andrew k. jacobson (csbn 148583) laura koch...

ANDREW K. JACOBSON (CSBN 148583)LAURA KOCH (CSBN 266072)BAY OAK LAW 180 Grand Ave, Ste 700Oakland, California 94612Telephone: (510) 208-5500Fax: (510) [email protected]@bayoaklaw.com

CAROLINE N. VALENTINO (CSBN 118438)HAIMS VALENTINO LLP180 Grand Ave, Ste 700Oakland, California 94612Telephone: (510) 835-0500Fax: (510) [email protected]

Counsel for Plaintiffs

United States District CourtSouthern District of New York

____________________________

ROBERT J. LANG, NOBORU MIYAJIMA,MANUEL SIRGO, NICOLA BANDONI,TOSHIKAZU KAWASAKI, AND JASON KU,

Plaintiffs,

v.

SARAH MORRIS,

Defendant.

11 CV 8821 (BSJ) (AJP)

ECF Case

MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON ISSUE OF

DEFENDANT MORRIS’S LIABILITY FOR COPYRIGHT INFRINGEMENT

Case 1:11-cv-08821-BSJ Document 46 Filed 06/29/12 of 30

TABLE OF CONTENTS

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. ORIGAMI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. FACTUAL BACKGROUND OF CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. STANDARD FOR SUMMARY JUDGMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. MORRIS MISAPPROPRIATED THE ORIGAMI ARTISTS’ ORIGINAL WORKS.. . . . . . . . . . . 12

A. THE CREASE PATTERNS ARE ORIGINAL TO THE ORIGAMI ARTISTS... . . . . . . . . 12

B. THE ORIGAMI ARTISTS POSSESS THE RIGHT TO MAKE DERIVATIVE WORKS

FROM THEIR CREASE PATTERNS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. MORRIS’S APPROPRIATION OF PLAINTIFFS’ WORKS WAS NOT FAIR USE... . . . . . . . . . 14

A. THE FAIR USE DOCTRINE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. FIRST FAIR USE FACTOR: MORRIS’S USE OF PLAINTIFFS’ WORKS WAS FOR

COMMERCIAL PURPOSES AND WAS NOT TRANSFORMATIVE... . . . . . . . . . . . . . 15

C. SECOND FAIR USE FACTOR: NATURE OF THE COPIED WORK.. . . . . . . . . . . . . . 18

D. THIRD FAIR USE FACTOR: AMOUNT AND SUBSTANTIALITY OF THE PORTION

TAKEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

E. MORRIS’S APPROPRIATION OF PLAINTIFFS’ WORKS ADVERSELY AFFECTS THE

POTENTIAL MARKET FOR DERIVATIVE WORKS.. . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

MEMO IN SUPP. OF MOT FOR SUMM. JMT. RE DEFENDANT MORRIS’S

LIABILITY FOR COPYRIGHT INFRINGEMENT ii


TABLE OF AUTHORITIES FEDERAL CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 17-20, 22

Cariou v. Prince, 784 F.Supp.2d 337 (S.D.N.Y 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Castle Rock Entertainment, Inc., v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 17, 20, 23

Comptone Company Ltd. v. Rayex Corp., 251 F.2d 487 (2d Cir. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 111 S. Ct. 1282 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 105 S.Ct. 2218 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18, 20, 22

Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104 (2d Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Heublein v. United States, 996 F.2d 1455 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Knight v. U.S. Fire Ins. Co., 804 F.2d 9 (2d Cir.1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


LIABILITY FOR COPYRIGHT INFRINGEMENT iii


Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

J.D. Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Matsushita Elec. Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ringgold v. Black Entm<t Television, Inc., 126 F.3d 70 (2d Cir. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rogers v. Koons, 960 F.2d 301, 310 (2d Cir.), cert. denied, 506 U.S. 934 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22-24

Salinger v. Colting, 641 F.Supp.2d 250, 262 (rev'd on other grounds, 607 F.3d 68 (2d Cir. 2010)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305 (2d Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Warner Bros. Entm’t v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Williams v. Smith, 781 F.2d 319 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

FEDERAL STATUTES

17 U.S.C. § 101.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 22

17 U.S.C. § 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

17 U.S.C. § 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22


LIABILITY FOR COPYRIGHT INFRINGEMENT iv


Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

OTHER AUTHORITIES

H.R.Rep. No. 1476, 94th Cong., 2d Sess. 65-66 (1976) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3 Nimmer on Copyright, § 13.05[A] at 13-80. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

U.S. Constitution, Article I, Section 8, Clause 8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


LIABILITY FOR COPYRIGHT INFRINGEMENT v


PRELIMINARY STATEMENT

This case is about several origami artists whose copyrighted crease patterns were

stolen by Sarah Morris. Without licensing or attribution, Morris used origami crease

patterns created and owned by plaintiffs Robert J. Lang, Noboru Miyajima, and Jason

Ku (?Origami Artists,” unless otherwise mentioned ), to create dozens of unauthorized1

derivative works (?Infringing Works”) for her personal profit and professional

advancement. Morris also lied to the public about the origin of the crease patterns at

issue, repeatedly claiming her works were based on ?traditional” patterns, when they

were in fact part of a modern revolution in origami art. Morris sold many of the

Infringing Works for tens of thousands of dollars. After being caught, Morris initially

evaded discussion of the issue, then admitted only to using Robert Lang’s crease

patterns as “inspiration.” She now admits to wholesale copying of the Origami Artists’

crease patterns. (Declaration of Andrew K Jacobson (“Jacobson Decl.”), Deposition of

Sarah Morris, taken May 16, 2012 (“Morris Depo.”), pgs. 113-125). Instead, Morris

hopes to convince the court to stretch the boundaries of fair use out far enough to allow

her to slip inside its protective fence.

Self-serving commentary by misappropriators cannot be sufficient to allow

copyright holders to be stripped of the exclusive right to create derivative works granted

by the Copyright Act. If Morris’s actions are immunized from claims of copyright

infringement under the defense of fair use, it will be open season for artists like her, who

think it is acceptable to browse the catalogs of other artists, take what appeals to them,

and create derivative works to sell as their own.

The fair use defense is an important restraint on the potentially stifling effects of

copyright on the creation of new art and artistic expression. It was not intended to force

artists to accept the wholesale incorporation of their art into works sold by others,

Three original plaintiffs – Manuel Sirgo of Spain, Nicola Bandoni of Italy, and Toshikazu1

Kawasaki of Japan – were unable to meet the financial burden of continuing in the case, and theirclaims have been voluntarily dismissed.


LIABILITY FOR COPYRIGHT INFRINGEMENT 1


without permission or attribution.

