Morita v. Omni Publications Intern., Ltd., 760 F. Supp. 45 (S.D.N.Y. 1991)

*46 Bressler & Kruger, New York City by James Lorin Silverberg, for plaintiff Minoru Morita.

Baker & Friedman, New York City by Ben C. Friedman, for defendants Kan Photography and Kan Nakai.

Lankenau & Bickford, New York City by Laura R. Handman, Laurence B. Sutter, Associate Counsel/Publications, Omni Publications International Ltd., New York City, for defendant Omni Publications Intern.

CEDARBAUM, District Judge.

WHEREAS, plaintiff commenced this action asserting copyright, Lanham Act and state law claims against defendants Omni Publications International, Ltd., ("Omni") and Kan Photography Incorporated and Kan Nakai ("Kan"); and

WHEREAS, by Opinion and Order dated July 16, 1990, 741 F. Supp. 1107, this Court granted in part and denied in part defendants' motion for summary judgment and denied plaintiff's motion for summary judgment; and

WHEREAS, the parties hereto wish to resolve all disputes between and among themselves without the necessity of further litigation; it is

ORDERED, ADJUDGED AND DECREED that:

1. Plaintiff is and shall be by this Order the owner of the copyright in the lithograph, photograph and sculpture registered under Certificate of Registration No. VA 213-511.

2. Defendant Kan is the joint author and co-owner of the copyright in the photograph registered under Certificate of Registration No. VA 213-511 and is not an author of the sculpture photographed in, and which is underlying, said work.

3. Defendant Kan assigns, transfers and conveys to plaintiff all right, title and interest including copyrights, in and to the photograph registered under Certificate of Copyright Registration No. VA 213-511, which he may possess and all preceding, succeeding and/or derivative versions thereof, and does hereby waive all claims which he may have, has had, or may hereafter have to rights in or revenues from said works.

4. Defendant Omni shall publish a Credit at the conclusion of the letters section of the magazine titled "Communications" in the USA/Canada edition of Omni Magazine within six (6) months of the execution of this Consent Order in the following form:

The credit for the cover of the May, 1988 issue of Omni should have read as follows: Cover photograph part of a series taken for the poster "Give Peace a Chance" to commemorate the bombing of Hiroshima. The poster is part of the permanent collection of the Hiroshima Modern Museum of Art. Art/Design: Minoru Morita; Glass Sculpture: Milon Townsend; Photography: Kan Nakai; COPYRIGHT 1985 MINORU MORITA.

Accompanying the above Credit shall be a ½ inch by ½ inch (approximate size) reproduction of the cover photograph.

5. Defendant Kan shall pay the plaintiff the sum of $1.00 and such other consideration as had been provided for by the parties outside of the scope of this Order.

6. The Opinion and Order of this Court dated July 16, 1990, Morita v. Omni Publications International, Ltd., 741 F. Supp. 1107 (S.D.N.Y.1990) be, and hereby is, vacated.

7. Except for the requirements of this Consent Judgment, each of the parties hereto releases and discharges each of the other parties, their employees, directors, officers, agents, heirs, licensees, customers, related corporations, successors and assigns from any and all claims and liability of any kind for any prior actions or conduct which were or may have been asserted in this action either by the instant claim, additional claims, crossclaims, or counterclaims.

It is so ordered.