This distinction is significant, because the Instagram posts themselves constitute image-text works. That is, by the choice of whoever posted them, these posts involve an intentional combination of images and texts. (Ex. 10 (Coleman Rpt.) ¶ 43.) 90. Prince’s addition of the Instagram interface elements within each work, including Prince’s “comments” at bottom (the Untitled Appended Text and the Kim Gordon Appended Text) do not carry significance. The Prince Works, which entail Prince screen-capturing and printing onto canvases his own participation on the social media platform Instagram, only repeat established postmodern tropes and do not contribute in any profound way to the continued discourse of critically-engaged appropriation art. (Ex. 11 (Harrison Rpt.) at 8.) 91. The copying and re-presentation of imagery in new contexts in a bid for authenticity is banal. A reasonable observer would not derive some “intellectual transformation” (Wallis Report ¶ 40) of Plaintiffs’ Works by virtue of seeing them in the form presented by the Prince Works. (Ex. 11 (Harrison Rpt.) at 8.) (d) Prince’s Inconsistency 92. Prince now claims that his comments on the Instagram posts are “imbued with layers of meaning” (Ex. 51 (Prince Decl.) ¶ 20.) Prince now describes his purpose in creating the New Portraits was “to make people think about the way we present ourselves to the world through social media” (Ex. 51 (Prince Decl.) ¶ 12), to “confront the broader truths of this new world” (id.), and to “satirize and provide commentary on the manner in which people today – all people – communicate, present themselves, and Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 40 of 54 41 relate to one another through the new technology of social media” by making “a parody of the entire post”. (Id. ¶ 31 (emphasis omitted).) 93. However, Prince previously testified that his comments were merely “gobbledygook” (Ex. 38 (Prince Tr.) at 140:12-16, 185:22-186:5); ; and conceded that, “It sounds like it means something. What’s it mean? I don’t know.” (Ex. 73 (PRINCE_GRAHAM 0000047-57) at 0000054.) 94. When asked at his deposition whether he was “making any comment on the image of the Rastafarian” in the Instagram post or “offering any criticism of social media by his work” in Untitled, Prince testified unequivocally that he was not. (Ex. 38 (Prince Tr.) at 142:15-18, 143:2-5). Instead, Prince testified that the message he was trying to convey through Untitled was “to have fun” and “to make people feel good.” (Id. at 143:11-17.) 95. 96. Prince states that he “could have used many other images of Rastafarians that exist online in my painting and it would have had the same visual impact or value.” (Ex. 51 (Prince Decl.) ¶ 28.) Prince also states that “could have used many other images of Kim Gordon that exist online in my painting and it would have had the same visual impact or value.” (Id. ¶ 29.) 97. Prince does not contend that he is parodying Plaintiffs’ photographs Rastafarian Smoking a Joint or Kim Gordon I, and states that “I did not always make a parody of the underlying image.” (Ex. 51 (Prince Decl.) ¶ 31.) 98. Prince states now that his portraits are an “homage” to Andy Warhol. (Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (McNatt) at 8 (“the photographic element of the New Portraits measure approximately 41 x 41 inches, as an homage to Andy Warhol’s portraits in approximately that size); id. at 20 (describing “the intentional cropping of images in an homage to Andy Warhol”); id. at 24 (“the cropping of each image used in the New Portraits to an approximate 41 x 41 inch square was necessary to pay adequate homage to Andy Warhol”). 99. At his deposition, Prince testified that he sought to distinguish himself from Warhol in creating his New Portraits. (Ex. 38 (Prince Tr.) at 135:11-15 (testifying that he did not paint on the images “primarily because that would have been like – that’s something Warhol would have done. I didn’t want to – I wanted to make my own new portrait.”).) 100. Despite Prince’s effort to recast his purpose, Prince’s New Portraits continue to convey classical portraiture to a reasonable observer just as Graham and McNatt’s original images do. Prince’s minor formal transformations—change of Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 41 of 54 42 medium, scale, color, and the addition of “gobbledygook” phrases—coupled with obsolete conceptions of critical commentary do not rise to the level of “transform[ing] this source material such that new expressions and new meanings became apparent.” (Ex. 21 (Wallis Rpt.) ¶ 44; Ex. 11 (Harrison Rpt.) at 9.) 