Plaintiffs Lang, Miyajima, and Ku move for summary judgment on the issue of

Morris’s liability for the First through Sixteenth and Twentieth Claims for Relief of the

original complaint. Based on the undisputed material facts, Morris copied the Origami2

Artists’ copyright-protected crease patterns, without transforming them. Morris’s fair

use defense fails, and she is liable for copyright infringement.

I. STATEMENT OF FACTS.

A. PARTIES.

Dr. Robert Lang is a physicist and artist

who has made a living for more than ten years as an

origami artist. His work has been featured in many

articles, such as The New Yorker in February 2007

(Jacobson Decl., Ex. M). Morris praised his work –

without revealing that she was copying from Dr.

Lang’s work – in an interview entitled “Diagram of a

Headache.” (Jacobson Decl., Ex. B.) Dr. Lang has

exhibited his origami crease patterns at New York’s

Museum of Modern Art (Declaration of Robert Lang

(“Lang Decl.”, ¶ 13), among other fine art museums

and galleries, and he is currently displaying his

colored origami crease patterns at the Japanese

American Museum in Los Angeles, through August

2012; thereafter it will travel across the nation. He

sells his crease patterns (Lang Decl., ¶¶ 20-21), and

Lang’s “Grasshopper” Crease Pattern.

Morris, Grasshopper [Origami]

The remaining Origami Artists moved for an order granting leave to file an amended2

complaint to add several claims for works that were disclosed during discovery. The motion wasfiled on May 30 , and Defendant Morris has not opposed the motion. The deadline to fileth

dispositive motions in the case was not extended. MEMO IN SUPP. OF MOT FOR SUMM. JMT. RE DEFENDANT MORRIS’S



he has huge colored crease patterns permanently installed in intersections in Santa

Monica, CA. Lang Decl., ¶ 29vi.

Collectors all over the world collect Dr. Lang’s art, and he has collaborated with

artists of his own choosing, such as Kevin Box; they created a limited series of bison

origami sculptures and crease patterns that sell for $120,000 each. Lang Decl., ¶ 22. He

has authored many books on origami, including “Origami Design Secrets -

Mathematical Secrets for an Ancient Art,” Lang Decl., ¶ 10, which contains

crease patterns that Ms. Morris misappropriated. Since 2004, Dr. Lang has also

maintained the www.langorigami.com website, Lang Decl., ¶ 11), from which Ms.

Morris misappropriated other crease patterns.

Noboru Miyajima is an origami artist from

Tokyo, Japan. He has been making origami since he

was four years old. While he works full-time for a

civil court in Kawasaki, Japan, he also gives talks on

origami, displays his crease patterns and models,

and earns income making origami for Japanese

television shows and publishing his crease patterns

internationally (Declaration of Noboru Miyajima,

(“Miyajima

Decl.”), ¶¶ 9-11). Since 2002, he has maintained a

website that has galleries of different origami models

and crease patterns. (Miyajima Decl., ¶ 12.) He

created at least nine crease patterns that Sarah

Morris used. (Miyajima Decl., ¶ 10). Sarah Morris

used his crease patterns Bat, Cat, Mommoth,

Penguin, Swan, Weasel and Wolf for her works. See

Jacobson Decl., Ex. C, Morris Resp. to Reqs. For

Miyajima’s Swan Crease Pattern

Morris, Swan [Origami]MEMO IN SUPP. OF MOT FOR SUMM. JMT. RE DEFENDANT MORRIS’S



Admission.

Jason Ku is a graduate student in mechanical engineering at the Massachusetts

Institute of Technology (“MIT”). He has been doing origami since he was young. He was

the President of MIT’s origami club, OrigaMIT (Declaration of Jason Ku, (“Ku Decl.”), ¶

5), and has lectured about origami, both around the United States and in Singapore and

Japan. (Ku Decl., ¶ 6). He has displayed his crease patterns on the Internet since 2001.

Sarah Morris used his Harpy crease pattern for her work, “Angel.” (Jacobson Decl., Ex.

B, Morris Resp. to Reqs. For Admission,.)

Sarah Morris, defendant in this case, is an artist and filmmaker, based in New

York.

B. ORIGAMI.

Origami literally means “paper-folding.” Japan has had a very long history

with paper folding, going back many hundreds of years. Being accomplished in origami

was considered one of the arts necessary to being part of the samurai or nobility classes.

Being able to bring a single piece of paper to life, without any cutting or pasting, was a

mark of culture. Origami began a renaissance in the middle of the 20 century. Akirath

Yoshizawa lived in complete poverty while developing hundreds of new designs. He

breathed new life into origami by creating new ways of notating how to fold that do not

require any words. These are called origami “diagrams.” These origami diagrams were

later further developed into what we call today “crease patterns.”

Crease patterns show many – but not necessarily all – of the folds necessary

for a particular origami work. Origami artists have several purposes in creating crease

patterns. First, it acts as a kind of mathematical “proof” to show that all of the folds fit

on one (usually square) piece of paper. Second, for extremely advanced folders, it can act

as a kind of instruction. However, crease patterns are far more than just instructions.

Crease patterns also show another way of seeing how the origami artists are expressing

themselves. It reveals the styles and methods that the origami artist uses to reach the




final goal. Many origami artists have a constant

goal of being as life-like as possible. One of the

purposes of a crease pattern is to show the

elegance of the origami artists’ solution. There are

many origami ways of making a body or a limb.

An origami artist wants to use as little of the paper

as necessary, while trying to be life-like. Crease

patterns reveal how origami artists solve these

issues, and can be very distinctive. There is also a

real beauty to crease patterns. Crease patterns show a lot of information in a simple,

elegant way. Miyajima Decl., ¶¶ 3, 5, 6; see also Lang Decl., ¶ 29 ; Ku Decl., ¶ 8-10.

The central issue of this case is whether

crease patterns are sufficiently expressive to qualify

for copyright. Morris believes that they do not.

However, as plaintiff’s expert Meher McArthur

states, origami crease patterns “contain the keys to

the creation of the final art work and are an integral

part of the final art work. The crease patterns are

very different than instructions for folding . . . .

Indeed, the crease pattern is an art work unto

itself.” McArthur Expert Witness Report, pg. 2, attached to the Declaration of Meher

McArthur (“McArthur Report”). Crease patterns “reflect the artistic creativity . . . of the

origami artists, as in some works the artists simplify the origami design and select only

certain of the creases or lines to exhibit, while in others particular colors are used to

create a desired dramatic or subtle effect.” Id., pgs. 2-3. Ms. McArthur has exhibited

colored crease patterns, and many guests “have commented on the beauty and intimacy

of the framed crease patterns in the exhibition, and some have actually said that they

Ku’s “Harpy” crease pattern.

