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The Estate of Maier v. Goldstein

United States District Court, N.D. Illinois, Eastern Division

November 20, 2017

The Estate of Vivian Maier, Plaintiff,
Jeffrey Goldstein and Vivian Maier Prints, Inc., Defendants.


          Honorable Thomas M. Durkin United States District Judge.

         The Estate of Vivian Maier brings this copyright and trademark infringement case against defendants Jeffrey Goldstein and Vivian Maier Prints, Inc., for allegedly engaging in copying, public exhibition, and commercial exploitation of the unpublished photographs of Vivian Maier, a Chicago photographer who achieved worldwide fame posthumously. Before the Court is defendants' motion to dismiss plaintiff's amended complaint (R. 42). Defendants first rehash an argument already rejected when this Court granted plaintiff's motion for a temporary restraining order (“TRO”) that the Court lacks subject matter jurisdiction under the probate exception to federal jurisdiction. On this basis, defendants argue that the case should be dismissed under Fed.R.Civ.P. 12(b)(1). Defendants also argue that plaintiff fails to state a claim under Fed.R.Civ.P. 12(b)(6). For the following reasons, defendants' motion is denied.


         A Rule 12(b)(6) motion challenges the sufficiency of the complaint. E.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and giving defendant “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Id.

         Rule 12(b)(1) authorizes the Court to dismiss any claim for which the Court lacks subject matter jurisdiction. Article III, Section 2 of the U.S. Constitution defines the outer bounds of a federal court's subject matter jurisdiction; generally, a court's jurisdiction in a civil case arises from a federal question, a deprivation of one's civil rights, or diversity among the parties. See 28 U.S.C. §§ 1331, 1332, 1343; see also Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2010). When a defendant challenges jurisdiction, the plaintiff bears the burden of establishing a court's jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). As with a Rule 12(b)(6) motion, in deciding a Rule 12(b)(1) motion the Court must “accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” St. John's United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007) (quotation marks omitted).


         Vivian Maier spent most of her life working in the Chicago area as a nanny. R. 38 ¶ 14. Her photography was never professionally shown during her lifetime; indeed, most of her photographs were not developed while she was alive. Id. ¶ 15. Maier died intestate on April 21, 2009. Id. ¶ 16. With no known heirs at the time, a public administrator was appointed to administer Maier's estate. Id. ¶¶ 19-21.

         Maier's estate-the plaintiff in this case-owns the copyright in all works of authorship created by Maier, including but not limited to her photographs (“Maier works”). Id. ¶ 18. Plaintiff also owns the VIVIAN MAIER trademark. Id. ¶ 22. A use-based application for that trademark is currently pending with the U.S. Patent and Trademark Office. Id.

         Beginning in approximately 2010, defendant Goldstein amassed a series of Maier's vintage prints. Id. ¶ 23. He also acquired approximately 15% of Maier's known black and white negatives and slides (totaling approximately 17, 000 images), negatives for approximately 1, 800 color images, and other Maier-related items. Id. ¶¶ 24-25.

         On October 25, 2010, Goldstein founded defendant Vivian Maier Prints, Inc. Id. ¶ 26. In late 2010 and 2011, Goldstein processed undeveloped film he had acquired and made digital copies and prints of the Maier works in his possession. Id. ¶¶ 29-30. He began to sell the prints for well over $1, 000 each. Id. ¶ 31. In approximately April 2011, Goldstein began to exhibit the prints at public exhibitions. Id. ¶ 32.

         Goldstein registered the domain name “” and launched a website at that address in approximately February 2011. Id. ¶ 33. The website featured a facsimile signature of Vivian Maier and the header “Vivian Maier Prints, Inc.” Id. Goldstein posted dozens of images of Maier works on the website without authorization from plaintiff. Id. ¶ 34. Although Goldstein has since disabled the homepage, pages throughout the site displaying Maier works remain active. Id.

         In October 2012, Goldstein caused a book to be published consisting largely of reproductions of unpublished Maier photographs; a special edition of the book sold for $850 a copy. Id. ¶ 35. Goldstein also began selling Maier prints to galleries outside Chicago in 2012. Id. ¶ 36.

         In 2013 and 2014, Goldstein continued to organize public exhibitions and sales of Maier's work for significant sums. Id. ¶¶ 38, 40. He “licensed” certain Maier images for which he held the negatives to the British Broadcasting Corporation (“BBC”), which used them in connection with a 2013 documentary on Maier. Id. ¶ 39. He also caused another book of reproductions of Maier photographs to be published in October 2014. Id. ¶ 41.

         Goldstein never sought or received permission from plaintiff to reproduce and sell prints of Maier's work, to conduct exhibitions of Maier's work, to publish books using her images, to use her name or identity in the trade name of Goldstein's company, or to make any statements suggesting that Goldstein's enterprise was endorsed by or affiliated with plaintiff. Id. ¶ 42. The complaint alleges on information and belief that when asked about copyright issues, Goldstein took the position “that his efforts to establish a market for Maier's works entitled him to copy, publish, and profit from Maier's works.” Id. ¶ 43.

         In August 2014, plaintiff's attorneys sent Goldstein a letter informing him that they had been retained to investigate, among other things, Goldstein's potential infringement of plaintiff's copyright. Id. ¶ 45. The letter informed Goldstein of his obligation to take reasonable steps to preserve and retain all documents related to Maier and his use of her works. Id.

         In early September 2014, the Cook County Circuit Court granted a petition for a citation to discover and recover assets from Goldstein. Id. ¶¶ 44, 46. Plaintiff's and defendants' counsel subsequently had negotiations about a possible resolution of the issues between the parties. Id. ¶¶ 47-49. While these negotiations were occurring, Goldstein traveled to Canada to seek a purchaser of his collection of black and white Maier negatives. Id. ¶ 50. In approximately December 2014, Goldstein sold his entire collection of black and white Maier negatives to a gallery in Canada. Id. ¶ 51. The gallery explained in a January 2015 interview with Canadian Art magazine that “the border does complicate things a bit . . . for Cook County to try to extradite material that's in another country, there's definitely a couple more layers of protection there.” Id. ¶ 52. A January 2015 article reported that Goldstein told the Chicago Tribune: “I'm not going to partner up with Cook County. I'd cut my wrists first.” Id. ¶ 53. Plaintiff believes Goldstein continues to possess approximately 1, 400 prints of Maier works with a market value of between two and four million dollars. Id. ¶ 66.

         In February 2015, Goldstein filed a counterclaim against plaintiff in the Cook County lawsuit for unjust enrichment, arguing that his infringing conduct created the value of Maier's copyright, and he should be entitled to an interest in Maier's works as a result. Id. ¶ 55. The court dismissed the counterclaim in January 2016. Id. In July 2017, ...

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