101. Again, Prince himself used the word “gobbledygook” to describe the text comments he added to his Instagram interventions. (See Ex.38 (Prince Tr.) 140:12-16; Ex. 1 (Graham Compl.) ¶ 36; Ex. 2 (McNatt Compl.) ¶ 55; Ex. 66 (Gagosian Website, “Richard Prince New Portraits” https://www.gagosian.com/exhibitions/richard-prince-- june-12-2015); Ex. 11 (Harrison Rpt.) at 9.) In each Prince Work, 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. (Ex. 11 (Harrison Rpt.) at 9.) (e) The Reasonable Observer 102. Contrary to Defendants’ contention, the Prince Works are indistinguishable from Plaintiffs’ Works, because the Prince Works do not substantially alter the visual impact of Plaintiffs’ Works. (Ex. 14 (Sussman Rpt.) ¶ 29.) 103. If Graham’s Rastafarian Smoking a Joint and Prince’s use of Rastafarian Smoking a Joint were flashed to a sample of viewers, you would find that the majority of viewers would recognize one image of the Rastafarian as indistinguishable from the other. A reasonable observer would see both as a picture of a man with a mane of wild hair, smoking something. (Ex. 14 (Sussman Rpt.) ¶ 31.) 104. Similarly, if both McNatt’s Kim Gordon I and Prince’s use of Kim Gordon I were placed side by side in front of reasonable viewers, the majority of viewers would recognize one image of Kim Gordon as indistinguishable from the other. (Ex. 14 (Sussman Rpt.) ¶ 32.) 105. The Prince Works rely on the same visual elements as Plaintiffs’ Works. The composition, the immediate eye-catching elements of the original photographs, and the subjects are all the same. Because the visual impact is unchanged from the original photographs, a reasonable viewer would recognize all the images as the same picture whether it was printed on canvas, on a coffee cup, as a photograph, on a billboard, or on the Instagram platform. The medium the image is printed on does not transform the image. (Ex. 14 (Sussman Rpt.) ¶ 33.) 106. Prince states that his “vision for the New Portraits series was that each portrait was part of a novel, and that when the portraits were exhibited together, they would become a democracy, and would tell an entire story.” (Ex. 51 (Prince Decl.) ¶ 32.) 107. However, a reasonable observer would view each of the Prince Works as independent works of art, and not as a series of works that must be seen together. Prince sells the images individually. If they were made as a series that must be seen together, Prince would insist that they be sold as a series. (Ex. 9 (Bogre Rpt.) ¶ 48.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 42 of 54 43 108. In fact, Prince acknowledges that “[e]ach work was a complete artwork on its own, and was sold as such”. (Ex. 51 (Prince Decl.) ¶ 32; 109. The dominant images in both of the Prince Works are Plaintiffs’ Works, Rastafarian Smoking a Joint and Kim Gordon I. A side-by-side comparison shows that Prince’s images are slightly cropped versions of Donald Graham’s photograph Rastafarian Smoking a Joint and Eric McNatt’s Kim Gordon I. In the case of the Graham photograph, Prince did not determine the cropping himself, since the photo was uploaded by a different user on Instagram. In the case of Kim Gordon I, Prince may not have chosen the cropping himself even though it was uploaded from his own Instagram account; the cropping may have been a default or standard cropping as a result of the uploading of the image to the Instagram platform. Importantly, the croppings do not materially change the composition of the original images. (Ex. 14 (Sussman Rpt.) ¶ 36.) 110. Richard Prince did not materially alter the composition of either of Plaintiffs’ Works. The composition in Rastafarian Smoking a Joint (the symmetrical and central placement of the subject, the use of negative space, the Rastafarian’s silhouette) is virtually unchanged. The composition in Kim Gordon I (the central placement of the subject, the strong lighting elements) also is almost unchanged. There were no color or lighting adjustments made to either of the photographs that would otherwise alter the composition. The Prince Works simply reproduce Plaintiffs’ Works wholesale. (Ex. 14 (Sussman Rpt.) ¶ 37.) 111. Prince’s use of Instagram frames around the photographs and the text posted below the photographs in the Prince Works are immaterial. These elements simply present the works as an Instagram posting. Prince’s inclusion of the Instagram platform in his presentation of his work is equivalent to a picture frame. The frame can present the work in variety of styles, imposing contemporary or antique styles by using different designs. The Instagram frame may be an antique platform in a few years’ time. To a reasonable observer, a frame does not transform the work, it simply presents the image within a frame. Further, Instagram’s visual platform is designed to be unobtrusive and compatible with a wide variety of images, not to be a distinctive visual element in its own right. Prince does nothing to change the visual effect of the white frame. (Ex. 14 (Sussman Rpt.) ¶ 38.) 