Morris, Angel [Origami]




like the crease patterns even more than the folded pieces. There is no doubt that the

works designed and folded by origami artists and their respective crease patterns and

are reflective of the expression and creativity of the artist who created them.” Id.

C. FACTUAL BACKGROUND OF CASE.

Beginning in late 2006 (Morris Depo., 29:19-30:8, attached to the Jacobson

Decl., Ex. A), Ms. Morris created at least 80 works in her “Origami” series of paintings.

She admits that sixteen of them were based upon the crease patterns of Lang, Miyajima,

and Ku (Jacobson Decl., Ex. C (Resp. to Lang’s Reqs. For Adm, 4-37, Resp. To

Miyajima’s Reqs. for Adm., nos. 4-23; Resp. To Ku’s Reqs. For Adm., nos. 1-3; see also

Morris Depo., pg. 113-125). She or her assistants would download the crease pattern

from the Internet (for Miyajima’s crease patterns and Ku’s Harpy, and some of Lang’s),

and take others from Lang’s 2003 book copyright book, Origami Design Secrets.

(Morris Depo., pg. 31:23- 35:7.) In her own words:

“when I had the idea to use existing found origami crease patterns, I,the first thing I did was I looked on the Internet. We looked at severalbooks on origami. [¶] One of the books in particular that we looked at was,I don't remember exactly when we looked at this, but we definitely lookedat Robert Lang's book, Origami Insects And Their Kin. [¶ ] And we lookedon the Internet, we saw there were people doing traditional origamicurrently. I mean I didn't have access to older books. [¶] We saw a lot ofwebsites and flicker pages that had images of crease patterns and, ofcourse, of the final art form. And we used, sometimes we -- I used thosecrease patterns off the Internet on sites called like freeorigami.ifar.Sometimes they were on the individual sites, sometimes they were frombooks. I did buy Origami Design Secrets.”

Morris Depo., 22:17-23:15 (emphasis added). Ms. Morris does not think anything is

wrong with this: “ I didn't see how taking a diagram for folding paper, a paper model,

and using that as the starting point for an image that was to become a painting of mine, I

[do] not see that as stealing.” Morris Depo., pg. 232:14-18.

Understanding the concept of “found art” is vital to understanding Morris’s

motives. She is the artist who makes art:

“A found object is or an objet trouvé is an object found in the world. Andits usually, you know, it's a little bit distinguished from ready made. Readymade is a, is, also can be a found object, it could be a found image. And it's




used by an artist in the creation or as the artwork. Q. Okay. So it's an existing object, but it's not a piece of artwork itself,correct? A. No. It becomes an artwork as soon as an artist comes uponit. And an objet trouvé, that's French for found object, so it implies asubject who would find it and who would make it into art.

Morris Depo., pg. 137:9-24 (emphasis added). Apparently, the plaintiffs are not artists,

and the crease patterns only became artwork when she encountered them. There is

another possibility, though: the crease patterns, created by the Origami Artists, were

already art – and she misappropriated their rights to create their derivative works.

Whether the Origami Artists sell their artwork is irrelevant to Ms. Morris; she neither

knew nor cared that Dr. Lang, for example, had his crease patterns installed into

intersections in Santa Monica, nor that he sells his crease patterns as art. Morris Depo.,

98:24-100:2.

Morris searched through books and websites to find works of others that she

wanted. Like a common shoplifter, if she decided she wanted an image, she took it. It

never occurred to her that the crease patterns were subject to copyright. Morris Depo.,

pg. 41:16-42:7 (“ I did not contact anybody. It would not have occurred to me that it was

viewed as copyright material.”) But Ms. Morris did not merely take the property of

others without paying for it. She used the misappropriated crease patterns to create

derivative works to exhibit and sell for her own profit, and then concealed their origin.

Initially, Morris simply redrew the lines of the crease patterns on paper with

colored ink. See Jacobson Depo., Ex. D, D000045; Morris Depo., pg. 113:7-10 (“D 45 is

an actual reproduction of a drawing that I did that I used in gouache, and it's about, as

you can see, it's about two feet by two feet.”) Then she moved on to paintings. She

transferred each crease pattern in its entirety to a large canvas and instructed her

assistants to paint between the lines using household paint. Morris churned out over

eighty different ones, and several in different sizes.

Morris took not only the crease patterns, but also the names of the works, even if

they were misspelled. Plaintiff Miyajima produced a work that he called “Mommoth”




(Miyajima Decl., ¶ 10, Exs. E & F), which is similar to how “Mammoth” would be

pronounced in Japanese. Morris titled her March 2007 work “Mommoth” (Origami) –

“spelling intended!” (See Jacobson Decl., Ex. E (3/15/2007 email.))

The Cover Up. In January 2008, there was a frantic review of Ms. Morris’s

source material for copyright information. (Jacobson Decl., Ex. F; D001125). An email

from the Parallax Gallery email account of Morris’s assistant, Ania Siwanowicz Diakoff,

referenced four of the works that were taken from the book “Origami Design Secrets” by

Robert J. Lang, including Lang’s “Orchid” and “Hummingbird.” They were very

interested in a warning on his website that is not contained in the book. A month later,

those two works were renamed: Orchid to “Orchis,” and “Hummingbird” to “Calypte

Anna,” ; Ms. Morris also changed Dr. Lang’s “Eupatorus” to “Rhino Beetle,” and his3

“Dragonfly” to “Chaser” (Jacobson Decl., Ex. G; D000686)). She was trying to conceal

their origin.

The iconic image of an artist standing, anguished, in front of the canvas with the

brush poised, waiting for inspiration to strike, could not be farther from the truth here.

Morris simply ordered her works as though she were at McDonald’s: “Can I have a 289

[cm] version of ‘Rockhopper’? Thanks, Sarah.” (Jacobson Decl., Ex. H, 2/19/2009;

D000124.) Rockhopper, of course, was based on Miyajima’s “Penguin.” Jacobson Decl.,

Ex. B, Resp. to Miyajima’s Req. for Adm., #11: “You used the work “PENGUIN” by

origami artist Noboru Miyajima as source material for your work ‘Rockhopper.’ [¶]

RESPONSE: Morris admits.” A Rockhopper is a kind of penguin.

