Tuesday 27 September 2011

US Court grants preliminary injunction to prevent distribution of photographic work

Last month, the US District Court for the Southern District of New York granted an injunction to the owner of a photo of the Leonardo da Vinci painting 'Salvator Mundi' until the Court issues a final judgment in a copyright infringement case brought by the owner of the photo.

By way of background to the case, earlier this year, the painting 'Salvator Mundi' was authenticated as being a long lost painting by Leonardo da Vinci. While it was known within the art community that the painting was associated with da Vinci, the authentication was widely reported around the world as the discovery of new da Vinci paintings is extremely rare. Arrangements were then made to exhibit the work in the National Gallery in London. To promote the exhibition, the plaintiff in the case, Salvator Mundi LLC ("SMLLC") worked with the owners of the painting to commission a [so-called] 'high resolution digital photographic interpretation' of the painting for use in catalogues and fine art books (the "Photographic Work").

The Photographic Work was created by Timothy Nighswander, a professional art photographer, with experience photographic original fine art by numerous well-known artists. Copyright in the Photographic Work was assigned to the plaintiff.

SMLLC had allowed various media outlets to publish low-resolution digital copies of the Photographic Work in connection with news reports of the restoration of the painting and its exhibition in the National Gallery. These were displayed on the Internet on various news websites. However, it retained all rights in the image and no one else was allowed to photograph the painting.

The defendants copied the Photographic Work from one of the news sites and made unauthorised copies and public displays of it - including offering the image for sale on merchandise on the defendants' websites.

When SMLLC wrote to the defendants asking them to stop offering copies of the Photographic Work for sale, the first defendant said she was determined to distribute the image and would do so for free if the plaintiffs continued to harass her.

Therefore, SMLLC filed the
claim for copyright infringement, inter alia, seeking a preliminary injunction to prevent the defendants from copying, distributing and publicly displaying the Photographic Work or otherwise infringing SMLLC's exclusive rights in the work.

Per the title, this preliminary injunction was
granted against the first defendant, Laura Sotka, on 11 August 2011. It has been separately reported that a permanent injunction had already been entered a few days before against the first defendant which permanently prohibited the second defendant, Sean Broihier, from using or displaying the Photographic Work in any way. This was likely the result of settlement discussion. Therefore, it remains to be seen whether Sotka will fight on.

For anyone who wants to see the original painting, it is due to be exhibited in the National Gallery in London from November 2011. Details of that exhibition

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