112. Prince typed his text comments into the existing Instagram format without alteration. To a reasonable observer, this text would be read literally, as a text comment on Instagram rather than a visual element. Had Prince wanted his text comment to be read as a visual addition to the original work, he would have made changes to the default format for Instagram comments. Instead, Prince’s reliance on default settings means that a reasonable observer would read these text additions as part of an Instagram post of McNatt and Graham’s photographs. (Ex. 14 (Sussman Rpt.) ¶ 39.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 43 of 54 44 113. It has been argued that Prince made other “alterations” to Plaintiffs’ works, such as enlarging the original works, and printing with colored-ink. However, these alterations are inconsequential because they do nothing to alter the visual impact of the original works. A reasonable observer would recognize the image whether it was a black-and-white work printed using colored ink or black and white ink. They similarly would recognize the image as the same image presented in a different size, and on a different medium (a printed canvas as opposed to a photograph). (Ex. 14 (Sussman Rpt.) ¶ 40.) 114. The Prince Works do not convey a different meaning than Plaintiffs’ Works. (Ex. 14 (Sussman Rpt.) ¶ 41.) Reasonable viewers would recognize the Prince Works as Plaintiffs’ Works presented in a different medium. (Ex. 14 (Sussman Rpt.) ¶ 44.) None of Prince’s alterations ultimately alter the visual impact or meaning of the original works. (Ex. 14 (Sussman Rpt.) ¶ 45.) ii. Commercial 115. The Prince Works are commercial in nature. (Ex. 13 (Whitaker Rpt.) ¶ 41; Ex. 15 (Holzen Reply Rpt. (Graham)) ¶ 87; Ex. 16 (Holzen Reply Rpt. (McNatt) ¶ 8.) 116. The commercial nature of the Prince Works is reflected through their price points and the ecosystems through which the works were sold. These settings of sale include some of the most powerful and large-scale commercial galleries in the arts. Prince’s New Portraits work is a copy and extension of the earlier work but lacks the same kind of creative redefinition of the original imagery as his earlier work. Instead, the new Prince work functions in context as a kind of “high-end, branded commodity product traded on an art market.” (Ex. 13 (Whitaker Rpt.) ¶ 41.) 117. Prince’s work was exhibited at the Blum & Poe gallery for less than two months, before it was sold for tens of thousands of dollars and moved to the private collection of its purchaser. (Ex. 64 (Blum & Poe Response to RFA) No. 17.) G. Nature of Plaintiffs’ Works 118. Plaintiffs’ Works are creative and expressive. (Ex. 1 (Graham Compl.) Exhibit A; Ex. 2 (McNatt Compl.) Exhibit A; Ex. 11 (Harrison Rpt.) at 7; Ex. 14 (Sussman Rpt.) ¶ 18; Ex. 10 (Coleman Rpt.) ¶ 22; Ex. 13 (Whitaker Rpt.) ¶ 30; Ex. 9 (Bogre Rpt.) ¶ 38.) 119. Plaintiffs’ Works are not “documents” (Ex. 25 (Wolf Rpt.) ¶ 17) but rather art; the use of photographs in commercial settings does not preclude their status as art. (Ex. 13 (Whitaker Rpt.) ¶ 15.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 44 of 54 45 120. Plaintiffs’ Works qualify as art because (Ex. 10 (Coleman Rpt.) ¶ 22.) in both modernist and postmodernist discourse art is whatever an artist says it is—that is, that any object or action, even an idea written down on paper or expressed aloud, can constitute a work of art if someone acting in the role of artist claims it as such. (Ex. 10 (Coleman Rpt.) ¶ 23.) Moreover, Plaintiffs’ Works bear the marks of art. They reflect at least two sets of biases, two viewpoints, on which its existence in the world is predicated: • Those of the inventors, designers, and manufacturers of the system— camera, lens, film, darkroom equipment and chemistry—employed in the physical production of that particular image. (Ex. 10 (Coleman Rpt.) ¶ 24.) • Those of the photographer who controls the specific application of that system to the occasion of the image in question. (Ex. 10 (Coleman Rpt.) ¶ 24.) Plaintiffs’ Works, are a manifestation of these biases interacting with whatever was before the lens at the moment of exposure. (Ex. 10 (Coleman Rpt.) ¶ 25.) 121. Any response to Plaintiffs’ Works—whether from an actively analytic/critical attitude or a more passively absorptive, spectatorial mode—involves the viewer with the ostensibly invisible presence of the photographer as well as the more insidiously covert influence of the medium itself. (Ex. 10 (Coleman Rpt.) ¶ 26.) 122. Plaintiffs’ photographs are a form of collaboration between subject, photographer, and medium. The last of these operates subcutaneously—beneath the skin of the imagery; most commonly, it calls as little attention to itself as possible, seeking no credit for the final results, even if in fact it dictates them outright. The more immediate, observable transaction is between subject and photographer; it is in this dialogue— sometimes contestual and sometimes cooperative—that control of the final image is negotiated. (Ex. 10 (Coleman Rpt.) ¶ 27.) 123. Photography as performed by Graham and McNatt involves a set of both conscious and intuitive decisions that inherently qualify as interpretive, and thus creative. (Ex. 10 (Coleman Rpt.) ¶ 29.) 