April, 2009: Lang Learns of The Infringement. Sipho Mabona is an

origami artist in Lucerne, Switzerland, and in June 2012, was a featured speaker of the

OrigamiUSA Annual Convention in New York. On April 2, 2009, he noticed an origami

crease pattern on the cover of a design magazine called Wallpaper*. (Mabona Decl., ¶ 4,

The Latin name for a Hummingbird, see Morris Depo., pgs. 64:24-65:11), even though3

Lang’s “Latin” titles were “very long-winded and . . . not to my lik[ing], aesthetically.” MorrisDepo., pg. 62:16-18.




Ex. A.) Before that, he had never heard of Sarah Morris. What interested him at that time

is that he was finalizing his own exhibition, including colorized versions of his crease

patterns. (Mabona Decl., ¶ 7. Ex. B.) He then searched the Internet to find more from Ms.

Morris, and recognized crease patterns that had been authored by Dr. Lang. He then

emailed Dr. Lang, who then sought to contact Ms. Morris through her German gallery.

Lang’s email read:

“Hello [¶] I have recently encountered this page on your website [urlomitted.] It presents various works by Sarah Morris. I observe that severalof the works are “colorized” versions of original artworks by me, whichappeared in my book, Origami Design Secrets . . . [¶] I should like to discussthis matter with Ms. Morris. Could you provide me a contact for her? [¶]Sincerely yours, Robert J. Lang”

(Lang Decl., Ex. H.) According to Ms. Morris, she “responded accordingly” (Morris Depo.,

pg. 214:2-5), although she did not respond at all. She claimed that it was her “most busy

period exhibiting-wise of not only my own work, but my husband’s work. We were

traveling in Europe all that spring, and I was working on two shows.” (Morris Depo., pg.

215:3-8.) Therefore, she purportedly let the issue languish on the backburners, instead.

(Morris Depo., pg. 215:19-216:2.)

But for something on the backburners, Ms. Morris and her staff were pretty busy.

Instead of responding to Dr. Lang, Ms. Morris stonewalled: she told the gallery the same

day she received the notice not to “respond to this request for now . . . Do not give him our

contact details.” (Jacobson Decl., Ex. I; 4/3/09 Email). The same day, the manager of

Morris’s studio emailed another employee with a request to check on a list of “titles” –

which were from Morris’s ?Origami” series. (4/3/09 Email, Jacobson Decl., Ex. J

(compare with Jacobson Decl., Exs. K and L (D000604-9; D001422-7). This was to check

“which titles used the crease patterns of Robert Lang in [Morris’s] work.” Morris Depo.,

pg. 219:11-13.)

The next day, Ms. Morris ordered the gallery to “pull the ‘Tarantula’ painting off of4

Dr. Lang’s crease pattern, the subject of the Ninth Claim for Relief.4




the artnet website until I have this matter cleared up. Also please don’t release any

information to this person.” (Jacobson Decl., Ex. M; 4/4/09 Email). Five days later,

former staffer Ania Siwanowicz told Ms. Morris that “Wolf came from a Japanese website5

. . . which has a copyright on the home page . . . not changed at all from the original.”

(Jacobson Decl., Ex. N; 4/9/09 Email.) Twenty days after Dr. Lang’s email, more of

Morris’s [Origami] works were renamed, even though they were already at a gallery.

(Jacobson Decl., Ex. O; 4/22/09 Email.)

In a textbook example of blaming the victim, Ms. Morris claims she found Dr.

Lang’s polite inquiry to be “litigious.” (Morris Depo., pg. 219:15.) She “sensed very clearly

that there wasn’t any respect for [her] work in this e-mail.” Morris Depo., pg. 220:3-4. On

the other hand, she claims enormous respect for the Origami Artists: “I spent three years

working on paintings in relation to a number of people’s instructions. That’s total

respect.” Morris Depo., pg. 220:10-13. However, while production assistants received

acknowledgments from her at a London exhibition of her origami works, none of the

origami artists, whose crease patterns she took, received any acknowledgment. Jacobson

Decl., Ex. P (D001776). Again, Dr. Lang did not get the courtesy of a reply to his “litigious”

April 2 email. nd

Meanwhile, Ms. Morris and her assistants continued investigating. On April 23 ,rd

21 days after Dr. Lang wrote, Ms. Morris was sent an email harmonizing her works, when

they were downloaded, and whether there is a copyright notice on the webpage. Jacobson

Decl., Ex. Q, D000503.

Having heard nothing, Dr. Lang wrote again on May 26 , this time to anotherth

gallery, still being unsuccessful in finding contact information for Ms. Morris. Lang Decl.,

Ex. I. Ms. Morris took nearly a month to reply. She wrote a letter on June 23 , sentrd

through the German gallery, claiming only to have used Dr. Lang’s crease patterns as

“Wolf” is a crease pattern created by Origami Artist Noboru Miyajima, who had not written5

to Morris. It is the subject of the Sixteenth Claim for Relief.MEMO IN SUPP. OF MOT FOR SUMM. JMT. RE DEFENDANT MORRIS’S



“inspiration.” Lang Decl., Ex. I He quickly wrote back, asking to continue the

conversation, but received only silence.

At about the same time, the spring of 2009, Origami Artist Miyajima learned from

friends that his “Wolf” crease pattern was being used in Ms. Morris’s work, which was

being displayed in the Mori Art Museum in Roppongi, Tokyo, Japan. Miyajima Decl., ¶ 14.

ARGUMENT

I. STANDARD FOR SUMMARY JUDGMENT.

Summary judgment is appropriate when there is “no genuine issue as to any

material fact,” and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c); see also Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d

Cir. 2000). Genuine issues of material fact cannot be created by mere conclusory

allegations; summary judgment is appropriate only when, “after drawing all reasonable

inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that

party.” Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Matsushita

Elec. Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89

L.Ed.2d 538 (1986)).

In assessing when summary judgment should be granted, “there must be more

than a ‘scintilla of evidence’ in the non-movant's favor; there must be evidence upon

which a fact-finder could reasonably find for the non-movant.” Matsushita, above, (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). The

non-movant may not rely upon “mere speculation or conjecture as to the true nature of

the facts to overcome a motion for summary judgment.”Knight v. U.S. Fire Ins. Co., 804

F.2d 9, 12 (2d Cir.1986) (citing Anderson, 477 U.S. at 252). Instead, when the moving

party has documented particular facts in the record, “the opposing party must set forth

specific facts showing that there is a genuine issue for trial.” Williams v. Smith, 781 F.2d

319, 323 (2d Cir. 1986) (quotation omitted). Establishing such facts requires going beyond

the allegations of the pleadings, as the moment has arrived “to put up or shut up.”




Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted).

Unsupported allegations in the pleadings thus cannot create a material issue of fact. Id.

