United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Jesus Muhammad Ali brought this suit against The Final Call, Inc., which publishes a newspaper and sells artistic products on behalf of the Nation of Islam, alleging that it sold unauthorized copies of Ali's work, "Minister Farrakhan Painting, " in violation of the Copyright Act, 17 U.S.C. § 101 et seq. Doc. 24. The case recently was reassigned to the undersigned judge's calendar, Doc. 47, and trial has been set for early August 2015. Docs. 55, 74. Now before the court are Ali's motion for summary judgment as to liability, Doc. 27, and the Final Call's motion to strike one line of the errata sheet that Ali submitted along with his signed deposition, Doc. 34. The Final Call's motion is granted, and Ali's motion is denied.
The facts are set forth as favorably to The Final Call as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir. 2012). That said, nearly all of the pertinent facts are undisputed.
Ali, whose birth name was Herbert Muhammad Jr., is the grandson of Elijah Muhammad, a former leader of the Nation of Islam. Doc. 40 at ¶¶ 2-3; Doc. 30 at ¶ 3. An artist, Ali has received monetary commissions to create portraits of Nation of Islam members. Doc. 40 at ¶ 4. The Final Call, "a propagation arm of the Nation of Islam, " publishes a newspaper and also sells religious books, CDs, DVDs, and prints at its bookstore, at Nation of Islam conventions, and online. Id. at ¶¶ 6-7, 9. Of the nine posters or prints that The Final Call has sold over the last twenty-one years, two were versions of Ali's paintings: "Classic Portrait of the Honorable Elijah Muhammad, " and "Minister Farrakhan Painting." Id. at ¶¶ 10-11.
Ali painted "Classic Portrait of the Honorable Elijah Muhammad" in 1969. Id. at ¶ 15; Doc. 30 at ¶ 15. In 1992, Ali authorized the creation of 50, 000 prints of the Muhammad portrait and sold them for $25, 000.00 to Louis Farrakhan, then and now the Nation of Islam's leader. Doc. 40 at ¶¶ 16, 21; Doc. 30 at ¶¶ 16, 21. The portrait and the prints include a handwritten copyright notice identifying Herbert Muhammad Jr. as the author. Doc. 40 at ¶ 17. In 1993, The Final Call made enlargements of the Muhammad portrait without Ali's authorization. Id. at ¶ 19. Ali registered the work with the U.S. Copyright Office in November 1997. Doc. 40 at ¶ 18; Doc. 30 at ¶ 18. The next year, The Final Call paid Ali $1, 250.00 in exchange for a waiver and release concerning the enlargements. Doc. 40 at ¶ 20; Doc. 30 at ¶ 20.
In 1983, Ali contacted Farrakhan about painting his portrait. Doc. 40 at ¶ 21, Doc. 30 at ¶ 21. Ali completed the work-the aforementioned "Minister Farrakhan Painting"-in December 1983. Doc. 40 at ¶ 22; Doc. 30 at ¶ 22. The portrait features the head and shoulders of Farrakhan in the foreground and the head and shoulders of Elijah Muhammad superimposed on a nine-point star in the upper right corner. Doc. 40 at ¶ 23. Farrakhan paid Ali $5, 000.00 for the work and hung it in his home. Id. at ¶ 24; Doc. 30 at ¶ 24. Ali registered his copyright in "Minister Farrakhan Painting" in 1986, Doc. 40 at ¶ 25, and he maintains that he has never licensed or transferred his copyright in the work. Doc. 30 at ¶ 26; Doc. 40 at ¶ 26.
At some point, The Final Call began selling prints titled "Allah's Star of Guidance, " which are nearly identical to "Minister Farrakhan Painting." Doc. 40 at ¶¶ 28-29. Unlike "Minister Farrakhan Painting, " the prints include a color border and the words, "Allah's Star of Guidance, The Honorable Elijah Muhammad and His Servant Minister Louis Farrakhan." Id. at ¶ 30. A "©" symbol and the name Herbert Muhammad Jr. are visible on the prints. Id. at ¶ 31. In the three years before Ali filed suit, The Final Call sold 115 of the prints. Id. at ¶ 32.
Ali submits he never authorized The Final Call to create or distribute the "Star of Guidance" prints and that The Final Call never paid him to do so. Doc. 30 at ¶¶ 27, 34. The Final Call asserts that Ali's commission with Farrakhan for "Minister Farrakhan Painting" included lithographic copies, Doc. 40 at ¶ 27; Doc. 41 at ¶¶ 1-2; in support, The Final Call cites Ali's deposition testimony and a March 2008 letter that Ali wrote to The Final Call. The letter refers to "[t]he Commission awarded by the Minister for his Oil & litho, " and expresses his "hope to enter into a Litho[graph] licensing agreement" to the "Star of Guidance." Doc. 37-2 (emphasis added). Ali disputes that the letter indicates that he was aware at the time he wrote the letter that the "Star of Guidance" lithographs had been made. Doc. 46 at ¶ 1.
The relevant portion of Ali's deposition transcript reads as follows:
Q. And I asked you a few moments ago whether you were commissioned to do an oil painting and lithograph and you said no, correct?
A. That's correct.
Q. But this letter that you wrote in March of 2008 says that you were commissioned to do an oil ...