124. Plaintiffs’ Works belong to the genre of classical portrait photography. In each, considerations such as pose, lighting, background, type of camera, lens, and the like all factored into the photographer’s decision-making and artistic processes. In order to capture Rastafarian Smoking a Joint, Graham, at his own direction and expense, spent approximately two weeks in May 1996 trekking through the villages and mountains of Jamaica, carrying with him his photography equipment and mobile studio, to capture photographs of the Rastafarian people in their surrounding environment. (Ex. 1 (Graham Compl.) ¶ 19; Ex. 31 (Graham Tr.) at 115:6-9; Ex. 11 (Harrison Rpt.) at 7-8.) Graham worked to convince the Rastafarians that became the subjects of his photographs that his purposes were artistic and to overcome an inherent distrust due to his “outsider” status. (Ex. 1 (Graham Compl. ¶ 19; Ex. 31 (Graham Tr.) at 118:21-119:16; Ex. 11 (Harrison Rpt.) at 8.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 45 of 54 46 125. To produce Kim Gordon I, McNatt spent approximately three hours shooting Ms. Gordon and purchased and/or provided his own equipment, including a roll of seamless grey nine-foot background paper which appears behind Ms. Gordon in Kim Gordon I, a portable seamless hanging system, and Autopoles for light and background set-up and then spent another approximately twelve hours in post-production (including directing the editing, retouching, processing, and conversion work), culminating in the publication version of Kim Gordon I. (McNatt Decl. ¶ 2; Ex. 2 (McNatt Compl.) ¶ 17; Ex. 11 (Harrison Rpt.) at 8.) 126. Plaintiffs’ Works—McNatt’s Kim Gordon I and Graham’s Rastafarian Smoking a Joint—are art photographs that fall within the artistic tradition of portraiture. (Ex. 9 (Bogre Rpt.) ¶ 45.). Portraiture is an established artistic genre with a long tradition. Generally commissioned, a well-executed portrait should show an inner essence of the subject, from the artist’s point of view, rather than be a pure representation. (Ex. 9 (Bogre Rpt.) ¶ 44.) 127. McNatt’s portrait, Kim Gordon I, is a successful portrait. It is not a pure representation. McNatt’s choice of black and white abstracts reality and emphasizes form and emotion, qualities that noted essayist Clive Bell claimed were essential to art. Similarly, Graham’s work, Rastafarian Smoking a Joint, is a successful portrait. It is not pure representation, and Graham’s choice of black and white also abstracts reality and emphasizes form and emotion. (Ex. 9 (Bogre Rpt.) ¶ 44.). 128. Plaintiffs’ Works shows “pathos, interesting artistic choices in subject, lighting, framing, and intact-ness.” (Ex. 13 (Whitaker Rpt.) at ¶ 42.) For example, Graham seeks truth and authenticity from his subjects, aiming to create a portrait of “a person when they are not trying to be something for the camera.” (Ex. 31 (Graham Tr.) at 235:6-8.) 129. Graham used his creativity and artistic talent to capture the moment as he envisioned the work artistically, composing the photograph to amplify his creative intent for the photograph, Rastafarian Smoking a Joint. McNatt used his creativity and artistic talent to capture the moment, bringing the camera to his eye and composing the photograph Kim Gordon I. (Ex. 14 (Sussman Rpt.) ¶ 18.) 130. Both artists made many artistic and creative decisions. For example, Graham made decisions as to lighting, composition, posing of the subject, etc. (Ex. 14 (Sussman Rpt.) ¶ 20.) Likewise, McNatt made decisions regarding the backdrop, lighting, composition, pose, and expression of the subject. (Ex. 14 (Sussman Rpt.) ¶ 21.) 131. Aside from the artistic decisions that both Graham and McNatt made in the process of creating the photographs, the images themselves also have artistic visual impact. (Ex. 14 (Sussman Rpt.) ¶ 22.) 132. Graham’s artistry and photographic achievement in Rastafarian Smoking a Joint amplified the Rastafarian’s presence by the simplified contrast of white background against the shape of the standing man composed in a central place with symmetry. The Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 46 of 54 47 choice of the white background further shows the negative space around the subject articulating the shape of his mane of hair. The image is iconic. It is a strong image with an interesting subject. The use of the high contrast of dark against light is similar to a silhouette, a popular mode of capturing the essence of a portrait developed in the 17th century. (Ex. 14 (Sussman Rpt.) ¶ 26.) 