A court faced with cross-motions for summary judgment need not “grant judgment

as a matter of law for one side or the other,” but “ ‘must evaluate each party's motion on

its own merits, taking care in each instance to draw all reasonable inferences against the

party whose motion is under consideration.’“ Heublein, above at 1461 (quoting

Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 313–14 (2d Cir. 1981)).

To prevail on a copyright infringement claim, two elements must be proven: (1)

ownership of a valid copyright, and (2) copying of constituent elements of the work that

are original. See Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 548, 105 S.Ct.

2218 (1985); Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345, 111 S. Ct.

1282 (1991): “Originality requires only that the author make the selection or arrangement

independently (i.e., without copying that selection or arrangement from another work),

and that it display some minimal level of creativity.”).“The vast majority of works make

the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble

or obvious' it might be.” Id. (citation omitted).

“[T]he applicability of [the fair use defense to copyright infringement] presents

mixed questions of law and fact,” Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir.

2010) (citing Harper & Row, above at 560), but can still be decided on a summary

judgment motion where the record contains enough facts to evaluate the statutory factors.

II. MORRIS MISAPPROPRIATED THE ORIGAMI ARTISTS’ ORIGINAL WORKS.

A. THE CREASE PATTERNS ARE ORIGINAL TO THE ORIGAMI ARTISTS.

Each of the seventeen crease patterns at issue are covered by copyright.

Each is original to the origami artist who created it. As the barrier to copyrightability is

originality, Feist Publications, 499 U.S. at 345, the crease patterns easily vault over it.

The crease patterns were not copied from anyone else. While substantial similarity does

not require literally identical copying of every detail, Comptone Company Ltd. v. Rayex




Corp., 251 F.2d 487, 488 (2d Cir. 1958), defendant Morris’s works explicitly copied the

origami artists’ crease patterns. Substantial similarity is determined by the ordinary

observer test: the inquiry is “whether an average lay observer would recognize the alleged

copy as having been appropriated from the copyrighted work.” Ideal Toy Corp. v. Fab-Lu

Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966).

B. THE ORIGAMI ARTISTS POSSESS THE RIGHT TO MAKE DERIVATIVE

WORKS FROM THEIR CREASE PATTERNS.

Section 106 of the Copyright Act grants copyright holders a bundle of

exclusive rights, including the right to ?reproduce the copyrighted work in copies,” and

the right ?to prepare derivative works based upon the copyrighted work.” Bill Graham

Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006).

Ms. Morris simply copied: her assistants looked through books on origami and

searched the internet for origami crease patterns. Ms. Morris never contacted Plaintiffs

to seek permission to use their crease patterns. As she put it: ?Why would I contact

anybody? It’s published and it’s there.” (Morris Depo. 41:16-42:7). While Morris claims

that “[i]t would not have occurred to [her] that it was viewed as copyright material,” id.,

they were taken from websites with copyright notices (Miyajima Decl., ¶ 12; Ku Decl., ¶

3), and a book with a registered copyright (Lang Decl., Exs. B, C) – something that

Morris had her assistants investigated in 2008, Jacobson Decl., Ex. F, 1/21/08 email,

D001125, more than a year before Dr. Lang wrote her. . However, Morris was very

careful to protest the use of her origami work in September 2009, when Miami’s

Museum of Contemporary Art used her “June Beetle” origami work, (Jacobson Decl., Ex.

R; D001430-1431). There is no evidence of any copyright notices on Ms. Morris’s works.

Under § 106, Morris is liable for copyright infringement of Plaintiffs’ original

works, unless she can demonstrate the applicability of the defense of fair use.




III. MORRIS’S APPROPRIATION OF PLAINTIFFS’ WORKS WAS NOT FAIR USE.

A. THE FAIR USE DOCTRINE.

The fair use doctrine is designed to fulfill copyright’s purpose of

?promot[ing] the Progress of Science and useful Arts. . . .” (U. S. Const., Art. I, § 8, cl. 8)

by balancing the need to protect copyrighted material with the need ?to allow others to

build upon it.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). As the

Second Circuit has observed, copyright law establishes property rights in creative works,

which must be protected up to a point, while ?the ability of authors, artists, and the rest

of us to express them—or ourselves by reference to the works” must also be protected.

See Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006). ?The fair-use doctrine mediates

between the two sets of interests, determining where each set of interests ceases to

control.” Id. Fair use is an affirmative defense, Campbell v. Acuff-Rose Music, Inc., 510

U.S. 569, 590 (1994), placing ?the burden of proof . . . on its proponent,” Infinity Broad.

Corp. v. Kirkwood, 150 F.3d 104, 107 (2d Cir. 1998).

Section 107 of the Copyright Act lists four factors to be considered in making a fair

use determination:

(1) the purpose and character of the use, including whether such use is of acommercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for, or value of, the copyrightedwork.

17 U.S.C. § 107(1)-(4).

The four statutory factors are not to be ?treated in isolation, one from another. All are to

be explored, and the results weighed together, in light of the purposes of copyright.”

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).

Though fair use is a “mixed question of law and fact,” courts often resolve fair use

issues at the summary judgment stage where there are no genuine issues of material fact.

Castle Rock Entertainment, v. Carol Publishing Group, 150 F.3d 132, 136 (2d Cir. 1998).




B. FIRST FAIR USE FACTOR: MORRIS’S USE OF PLAINTIFFS’ WORKS WAS

FOR COMMERCIAL PURPOSES AND WAS NOT TRANSFORMATIVE.

The first factor in the fair use analysis is the purpose and character of the

defendant’s use of the copyrighted work. In Campbell, the Supreme Court found the

?central purpose” of the first factor to be ?whether the new work merely supersedes the

objects of the original creation, or instead adds something new, with a further purpose or

different character, altering the first with new expression, meaning, or message; it asks,

in other words, whether and to what extent the new work is <transformative.’” Campbell

v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (internal citations and quotation

marks omitted). ?The more transformative the new work, the less will be the significance

of other factors, like commercialism, that may weigh against a finding of fair use.”

Campbell, 510 U.S. at 579 (1994). Transformative use is use that “alter[s] the first with

new expression, meaning, or message.” Id. Ms. Morris’s usage of the Origami Artists’

crease patterns is devoid of new expression, meaning, or message.

A potential area of confusion is that a copyright owner has the exclusive right to

?prepare derivative works” (17 U.S.C. § 106(2)), defined as any ?form in which a work

may be recast, transformed, or adapted.” (17 U.S.C. § 101.) In Castle Rock, the Second

Circuit underscored the difference between an author’s transforming an original work

?into a new mode of presentation” in the creation of derivative works, and

?transformative” works under the fair use analysis. Castle Rock, 150 F.3d at 143. Merely

transforming the original work is insufficient to make the second work ?transformative”

in fair use terms and take it out of the realm of unauthorized derivative work.

