Lewin v. Foundation

GIDEON LEWIN, Plaintiff, v. THE RICHARD AVEDON FOUNDATION, Defendant.

11-CV-8767 (KMW) (FM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 26, 2015

OPINION & ORDER

WOOD, U.S.D.J.:

Plaintiff/Counterclaim Defendant Gideon Lewin brings this action against Defendant/Counterclaim Plaintiff the Richard Avedon Foundation (the "Foundation"). Lewin seeks a declaratory judgment that he is the copyright owner of photographs he created concerning famed photographer Richard Avedon, as well as the owner (but not copyright holder) of certain prints created by Avedon, and allegedly gifted to Lewin. Lewin also claims that the Foundation tortiously interfered with a publishing contract between Lewin and a book publisher. The Foundation counterclaims, seeking a declaratory judgment that it is the copyright owner of the above-mentioned photographs, and brings claims for conversion, replevin, breach of fiduciary duty, fraud, and the misappropriation of trade secrets.

Lewin moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on all of his claims. The Foundation cross-moves for summary judgment on its copyright ownership, conversion, replevin, and faithless servant liability claims, and seeks dismissal of Lewin's tortious interference claim. For the reasons stated below, Lewin's motion is DENIED in part, and GRANTED in part. The Foundation's motion is DENIED in part, and GRANTED in part.

I. BACKGROUND

Lewin worked for Richard Avedon, a world-renowned photographer and owner of Avedon Studio (the "Studio"), from 1964 to 1980. Lewin began work at the Studio shortly after he graduated from art school. (Lewin Statement of Undisputed Facts ("Lewin SUF") [ECF No. 90] at ¶¶ 1-2). He initially worked as a photography assistant to Avedon, and then in 1965, was promoted to be Avedon's studio manager. (Id. ¶¶ 2-3).

The parties disagree as to what were the responsibilities of assistants and studio managers employed by the Studio. Lewin claims that his responsibilities included "setting up the Avedon studio for photographic shoots, lighting, printing photographic prints for shows, printing limited edition prints of photographs, administrative tasks, making travel arrangements, traveling with Avedon on shoots, logistics, customs related activities, correspondence with contacts on locations, and the designing and building of sets." (Compl. [ECF No. 1] at ¶ 12). He specifically contends that his duties "did not include, require or contemplate that [he] would create photographs or act in any way as a photographer." (Id. ¶ 13).

The Foundation claims that assistants and studio managers were required to take photographs on Avedon's behalf. See (Foundation Statement of Undisputed Facts ("Foundation SUF") [ECF No. 84] at ¶ 31) ("The Studio photography assistants also would take photographs from time to time at Mr. Avedon's direction. For instance, Mr. Avedon would instruct his assistants to take photographs of him to use for publicity purposes.").

Lewin also alleges that he had a "special relationship" with Avedon, and that, because of this fact, Avedon allowed Lewin to have his own clients while remaining a Studio employee. (Lewin Mem. in Supp. [ECF No. 138] at 4). Lewin claims that by 1972, he worked out an arrangement with Avedon whereby, during times that Lewin was not specifically assistingAvedon, Lewin could have full use of Avedon's studio for Lewin's own clients, provided that doing so did not interfere with Avedon's work. (Lewin SUF ¶¶ 16-19). This agreement required Lewin to pay Avedon 60% of whatever fee Lewin received when Lewin's work required use of Avedon's studio. (Lewin Aff. [ECF No. 98] at ¶¶ 17-21).

The Foundation disputes this claim, and contends that in certain instances, Avedon would secure additional photography work for Lewin, related to Avedon's own clients. (Foundation Response to Statement of Undisputed Facts ("Foundation Response") [ECF No. 104] at ¶ 20). For instance, if Vogue hired Avedon to photograph a particular model, Vogue might pay Avedon an additional fee for behind-the-scenes photographs of that shoot. According to the Foundation, those behind-the-scenes images were sometimes photographed by Lewin, as an Avedon employee. In such instances, the Foundation claims that Avedon paid Lewin 40% of the fee Avedon's client paid Avedon for this additional work. (Id.)

It is uncontested that throughout his time working with Avedon, Lewin took approximately 4,200 photographs that involved Avedon or his work. (Foundation SUF ¶ 160). (Lewin Dep. [ECF No. 91-1] at 397). Lewin, in his complaint, places these photographs into eighteen distinct categories, all of which generally consist of either behind-the-scenes images documenting Avedon's photoshoots, portraits of Avedon or images that focus on him, or photographs of some of the work Avedon exhibited at museums and galleries across the country. (Compl. ¶ 31). Lewin retained the negatives for most or all of these images, and claims to own the copyright to them. See, e.g., (Lewin SUF ¶ 52) (asserting that the negatives of images Lewin photographed, concerning Avedon's exhibition in the Metropolitan Museum of Art, have been in Lewin's possession for thirty-six years); (id. ¶ 124) (claiming that the negatives of images Lewinphotographed, concerning certain portraits Lewin photographed of Avedon, have been in Lewin's possession for thirty-eight years).