133. McNatt’s portrait of Kim Gordon in Kim Gordon I also features a simple, strong composition. While the subject’s stance and positioning in the frame is symmetrical, McNatt introduces asymmetry and interest by illuminating the subject’s left side while keeping her right side in shadow. Gordon is relatively unadorned and wearing a simple white t-shirt, but McNatt’s image immediately and effectively communicates a personality through certain details such as Gordon’s hair obscuring her eyes and her almost challenging stance. The image of Gordon is enigmatic and creates interest. (Ex. 14 (Sussman Rpt.) ¶ 27.) H. Amount and Substantiality 134. The amount of Plaintiffs’ Works used in Prince’s works in relation to the whole is substantial to the extent of constituting the core visual identity of the works. (Ex. 13 (Whitaker Rpt.) ¶ 44; Ex. 16 (Holzen Reply Expert Rpt. (McNatt)) ¶ 43; Ex. 6 (Holzen Rpt. (Graham)) ¶ 59.) 135. If McNatt and Graham’s works, however minimally cropped in the Prince Works, were subtracted, the Prince Works would be unidentifiable and wholly transformed. The Graham Work, for example, could technically be identified after the subtraction of the image, by matching the five words and one emoji, but even to do that presumes visual memory of the Graham Work. Given that the Prince Works were sold individually, not only as a group, the claim that the works at issue constitute a smaller portion of a larger series is invalid. (Ex. 13 (Whitaker Rpt.) ¶ 44.) 136. Graham’s and McNatt’s photographs are unobscured by any other mark, element, collage, or words on the surface of the image in Prince’s works. (Ex. 46 (Wallis Tr.) at 129:14-16.) I. Effects on Markets 137. The Prince Works negatively impact the market for Plaintiffs’ Works. (Ex. 9 (Bogre Rpt.) ¶ 54; Ex. 10 (Coleman Rpt.) ¶ 46; Ex. 13 (Whitaker Rpt.) ¶ 45.) 138. To begin, the Prince Works are likely to have a substantial negative effect upon the potential markets for or value of Plaintiffs’ Works (Coleman Rpt. ¶ 46) because it is hard to imagine that Mr. Prince’s appropriations would lead anyone to the original artists, since Mr. Prince deliberately leaves them nameless in his own appropriated works and their accompanying texts. (Ex. 10 (Coleman Rpt.) ¶ 47.) 139. Prince’s wholesale copying of Graham’s photograph and his creation of additional prints harms the value of Graham’s original limited edition prints, as a potential buyer who sees Prince’s work may believe that Graham agreed to license the Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 47 of 54 48 work and authorized additional prints. (Ex. 34 (Bogre Tr.) at 343:14-344:12.) Such a conclusion by a reasonable observer would harm not only Graham’s reputation but also the value of his prints. (Ex. 34 (Bogre Tr.) at 343:14-344:24; 346:23-25 (explaining that “in the art world when you edition something, you are verifying that you are never going to print more than that” and that “if I were considering buying one of Graham’s limited edition prints, which in my understanding as, say an art buyer, is only an edition of 8 and I see suddenly this image on the wall in a Richard Prince piece . . . I would not necessarily want to buy that picture”; “I would be concerned that it would impact the value of the limited edition.”).) 140. Prince claims to “know every artist in the world of any consequence, both dead and alive”, stating that “those are the artists that I respect” and that he is not interested in appropriating photographs from real artists. (Ex. 38 (Prince Tr.) at 48:13- 18; 229:23-230:9.) Prince’s disregard for the creative and artistic nature of Graham’s and McNatt’s photographs and his appropriation of their photographs in his work demonstrates Prince’s disrespect for Graham and McNatt as fellow artists. (Ex. 38 (Prince Tr.) at 282:19-22 (“I don’t think that someone working in the visual commercial field has any illusions about or shouldn’t have any illusions about trying to enter the art world.”).) 141. The precedent set by Prince’s high profile uses tends to encourage others to follow his example by appropriating these and other works by these photographers, thus devaluing not only these two images but putting at risk the entirety of their creative output. (Ex. 10 Coleman Rpt. ¶ 48.) Prince’s flippant and dismissive relationship to the posts incorporating the Plaintiffs’ images signifies Prince’s disrespect for Graham and McNatt as fellow artists, which, given Prince’s prominence as an artist, tends to depress the market value of these works of theirs in particular and their past, present, and future creative outputs in general. (Ex. 10 (Coleman Rpt.) ¶ 49.) 142. Photographers rely on both primary and derivative markets to generate revenue from their photographs. Moreover, the initial purpose of the original photograph may or may not relate to the many derivative works that are subsequently sold and licensed by the photographer. For example, at any point, a photographer may choose to license what was originally a photograph created for a magazine cover for countless other uses, for example, other magazines, books, advertisements, t-shirts, coffee mugs or as a fine art print exhibited on gallery walls and sold to collectors. (Ex. 9 (Bogre Rpt.) ¶ 55.) 