Central to each of the Infringing Works is the corresponding crease pattern. The

title of the series, ?Origami,” appears after the title of each of the Infringing Works.

Morris promoted the series as being based on origami crease patterns and titled many of

the works the same as the crease pattern depicted. Morris cannot divorce the Infringing

Works from their core content, the crease patterns she reproduced in their entirety.

As Dr. Lang testified at his deposition: ?People[,] when they look at patterns,




paintings and structures, our eyes are drawn to edges. We see boundaries between two

color regions. We perceive a line there. It’s the biology of the way our eye works and the

way our mental wiring goes together. So the thing that we perceive, the strongest element

is the arrangements of lines and edges. So changes of other aspects, changes of scale,

changes of color, these are things we are less sensitive to.” Lang Depo. at 273: 14-23,

attached to the Lang Decl., Ex. K.

Morris simply took images that appealed to her and used them wholesale in

creating works she sold for tens of thousands of dollars. Once called out for it, Morris

asserted that as an artist, she had a right to take these images and put them to her own

purpose. But in using Plaintiffs’ original expressions for their inherent aesthetic value,

Morris ?lacks restraint.” Where a work “lacks restraint in using [Plaintiff's] original

expression for its inherent ... aesthetic value,” the “transformative character of [the use]

is diminished.” Salinger v. Colting, 641 F.Supp.2d 250, 262 (rev'd on other grounds, 607

F.3d 68 (2d Cir. 2010)).

Although Morris stresses size difference between the original and her Infringing

Works, she has authorized them to be printed in a variety of articles and interviews,

where they are presented at nearly the same size as the original. Jacobson Decl., Ex. S.

Morris’s purpose in creating the Infringing Works merely supersedes that of Plaintiffs in

their artistic purpose.

Commentary. The district court’s decision in Cariou v. Prince, 784 F.Supp.2d

337 (S.D.N.Y 2011), currently under appeal to the Second Circuit, captured the attention

of many in the artistic community. The court held Defendant Richard Prince liable for

copyright infringement, in part because he had denied any intent to comment on the

original work. Id. at 348 (?In creating the Paintings, Prince did not intend to comment on

any aspects of the original works or on the broader culture.”). Particularly in light of this

decision, it would be foolhardy for appropriation artists to fail to offer a description of the

?commentary” intended by their art. But it is equally misguided to expect that recitation




of such commentary will circumvent the intentions of the Copyright Act.

Morris testified that at her deposition that she used the crease patterns to create a

“psychological comment,” Morris Depo., 20:23-21:2. There is nothing about “any aspects

of the original works or on the broader culture.” Ms. Morris failed to transform the work

into anything besides a colorful copy. Commentary must amount to more than ?here’s

what I was thinking of when I made my work.” Courts cannot give artists a free pass to

appropriate the works of others solely because that they had a vision or inspiration for

making the second work. Appropriation artists are held to the same standards as others

under the copyright statutes—as the Second Circuit pointed out in Rogers v.

Koons—because ?[i]f an infringement of copyrightable expression could be justified as

fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . .

there would be no practicable boundary to the fair use defense.” Rogers v. Koons, 960

F.2d 301, 310 (2d Cir.), cert. denied, 506 U.S. 934 (1992). Ms. Morris fails the Rogers

test. At best, Ms. Morris presented the Origami Artists’ crease patterns in living color. As

the Second Circuit noted in Castle Rock, the fact that a work might “recast, transform, or

adapt an original work into a new mode of presentation,” thus making it a derivative

work under 17 U.S.C. § 101, does not make the work “transformative” in the sense of the

first fair use factor. Castle Rock, 150 F.3d at 143 (2d Cir.1998).

The evidence is that any alterations Morris made to the crease patterns she

depicted in her Origami series of paintings were not linked to the supposed

?commentary.” The changes had no meaning (see Jacobson Decl., Ex. T, 5/5/08 email,

D2248).

This case does not place the Court in the position of determining the contours of

what should be deemed sufficient commentary under the first fair use factor, because

there is no commentary. There are no ?bright-line rules,” and fair use calls for

?case-by-case analysis” of the precise facts at hand. See Campbell, 510 U.S. at 577 (1994);

also see e.g., Harper & Row, 471 U.S. at 549 (1985); H.R.Rep. No. 1476, 94th Cong., 2d




Sess. 65-66 (1976) (?no generally applicable definition [of fair use] is possible, and each

case raising the question must be decided on its own facts”). The Court need only

recognize that Ms. Morris’s intentions related to the Infringing Works lack the heft

needed to drag them into the arena of ?transformative” works.

Commerciality. Where a work is not transformative, the importance of

commerciality under the first factor increases. See Campbell, 510 U.S. at 577 (1994): ?the

more transformative the new work, the less will be the significance of other factors, like

commercialism, that may weigh against a finding of fair use.” Ms. Morris made her works

available for sale, for up to $100,000. See Jacobson Decl., Ex. U, D001643-1649. Her

works are quintessentially commercial. The Supreme Court has held that copies made for

commercial or profit-making purposes are presumptively unfair. See Sony Corp. of

America v. Universal City Studios, Inc., 464 U.S. 417, 449, 104 S.Ct. 774, 792 (1984).

Bad Faith. As directed by Harper & Row, 471 U.S. 539, 562-63 (1985),

consideration of ?the propriety of [a] defendant’s conduct” falls under factor one. Also see

Wright v. Warner Books, Inc., 953 F.2d 731, 737 (2d Cir. 1991) (holding propriety of

defendant’s conduct to be integral to analysis under first factor).

There are plenty of evidence of Morris’s bad faith. By her own admission, she

never attempted to seek a license, because she did not consider it to be copyrighted

material. Morris Depo., 42:5-7. She changed the title on numerous works, just after

concerns were raised, including just after Dr. Lang wrote his “litigious” April 2009 email.

Jacobson Decl., Ex. O; 4/22/09 Email. The day after receiving Dr. Lang’s email, Ms.

Morris ordered the gallery to “pull the ‘Tarantula’ painting off of the artnet website until I

have this matter cleared up. Also please don’t release any information to this person.”

(Jacobson Decl., Ex. M; 4/4/09 Email.) Instead of responding to Dr. Lang’s inquiry, Ms.

Morris resumed taking actions that betrayed her guilt. It took her almost three months to

respond to Dr. Lang, and only then to admit inspiration – not copying.

