Federal Judge Affirms that Fair Use Doctrine Permits Publisher to Include Film Magazine Images in Book
FOR IMMEDIATE RELEASE
CONTACT:
Jim Austin
Director of Publications
Pepper Hamilton LLP
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austinj@pepperlaw.com
Philadelphia, PA – August 6, 2009 – In a ruling important to authors, artists and publishers – as well as to fans of “monster master” artist Basil Gogos – Pepper Hamilton LLP recently defeated a lawsuit asserting copyright infringement and unfair competition claims against the co-author and publisher of a biography and retrospective of the artist who created dozens of memorable images of Dracula, Frankenstein, the Mummy, the Creature from the Black Lagoon and other staples of classic monster movies.
U.S. District Judge Michael M. Baylson on August 4 dismissed a lawsuit filed against J. David Spurlock and Vanguard Productions, the co-author and publisher of “Famous Monster Movie Art of Basil Gogos,” by Warren Publishing Company and James Warren, the former publisher of such magazines as Famous Monsters of Filmland, Eerie and Creepy. Spurlock, who also is a noted author and illustrator, was represented by Pepper partner M. Kelly Tillery and associates Christopher D. Olszyk and Cara M. Kearney.
From 1958 to 1983, Warren published Famous Monsters of Filmland and other magazines that catered to fans of monster movies. The cover of each issue featured movie monster artwork by a variety of artists, the most prolific of whom was Basil Gogos, a freelance artist who produced cover art for 51 of the 191 issues of Famous Monsters, as well as numerous other magazines and other publications. Gogos also has had a decades-long career producing Old West images, work for various men’s magazines and a wide variety of other types of artwork, but his monster movie art is his best-known work.
In 2004, Spurlock approach Warren about collaborating on a retrospective book on Gogos’ career and art, but the two never reached an agreement. Spurlock worked directly with Gogos to compile and produce the book, which was published in 2006. The book includes 10 reproductions of the covers of issues of Famous Monsters of Filmland magazine, and 14 other images that were used in the magazine.
In 2008, Warren filed suit, alleging Spurlock’s use of the images violated copyright and unfair competition laws. While the parties vigorously disputed whether Warren had any copyright to the artwork, the Pepper team argued that even if Warren did own the images, Spurlock’s republication of them was valid under the “Fair Use” Doctrine, which permits the use of copyrighted works for certain uses, including criticism, comment and scholarship. The Pepper team argued that Spurlock’s book is a work of scholarship, comment and research, and that his use of the images was to illustrate Gogos’ career and evolution as an artist, while Warren’s use was to attract attention to his magazines.
Judge Baylson agreed, holding that Spurlock’s book fits “comfortably within” the categories of work protected by the Fair Use Doctrine. He also rejected Warren’s contention that publication of the book interfered with Warren’s plans for a coffee-table book on his magazines, noting that Warren had taken no significant steps to produce a book until after Spurlock’s book was published, and that witnesses had testified that Spurlock’s book would not adversely affect the market for Warren’s book if it were published.
Warren also argued that Spurlock’s use of “Famous Monster” in his book title suggested an affiliation with Warren’s magazines, in violation of unfair competition laws. The Pepper team successfully argued that Warren had abandoned any common law trademark or other rights since he had not used them since 1983, when the publication of the magazine ceased.
The court’s order and opinion are attached. Mr. Tillery is available for interviews regarding this case. To arrange an interview, contact Jim Austin at 215.981.4779 or austinj@pepperlaw.com.
Pepper Hamilton LLP is a multi-practice law firm with 500 lawyers nationally. The firm provides corporate, litigation and regulatory legal services to leading businesses, governmental entities, nonprofit organizations and individuals throughout the nation and the world. The firm was founded in 1890.