143. Photographers can choose whether and when to monetize their work. Photographers can also choose how and in which markets to monetize their work. Photographers may choose not to sell or license their work in an effort to enhance the value of that work. Photographers may choose not to exhibit their works in certain mediums to preserve the value of their work. (Ex. 9 (Bogre Rpt.) ¶ 56.) 144. The value of photographs can vary over time, as can the opportunities to monetize said photograph. For example, licensing revenues for McNatt’s Kim Gordon 1 could skyrocket were she to be involved in a scandal or major life event. Other things can Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 48 of 54 49 influence the value of a photograph, such as a positive critical review, effective marketing campaign, auction sales, or noteworthy exhibitions. (Ex. 9 (Bogre Rpt.) ¶ 57.) 145. The photographer may also choose to create derivative works in the same or different media or with minor variations, including but not limited to (a) in color versus in black and white (or vice versa); (b) in different sizes; or (c) in different mediums. (Ex. 9 (Bogre Rpt.) ¶ 58.) 146. When determining if Prince’s unauthorized derivative work usurps the potential market for Plaintiffs’ Works, it is not necessary to analyze where or for how much Graham or McNatt have sold or licensed their work. Rather, the question is whether there is a potential market for new versions or new uses of the photograph which the unauthorized use has undermined. (Ex. 9 (Bogre Rpt.) ¶ 59.) 147. Graham sells limited edition prints of Rastafarian Smoking a Joint at A. Galerie and from his own studio. Rastafarian Smoking a Joint also is featured on the home page of A. Galerie, a noted Paris-based gallery for contemporary photography and an off-shoot of the more well-known Acte 2 gallery, created to “present the most influential photography masters” (Ex. 74 (Interview with Marion Rochard from Acte 2 Gallery, ART MEDIA AGENCY (Nov. 10, 2011), hnp://en.artmediaagency.com/31706/interview-with-marion-rochard-from-acte-2- gallery/); Ex. 9 (Bogre Rpt.) ¶ 60.). One limited edition print of Rastafarian Smoking a Joint is in the collection of noted photography art collector Henry Buhl. It is reasonable to conclude that the current value of Rastafarian Smoking a Joint as a fine art photograph has been compromised by the notoriety of Prince’s unauthorized derivative work. (Ex. 9 (Bogre Rpt.) ¶ 60.) 148. Prince’s unauthorized derivative work copying Graham’s Instagram post also precludes Graham from showing that work in a show of Instagram posted work as Prince has claimed copyright protection for his unauthorized derivative work. (Ex. 9 (Bogre Rpt.) ¶ 61.) 149. McNatt has licensed his Kim Gordon I to Italian Vogue. It is common practice for licensees of photographs to request exclusive licenses. Prince’s unauthorized derivative work directly impacts McNatt’s ability to license his image in the future, particularly if a client needs a limited time exclusive license, because the unauthorized work does not alter the original. Prince’s image mitigates exclusivity. (Ex. 9 (Bogre Rpt.) ¶ 62.) 150. McNatt participates in art exhibitions and auctions. Prince’s unauthorized derivative work directly impacts the value of Kim Gordon I for exhibition or auction because of the notoriety of Prince’s exhibitions. (Ex. 9 (Bogre Rpt.) ¶ 63.) 151. Moreover, if in the future, someone wanted to merchandize Plaintiffs’ Works (e.g., on t-shirts, coffee mugs, etc.), Prince’s unauthorized derivative work would compete directly with Plaintiffs’ Works for those opportunities. (Ex. 9 (Bogre Rpt.) ¶ 64.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 49 of 54 50 152. Because of the notoriety of appearing in a Prince show, Prince’s unauthorized copying of Plaintiffs’ Works—printing them larger and exhibiting them in a gallery—usurps the derivative use market for Plaintiffs’ Works as screen shots of an Internet post, should a curator consider producing an exhibition of work posted on Instagram. The Prince Works usurp the fine art exhibition market for the remaining limited edition prints of Rastafarian Smoking a Joint and Kim Gordon I. (Ex. 9 (Bogre Rpt.) ¶ 40.) 153. 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, which were essentially taken without permission to the substantial benefit of the Prince Works; the Prince Works have a categorically negative impact from a market standpoint analysis. (Ex. 13 (Whitaker Rpt.) ¶ 13.) 154. The Prince Works bear an economic relationship that is extractive in a commercial sense. The Prince Works owe unpaid artistic and commercial debts to the Plaintiffs’ Works in ways that go beyond gift economy definitions of art or protected notions of speech (i.e., artistic transformation or political protest). (Ex. 13 (Whitaker Rpt.) ¶ 14.) 155. The Prince Works have a substantial negative effect upon the economic nature of Plaintiffs’ Works. (Ex. 13 (Whitaker Rpt.) ¶ 45.) The potential market for Plaintiffs’ Works is not limited to the art market specifically. The “value of the copyrighted works” is a broader category; art market price and value of the works are not synonymous. (Ex. 13 (Whitaker Rpt.) ¶ 46.) 