C. Second Fair Use Factor: Nature of the Copied Work.




The second fair use factor is ?the nature of the copyrighted work.” This

factor ?calls for recognition that some works are closer to the core of intended copyright

protection than others, with the consequence that fair use is more difficult to establish

when the former works are copied.” Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006)

(quoting Campbell, 510 U.S. at 586, 114 S.Ct. 1164). ?Original works that are creative in

nature will generally receive greater copyright protection.” Ringgold v. Black Entm<t

Television, Inc., 126 F.3d 70, 80 (2d Cir. 1997).

The word ?pattern” might lead to misapprehension of the nature of a crease

pattern. For example, a sewing pattern is intended to serve as a precise guide to cutting

material in the creation of a garment, while origami crease patterns do not serve such a

purpose. Crease patterns generally, and especially those at issue in this case, do not

purport to convey all of the information needed to create a folded origami model. Indeed,

the crease pattern is an art work unto itself and can also be very beautiful. McArthur

Report, pg. 3. Each of the crease patterns at issue is a creative expression of its author,

and is the result of artistic choices Miyajima Decl., ¶¶ 7, 8; Lang Decl., ¶ 29 viii.

Throughout this litigation, Morris has sought to characterize crease patterns in a

way that, while better suited to her defense than the truth, is contradicted by the

evidence. Morris contends that because origami crease patterns can convey factual

information or serve some limited instructional purpose (to a skilled origami folder), this

somehow obviates their creative expression. Certainly it is not for Morris to define the

purpose of crease patterns; that task falls to the artists who create them.

Plaintiffs have testified that their crease patterns have multiple potential

purposes, one of which is a decorative or artistic one. As Dr. Lang states, he creates

crease patterns to maximize the beauty of the work. “For modern works that involve

many, many steps and creases, the crease pattern would be impossibly busy. We origami

artists choose a subset of lines . . . so that we can focus attention on the important issues

that we want to highlight.” Lang Decl., ¶ 31. These are the same types of creative choices




every artist makes. Miyajima discussed making artistic decisions in creating his crease

patterns, Miyajima Decl., ¶ 8: “I delete any unnecessary lines or the tiny lines, and try to

keep only what looks good and sophisticated to me.” Ku also discusses his artistic choices

related to crease pattern presentation. Ku Decl. ¶¶ 8-9. The purpose of exhibiting crease

patterns in galleries and other venues—whether or not they are displayed in conjunction

with an origami model—is to allow the viewer to appreciate their artistic value. Lang

Decl., ¶ 30.

One of the best examples of the fact that crease patterns are appreciated for

purposes other than instructional is the 1999 installation of four of Lang’s crease patterns

in an intersection in Santa Monica. Lang Decl., ¶ 29vi. No one would argue that these

lines carved into the pavement are providing instruction to anyone interested in folding

an origami model. Their purpose is purely decorative. These crease patterns pay homage

to their origami origins but serve an artistic purpose.

Plaintiffs’ crease patterns at issue are creative and expressive, placing them within

the core protection of the Copyright Act.

D. THIRD FAIR USE FACTOR: AMOUNT AND SUBSTANTIALITY OF THE

PORTION TAKEN.

In Campbell “the Supreme Court clarified that the third factor —the

amount and substantiality of the portion of the copyrighted work used — must be

examined in context. The inquiry must focus upon whether <[t]he extent of . . . copying’ is

consistent with or more than necessary to further <the purpose and character of the use.’”

Castle Rock, 150 F.3d at 143 (2d Cir. 1998), citing Campbell, 510 U.S. at 586-587 (1994).

?[W]hatever the use, generally it may not constitute a fair use if the entire work is

reproduced.” Weissmann v. Freeman, 868 F.2d 1313, 1325 (2d Cir.1989) (citing 3

Nimmer on Copyright § 13.05[A] at 13-80). ?Fragmentary copying is more likely to have a

transformative purpose than wholesale copying.” Davis v. Gap, Inc., 246 F.3d 152, 175

(2d Cir. 2001). And ?where the portion used was essentially the heart of the copyrighted

work,” this factor weighs in favor of the copyright holder. See Harper & Row, 471 U.S. at




565 (1985) (though defendant took a small portion of President Ford’s book, it was the

part about the pardon of Richard Nixon, and for many, ?the heart of the book”). The

analysis under this factor also includes whether the amount used is ?reasonable in

relation to the purpose of the copying.” Campbell, 510 U.S. at 586 (1994) (citation and

quotation marks omitted).

Morris promoted her Origami series as being based on “found” origami crease

patterns, and indeed that appears to be the case for the majority of the works. Still,

Morris also created some wall murals that did not rest on the crutch of a single crease

pattern, if any. See Morris Depo., pg. 293:23-25 (“There were a number of different

forms that we used, but mainly generic sort of origami forms, the star being the main

one, and then that was taken and blown up, and we used an arrow device that is in there

and so forth.” See also Jacobson Decl., Ex. V (pictures of murals).

Morris took the heart and soul of Plaintiffs’ crease patterns—reproducing the

designs on canvas and colorizing them with paint, filling the frame of each Infringing

Work with the crease pattern design. Morris copied and used verbatim almost all of the

crease patterns at issue, occasionally making minor changes without creating

fundamental alterations. See Jacobson Decl., Ex. N; D002084. ?Verbatim copying of this

nature demonstrates [Defendant’s] lack of restraint due to an enthusiastic admiration of

[Plaintiffs’] artistic expression, or perhaps haste and laziness . . . ” See Warner Bros.

Entm’t v. RDR Books, 575 F. Supp. 2d 513, 544 (S.D.N.Y. 2008) (discussing defendant’s

creation of a lexicon infringing J.K. Rowling’s Harry Potter series). Given the lack of

necessity in taking Plaintiffs’ crease patterns to accomplish her goals and the minimal

transformative value, if any, of the works, this factor weighs heavily against Morris.

Using the origami crease patterns was not the only way to obtain what Morris was

seeking. Morris could have done what she in fact did – create lines like for wall murals;

then fill the interstices with paint. Morris Depo., pgs. 290-296, Jacobson Decl., Ex. V.




E. MORRIS’S APPROPRIATION OF PLAINTIFFS’ WORKS ADVERSELY

AFFECTS THE POTENTIAL MARKET FOR DERIVATIVE WORKS.

The fourth fair use factor is ?the effect of the use upon the potential market

for or value of the copyrighted work.” (17 U.S.C. § 107(4)). This factor ?requires courts to

consider not only the extent of market harm caused by the particular actions of the

alleged infringer, but also whether unrestricted and widespread conduct of the sort

engaged in by the defendant would result in a substantially adverse impact on the

potential market’ for the original.” Campbell, 510 U.S. at 590 (1994) (internal quotation

marks and citations omitted).