Lewin alleges that he took all of these photographs on his own time, for personal reasons. See, e.g., (id. ¶ 46) (stating that Lewin shot all of the disputed photographs concerning the Metropolitan Museum of Art "on his time over several days, including a weekend"); (id. ¶ 219) (asserting that all of the photographs Lewin captured during his trip to Montana with Avedon were "personal snapshots," unrelated to his work for the Studio). According to Lewin, Avedon consented to these photographs, when consent was necessary, and sometimes offered Lewin suggestions as to how the photographs might be constructed; but Avedon never instructed Lewin to take these photographs, nor was taking the photographs a part of Lewin's employment with the Studio. See (Lewin Mem. in Supp. 17-26). The Foundation asserts that Lewin took these photographs at Avedon's behest, did so on Avedon's time, and typically used the Studio's equipment to do so. See (Foundation Mem. in Supp. [ECF No. 136] at 7-10).

Avedon died in 2004. (Foundation SUF ¶ 2). Upon his death, all of the copyrights Avedon owned passed to the Foundation. (Id.) Avedon had created the Foundation shortly before his death "with the mission of supporting the preservation of Mr. Avedon's legacy and body of work." (Id. ¶ 1).

In 2006, Lewin met with Norma Stevens, the Executive Director of the Foundation until 2009, to discuss his plan to write a book detailing his time working for Avedon. (Lewin SUF ¶ 337); (Roth Decl. [ECF No. 94] at ¶ 1) (describing Stevens as the first Executive Director of the Foundation, and noting that she left the Foundation in 2009). The parties dispute what transpired at that meeting. Lewin claims that during the meeting he showed Stevens approximately fifteen images that Lewin had photographed during his time working for Avedon—images he plannedto include in the book.¹ The Foundation argues that Lewin has no proof that he showed Stevens any photographs. See (Foundation Response ¶ 337) ("Lewin fails to provide any evidence, aside from his own affidavit, that confirms that he presented any images to any employee of The Foundation in May of 2006.").

Both parties agree, however, that after the meeting, Stevens sent an email to a colleague, which stated in part:

Gideon Lewin, one of Dick's [i.e. Avedon's] early assistants, was here today. He has many pics of Dick working (running after models?) and with Arbus and Marvin, etc. and is preparing a "dignified" book. I made it clear that the Foundation can't prevent him from using his pics, but our interest is the work, not exploiting the person.

(Lewin SUF, Ex. 1 [ECF 90-1] at RAF3296) (alteration added). At that time, representatives of the Foundation informed Lewin that the Foundation was too busy to work with Lewin on his project. (Lewin SUF ¶ 338).

Between 2010 and 2011, Lewin made a second attempt to secure the Foundation's involvement in his book project. To do so, he met with additional Foundation representatives, including John Avedon, Richard Avedon's son. (Id. ¶¶ 345, 347-49). During these meetings, the Foundation expressed its willingness to support Lewin's book project by providing research assistance and access to Foundation files. (Id. ¶ 351); (Foundation SUF ¶¶ 99-100). The Foundation also agreed to allow Lewin to license a limited number of Avedon-created images for use in the book. (Foundation SUF ¶¶ 131-33). In March 2011, Lewin contracted with Assouline Publishing to publish the book. (Lewin SUF ¶ 356). Part of the contract required Lewin toreceive approval from the Foundation for the use of certain Avedon-created images. (Foundation SUF ¶ 107).

Over the next few months, Lewin submitted to the Foundation mock-ups of the book and draft versions of its text. (Id. ¶¶ 136, 146). The Foundation reviewed these submissions, and made suggestions for changes. (Lewin SUF ¶ 361).

The Foundation claims that during this review and revision process, it became concerned that some of the images Lewin claimed he owned actually belonged to the Foundation. (Foundation SUF ¶¶ 147-50). The Foundation eventually spoke with Lewin and claimed ownership over the photographs discussed above. (Id. ¶¶ 150-54); (Lewin SUF ¶ 362).

Around this time, the Foundation informed Assouline that it would no longer continue to work with Assouline or Lewin on Lewin's book. (Foundation SUF ¶ 161). The Foundation told Assouline that if Assouline proceeded with Lewin's book, Lewin and Assouline would "have a legal battle on [their] hands." (Lewin SUF ¶ 365). Assouline subsequently terminated the publishing...