156. Prince’s New Portraits substantially affects the life of the McNatt and Graham works. If the Graham and McNatt pursued an Avedon aesthetic—“half-length pose, high-contrast lighting, and all-white backdrop”—then they intended their work to be seen relatively clutter free. The addition of commentary within Instagram is very different from the fact that a collector of Graham’s work would mentally picture Prince’s appropriation of it, and that would diminish the collector’s enjoyment and, relatedly, the price the collector would pay. It is now hard mentally to see the Graham and McNatt works without the Instagram frame. Whether or not Prince was trying to usurp Graham’s original market Prince’s work has a consequential, tarnishing effect on the current and future market of Graham’s and McNatt’s work. (Ex. 13 (Whitaker Rpt.) ¶ 50.) 157. In an analysis of “added value”, the subtraction of the Plaintiffs’ Works would almost entirely do away with the Prince Works. (Ex. 13 (Whitaker Rpt.) ¶ 52.) The Graham and McNatt works affected Prince’s process of working. They saved him considerable time in sourcing images: they serve as outsourced and unpermissioned labor. (Ex. 13 (Whitaker Rpt.) ¶ 55.) The effect of the Prince Works upon the potential market for or value of Plaintiffs’ Works is substantially negative. (Ex. 13 (Whitaker Rpt.) ¶ 56.) 158. Michelle Bogre, Associate Professor of Photography at Parsons School of Design, has expressed the opinion that the Prince Works will negatively impact the Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 50 of 54 51 potential market for Plaintiffs’ Works. (Ex. 9 (Bogre Rpt.) ¶ 54.) “Photographers rely on both primary and derivative markets to generate revenue from their photographs”. (Id. at ¶ 55.) “Photographers can choose whether and when to monetize their work,” or to not sell or license their work at all to enhance the value of that work. (Id. at ¶ 56.) The photographs’ values can vary over time, as can the opportunities to monetize said photograph. (Id. at ¶ 57.) “The photographer may also choose to create derivative works in the same or different media or with minor variations”. (Id. at ¶ 58.) “Mr. Graham sells limited edition prints of Rastafarian Smoking a Joint”; as Mr. Graham has not licensed this image commercially, the “value [of Mr. Graham’s work] has been compromised by the notoriety of Mr. Prince’s unauthorized derivative work”. (Id. at ¶ 60.) Prince’s “unauthorized derivative work copying Mr. Graham’s Instagram post also precludes Mr. Graham from showing the work in a show of Instagram posted work as Prince has claimed copyright protection for his unauthorized work”. Prince’s unauthorized derivative work directly impacts the value of McNatt’s Kim Gordon I because it affects McNatt’s ability to license his image in the future and to participate in art exhibitions and auctions. (Id. at ¶¶ 61-63.) “Moreover, if, in the future, someone wanted to merchandize Plaintiffs’ Works, Prince’s unauthorized derivative work would compete directly with Plaintiffs’ Works for those opportunities”. (Id. at ¶ 64.) Prince’s unauthorized derivative work usurps the market for Rastafarian Smoking a Joint and Kim Gordon 1 “because it’s no longer necessarily a limited edition, or viewers might not know it’s a limited edition. And if I buy it and it keeps appearing all over the place as a Richard Prince piece, it does devalue the limited edition that I thought I bought.” (Ex. 34 (Bogre Tr.) at 380:4-11.) Prince’s unauthorized derivative use may also further prevent Graham and McNatt from obtaining opportunities to license their works to other artists as they have already appeared in a Richard Prince show. (Id. at 383:18-384:2.) 159. Amy Whitaker, Assistant Professor in Visual Arts Administration at New York University, has expressed the opinion that “the Prince Works have a substantial negative effect upon the economic nature of Plaintiffs’ Works”. (Ex. 13 (Whitaker Rpt.) ¶ 45.) Because of Prince’s appropriation of Plaintiffs’ Works, “it is now hard mentally to see the Graham and McNatt works without the Instagram frame” (Ex. 13 (Whitaker Rpt.) ¶ 50.) 160. Dr. Douglass Coleman, a photography critic, historian, theorist, and curator, has expressed the opinion that Prince’s unauthorized appropriation of Plaintiffs’ Works will not have a positive effect on their market value in formats authorized by Graham and McNatt. Prince does not include the original artists’ names in his appropriated works and their accompanying texts. (Ex. 10 (Coleman Rpt.) ¶ 47.) Coleman further states he knows of “no instance” in which the use of a photograph without permission in a work that is then subject to a lawsuit has enhanced the market by providing publicity. (Ex. 35 (Coleman Tr. at 49:23-50:10).) The unauthorized usage of the works of Graham and McNatt “could very easily persuade others that the works of these two photographers are available for their reuse as well.” (Id. at 61:9-14.) Prince’s “implicit disrespect for their authorship of their work that is implicit in his unauthorized usage of their work diminishes them… in the public eye.” (Id. at 61:22-62:2.