When a photographer sells a "limited edition" of a photograph, does that mean that she cannot later sell any additional prints of that photograph, even if the reprints differ in size and medium from the original edition? The answer is no, according to a federal judge who recently dismissed a collector's lawsuit claiming that artist William Eggleston violated the law by selling digitized reprints of some of his most popular photographs. The decision should comfort artists wishing to create new editions of prior work, and is a cautionary tale for collectors interested in works sold in multiples.
Background
Eggleston is known as a pioneer of color photography. Some of his most iconic works date from the early 1970s and include images of ordinary and even mundane aspects of American life. Eggleston created larger, digital versions (the "Reprints") of eight of his best-known photographs and sold them for record prices at auction last year.
In April 2012, Jonathan Sobel, one of Eggleston's top collectors, filed a lawsuit against Eggleston and the trustees of his artistic trust, seeking to stop the artist from selling the Reprints. By his Complaint, Sobel claimed that he owns limited edition copies of each of the eight photographs that were used to create the Reprints. Sobel alleged Eggleston created these "vintage" prints from photographic negatives or slides using a dye transfer process. He claimed that his photographs were part of limited editions, which is evidenced by the fact that the prints are individually numbered, usually with a fraction (the "Limited Edition Prints").
Sobel's Complaint alleged five claims: (i) violation of the New York Arts and Cultural Affairs Law ("NYACAL"), a statute that provides art purchasers with rights and remedies against art merchants who sell artworks produced in multiples such as photographs, (ii) fraudulent misrepresentation; (iii) negligent misrepresentation; (iv) unjust enrichment; and (v) promissory estoppel. As damages, Sobel sought the difference between the value of his collection of Eggleston photographs before and after the Reprint sales. He also sought punitive damages, as well as injunctive relief prohibiting Eggleston from any future sales of the Reprints or any reprints of other vintage photographs.
The Decision
On June 1, 2012, the defendants moved to dismiss the Complaint in its entirety. On March 28, 2013, Judge Deborah A. Batts of the United States District Court for the Southern District of New York granted the defendants' motion and dismissed Sobel's Complaint in its entirety.
Judge Batts found that Sobel could not, as a matter of law, claim that the defendants violated NYACAL by holding out the Limited Edition Prints as restricted to a maximum number of photographs and subsequently creating and selling the Reprints. NYACAL provides that, for multiples produced after 1949 and "offered as one of a limited edition, this shall be so stated, as well as the number of multiples in the edition, and whether and how the multiple is numbered." NYACAL § 15.03(6)(a). The statute further provides that, "[u]nless otherwise disclosed," the number of multiples stated "shall constitute an express warranty . . . that no additional numbered multiples of the same image . . . have been produced." NYACAL § 15.03(6)(b) (emphasis added). Interestingly, the statute only affords a warranty regarding past production of additional numbered multiples – the statute is silent concerning future production.
Judge Batts found that nothing in NYACAL prohibits the creation and sale of the Reprints. She held that, because the statute only provides an express warranty that no other multiples "have been produced" at the time of sale, Sobel could not prevail because there was no allegation that the Reprints already had been produced at the time that he purchased the Limited Edition Prints. Although Sobel argued that the court should consider legislative history showing the framers intended the statute to protect consumers by curbing the "deceptive" practices concerning the sale of multiples in the world of photography, the court refused to do so, finding that the statute was plain and unambiguous.
Moreover, Judge Batts found that NYACAL actually contemplates the reproduction of images previously sold in limited editions. The statute provides: "If the multiple was made from a master which produced a prior limited edition, or from a master which constitutes or was made from a reproduction of a prior multiple or of a master which produced prior multiples, this shall be stated." NYACAL § 15.01(4)(b). Per the court, the requirement of disclosure of the Limited Edition Prints to purchasers of the Reprints indicates that the creation of the Reprints does not violate the statute.
Judge Batts also dismissed Sobel's fraudulent misrepresentation claim. Notably, there was no allegation that any of the defendants made an explicit representation to Sobel that Eggleston would never create new editions of the photographs in question. Rather, Sobel argued that, by placing a fraction on the Limited Edition Prints, Eggleston promised that the photographs were limited edition works, and that no new prints would be created. Judge Batts found that while the fraction stated on the Limited Edition Prints could constitute a promise that Eggleston would never increase the number of prints in that Limited Edition, it could not as a matter of law constitute a promise that new editions from the same master would never be made. Judge Batts noted that, while the Limited Edition Prints and the Reprints were made from the same images, there were "markedly different" in medium and size – the Limited Edition Prints were created from negatives or slides via the dye transfer process, while the Reprints were digitally created and printed on an inkjet printer. The Limited Edition Prints, which are approximately 16 x 20 inches, are much smaller than the Reprints, which are 44 x 60 inches.
Judge Batts dismissed Sobel's three remaining claims for negligent misrepresentation, unjust enrichment and promissory estoppel. She also denied Sobel's motion to amend the Complaint. Per the court, statements that an executive of the Eggleston Artistic Trust had made to a magazine concerning the limited nature of Eggleston's editions could not give rise to a cognizable claim because: (i) there is no indication that Sobel had read the magazine article before purchasing the Limited Edition Prints and (ii) these statements do not constitute a promise that Eggleston would not reproduce the images in a different medium and different size.
To date, the defendants have not appealed the decision.
The Takeaway
Judge Batts's decision, presuming it stands, means that photographers can continue to reproduce images that they previously sold as "limited editions," at least where the reproductions differ in medium and size from the prior edition. We can therefore expect that photographers will continue to create digitized, poster-sized versions of their most popular images.
The decision is also a caveat emptor reminder to collectors, who must understand the non-obvious fact that a "limited edition" does not mean that an artist is limited to selling that edition. By way of example, when a collector buys a print that is marked 3/50, that does not necessarily mean that the artist will never sell more than 50 prints of that image. Because additional productions of an image beyond a limited edition could potentially affect the value of limited edition prints, collectors should bear this decision in mind, and consider whether they can obtain from the dealer and/or artist an explicit representation and warranty governing future reproduction of the image in question.
This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
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