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Ali v. Final Call, Inc.

United States Court of Appeals, Seventh Circuit

August 10, 2016

Jesus M. Ali, Plaintiff-Appellant
v.
Final Call, Inc., Defendant-Appellee.

          Argued March 30, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 6883 - Gary S. Feinerman, Judge.

          Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

          WOOD, Chief Judge.

         Carpenters have a saying: measure twice, cut once. This litigation might have been averted if that adage had been observed here. In 1984, Jesus Muhammad-Ali painted a portrait of the leader of the Nation of Islam, Louis Farrakhan. In 2013, Ali sued The Final Call, a newspaper that describes itself as the "propagation arm of the Nation of Islam, " for copyright infringement. The Final Call, it turned out, admittedly had sold over a hundred copies of Ali's Farrakhan portrait. Ali nonetheless lost his case after a bench trial. He now appeals, arguing that the district court misstated the elements of a prima facie copyright infringement claim and erroneously shifted to him the burden of proving that the copies were unauthorized. Ali is correct, and The Final Call proved no defense. We therefore reverse.

         I

         The Nation of Islam is an African-American Islamic religious movement founded in 1930 and headquartered in Chicago. After its founder, Wallace D. Fard Muhammad, disappeared in 1934, Elijah Muhammad became its leader. He continued in that role until his death in 1975.

         Jesus Muhammad-Ali is Elijah Muhammad's grandson and a professional portrait painter. In 1984, Ali painted a portrait of Louis Farrakhan, then-and still-the leader of the Nation of Islam. On March 14, 1986, Ali registered and recorded a copyright in the painting, which is entitled "Minister Farrakhan."

         The Final Call, the Nation of Islam's official newspaper, has a weekly circulation of roughly 70, 000 readers. In addition to the paper, The Final Call sells various items related to the Nation of Islam, including video recordings, books, and posters. Over the past 21 years, The Final Call has sold three sets of posters that are lithographs of Ali's original paintings.

         In 2013, Ali sued The Final Call, alleging that it had infringed on his copyrights in his depictions of Louis Farrakhan, Elijah Muhammad, and Khadijah Farrakhan, Louis Farrakhan's wife. Ali later dropped the claims related to his portraits of Elijah Muhammad and Khadijah Farrakhan, but he continued to press his claim that the Final Call had distributed unauthorized copies of the "Minister Farrakhan" portrait. In its answer, The Final Call admitted that it had sold 115 copies of the lithograph between 2010 and 2013. It maintained, however, that Ali had authorized it to produce and sell the copies. The copies it sold were titled "Allah's Star of Guidance, " and featured a yellow border and text below the image reading: "Allah's Star of Guidance, The Honorable Elijah Muhammad and His Servant Minister Louis Farrakhan." The lithograph, as reproduced in Ali's summary judgment papers, is shown below:

         (IMAGE OMITTED)

         Ali moved for summary judgment, asserting that he had proved a prima facie case of copyright infringement and that The Final Call had raised no defenses. While that motion was pending, The Final Call answered Ali's second amended complaint, and raised two defenses: implied license and laches. Ali moved to strike both defenses. Citing Hobbs v. John, 722 F.3d 1089 (7th Cir. 2013), the district court denied Ali's motion for summary judgment, holding that "The Final Call has adduced evidence that would allow a reasonable factfinder to find that Farrakhan's commission of 'Minister Farrakhan Painting' included lithographic copies, and therefore that Ali authorized the creation and sale of the copies."

         Before the district court ruled on the motion to strike The Final Call's affirmative defenses, The Final Call relinquished them during a pretrial status conference. It explained that its "argument is a negative defense, not an affirmative one, which is we maintain we can establish that these were authorized copies." It described its argument as "an attack on the plaintiff's ability to establish its own burden." The district court then conducted a one-day trial, at which authorization was the sole issue. Two witnesses testified: Ali, and The Final Call's corporate representative, Fountaine Muhammad.

         Ali testified that his agreement with Farrakhan included only the portrait, not lithographs, and that Farrakhan never asked him to produce lithographs. He said that he discovered in either 1985 or 1986 that The Final Call was selling lithograph copies of his Minister Farrakhan painting under the title "Allah's Star of Guidance." He did not bring suit then, however, because a lawyer advised him that he could not stop Farrakhan from exploiting his own image.

         Ali also testified that he wrote a letter dated March 11, 2008, to The Final Call's attorney, Arff Muhammad. The letter expressed Ali's "hope to enter into a litho [sic] licensing agreement." In the next sentence, the letter referred to "[t]he commission awarded Minister Farrakhan for his oil & litho entitled 'The Star of Guidance.'" On direct and cross-examination, Ali testified that the letter was meant to notify The Final Call that what it was doing was unlawful, and that he wanted to "nudge them forward to try to establish some type of contractual relationship that was ...


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