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 51 of 54 52 161. 162. Graham testified that had Prince come to him and asked to license Graham’s photograph in his New Portraits, “we would have entered into a negotiation, and if we had reached a fair negotiation, I would have – I would have allowed it.” (Ex. 31 (Graham Tr.) at 53:4-14; see also id. at 51:15-17 (“the normal procedure is that he would contact me, we would negotiate a license fee, and I would receive credit”).) 163. The man pictured in Rastafarian Smoking a Joint gave Graham his permission to take his photograph as part of body of work that Graham was creating, with the understanding that the photograph would be made available for publication and sale. (Ex. 31 (Graham Tr.) at 115:20-116:1.) 164. Graham testified, “We had a conversation and he agreed to be photographed under the conditions that I explained to him.” (Ex. 31 (Graham Tr.) at 116:25-2.) Graham testified that he specifically recalls telling the man that one of the purposes of taking the photograph was to re-sell the photo for money, the man understood that Graham would publish and sell the photograph, and the man gave Graham permission to photograph him with that understanding. (Id. at 117:14-118:4.) 165. Defendants’ expert concedes that a non-written release is enforceable under Jamaican law (Ex. 29 (Minott-Phillips Rpt.) ¶ 17.) 166. Defendant offers no evidence that the model did not understand what he discussed with Graham or in any way refused his consent to be photographed. (Ex. 8 (Miller Rpt.) ¶ 8.) 167. Defendants’ expert stated that he has no “evidence that any purported increase in Mr. Graham’s . . . fame has led to an increase in sales of [his] work.” (Ex. 47 (Wolf Tr.) at 124:17-125:7.) 168. Graham testified that the increase in the price of later prints of Rastafarian Smoking a Joint is a function of the tiered pricing structure of editions, such that “the first edition would be less expensive and the eighth edition would be the most expensive.” (Ex. 31 (Graham Tr.) at 69:3-8.) Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 52 of 54 53 J. Alleged License 169. 170. Prince never asked Graham for, and Graham never gave Prince, any express or implied permission to copy, reproduce, modify, distribute, display or make any other use of Rastafarian Smoking a Joint or prepare any derivative work therefrom. (Graham Decl. ¶ 3.) Prince never requested a license to Rastafarian Smoking a Joint from Graham. (Id. ¶ 14.) 171. Similarly, McNatt never agreed with Prince that Prince could copy and use Kim Gordon I without liability for infringement, as evidenced by the instant action. 172. Prince never requested permission to cover, display or make any other use of Kim Gordon I, and McNatt never gave Prince such permission. (McNatt Decl. ¶ 7.) Prince never contacted McNatt to ask for a license to Kim Gordon I. (Id. ¶ 9.) 173. Blum & Poe never requested permission to cover, display or make any other use of Kim Gordon I, and McNatt never gave Blum & Poe such permission. (McNatt Decl. ¶ 8.) 174. Defendant’s expert concedes that the terms of use for both Instagram and Facebook “state that any user who posts content on either site grants the platform”—i.e. Instagram and Facebook only—a non-exclusive license to the content. (Ex. 17 (Marwick Rpt.) ¶ 17; see also Ex. 42 (Marwick Tr.) at 127:22-24 (acknowledging that the license grant is “to the platform”).) 175. Section 5(1) of Facebook’s Statement of Rights and Responsibilities as of August 2010 stated “You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.” (Ex. 53 (Facebook Statement of Rights and Responsibilities).) 176. The current Facebook Terms of Service state, “You own the content you create and share on Facebook and the other Facebook Products you use, and nothing in these Terms takes away the rights you have to your own content.” (Ex. 77 (Facebook, Terms of Service, https://www.facebook.com/terms.php).) 177. The current Instagram Terms of Use state, “Nothing is changing about your rights in your content. We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a nonexclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).” (Ex. 108 (Instagram Terms of Use).). Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 53 of 54 Dated: November 9,2018 Respectfully submitted, CRAVATH, SWAINE & MOORE LLP, David R. Marriott David J. Kappos Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212)474-1000 dmarriott@cravath. com dkappos@cravath. com Attorneys for Plaintiffs Donald Graham and Eric McNatt 54 Case 1:16-cv-08896-SHS Document 161 Filed 12/11/18 Page 54 of 54