Harm to the market for derivative works is essential to the analysis under this

factor. Campbell, 510 U.S. at 590 (1994) (citing Harper & Row, 471 U.S. at 568 (1985).

The Copyright Act defines a ?derivative work” as ?a work based upon one or more

preexisting works, such as a[n] . . . art reproduction, abridgment, condensation, or any

other form in which a work may be recast, transformed, or adapted.” (17 U.S.C. § 101).

?Potential derivative uses include only those that creators of original works would in

general develop or license others to develop.” Warner Bros., 575 F.Supp.2d at 549

(quoting Campbell, 510 U.S. at 592) (internal quotation marks omitted).

The case at bar has strong parallels to a Second Circuit case from 20 years ago,

Rogers v. Koons, 960 F.2d 301 (1992). In Rogers, a photographer composed a portrait of

a couple holding eight young puppies. The New York artist Jeff Koons noticed a notecard

with the “Puppies” picture, tore off the copyright attribution, gave the picture to one of

his artisans and told him to faithfully copy it as a three-dimensional sculpture. A friend of

the puppies’ owner noticed a “colorized” version of “Puppies” in the Los Angeles Times.

Id. at 305. The Southern District of New York found that Koons infringed upon the

copyright, because it did not meet any test under the fair use defense. As the Rogers

court stated:

“ But the owner of a copyright with respect to this market-factor need onlydemonstrate that if the unauthorized use becomes “widespread” it wouldprejudice his potential market for his work . . . . The reason for this rule




relates to a central concern of copyright law that unfair copying undercutsdemand for the original work and, as an inevitable consequence, chillscreation of such works. Hence the inquiry considers not only harm to themarket for the original photograph, but also harm to the market forderivative works. It is obviously not implausible that another artist, whowould be willing to purchase the rights from Rogers, would want toproduce a sculpture like Rogers' photo and, with Koons' work extant, suchmarket is reduced. Similarly, defendants could take and sell photos of“String of Puppies,” which would prejudice Rogers' potential market for thesale of the “Puppies” notecards, in addition to any other derivative use hemight plan.

Rogers, 960 F.2d at 312.

Morris’s conduct violates the origami artists’ right to control the production of

derivative works created from their copyrighted crease patterns and harms the market

and potential market for those works. Plaintiffs do need not have entered the market for

derivative works, or even expressed to have expressed the intention to do so, for a court

to find this factor favors the plaintiff. See J.D. Salinger v. Random House, Inc., 811 F.2d

90, 99 (2d Cir. 1987) (author ?has the right to change his mind” about whether to publish

and ?is entitled to protect his opportunity to sell his [works]) (emphasis original); also

see Castle Rock, 150 F.3d at 145-46 (2d Cir. 1998) (finding the fourth factor to favor

plaintiff even where plaintiff ?has evidenced little if any interest in exploiting this market

for derivative works” because copyright law must ?respect that creative and economic

choice”).

The Origami Artists have established that there is a market for crease pattern

art—derivative works based on their crease patterns. Dr. Lang first entered this market in

1999 when his crease patterns were carved into the pavement of four intersections in

Santa Monica, California, as part of a downtown redevelopment project.(Lang Decl., ¶

29vi). Origami Artist Mabona was preparing for his exhibition of colored crease patterns

when he noticed Ms. Morris’s art on the Wallpaper* cover (Mabona Decl., ¶ 4, Ex. A). Dr.

Lang and Mr. Mabona have their crease patterns on display at the time of this writing.

See McArthur Report.

The market for crease pattern art is not just theoretical. For over a decade, Dr.




Lang has been proving there is a market for origami crease patterns in an artistic context.

He has displayed enlarged, colored versions of his crease patterns at New York’s Museum

of Modern Art, San Francisco’s Folk Art Museum, and several other venues, including

commercial galleries and public spaces.

Under Warner Bros., the question is: Would widespread unlicensed use destroy

the Plaintiffs’ market? Here, the answer is decidedly yes. Ms. Morris did not use portions

of Plaintiffs’ crease patterns nor use them in the context of a collage. The crease patterns,

which she took wholesale, ?fill the frame” of the paintings and drawings created from

them. The Infringing Works are so similar to the crease patterns at issue that Ms. Morris

has stolen from the origami artists the opportunity to enter the market with colorized

versions of their own works. Widespread duplications of her act would therefore

obliterate the market for Plaintiffs’ derivative works.

Despite Morris’s claim that calling her works colorized crease patterns is insulting

(Morris Depo., pg. 227:16-21: “Somebody writing to me saying they thought my work was

just colorized versions of their work, it's insulting.”) they remain colorized crease

patterns, just as Koons’ puppy sculpture was a “colorized” version of Rogers’ photograph

in Rogers v. Koons. When the Infringing Works are reproduced photographically and

published on the internet and on paper—as Ms. Morris has consented to on multiple

occasions—they appear quite similar to the crease patterns Sipho Mabona colorized using

computer software for his satirically titled series ?I’m a better folder than Sarah Morris.”

(Mabona Decl., ¶ 9, Ex. C.) Regardless of a difference in technique or time investment,

Mabona’s works and Ms. Morris’s Infringing Works are both derivative works. The

difference is that Mabona, like the other Origami Artists, has the right to create verbatim

copies of his works and colorize them, while Ms. Morris does not.

Ms. Morris has repeatedly asserted that what matters here is the value added

because the Infringing Works bear her name, rather than that of the origami artists who

created the crease patterns. Ms. Morris has indeed demonstrated the ability to enrich




herself and the galleries who represent her through sales of works depicting crease

patterns. However, courts do not award derivative work rights based on who can turn

them around for the biggest profit. Our copyright law vests in the Origami Artists alone

the right to create derivative works from their copyrighted crease patterns, or to license

such works to third parties. Ms. Morris must not be allowed to deprive the Origami

Artists of this right.

CONCLUSION

For the reasons stated above, Plaintiffs respect -fully request that summary

judgment be entered finding Morris liable for copyright infringement on the First

through Sixteenth, and Twentieth Claims for Relief of the Original Complaint.

Respectfully submitted,

Dated: June 29, 2012. BAY OAK LAW

By: K JACOBSON for Plaintiffs

HAMS VALENTINO LLE

B y447/11/ / /It `- CAROLINE N. VALENTINO

Counsel for Plaintiffs

•

MEMO IN SUPP. OF MOT FOR SUMM. JMT. RE DEFENDANT MORRIS'S LIABILITY FOR COPYRIGHT INFRINGEMENT 25


andrew k. jacobson (csbn 148583) laura koch...

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