Heyert v Owens

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[*1] Heyert v Owens 2006 NY Slip Op 51562(U) [12 Misc 3d 1193(A)] Decided on June 19, 2006 Supreme Court, New York County Acosta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 19, 2006
Supreme Court, New York County

Elizabeth Heyert and Elizabeth Heyert Studios Inc., Plaintiff,


Isaiah Owens, The Isaiah Owens Funeral Services, Inc., s/h/a Isaiah Owens Funeral Services and Does 1 to 35, Defendants.


George P. Birnbaum, Esq.

Minogue Birnbaum LLP

130 West 57th Street

New York, NY 10019

Attorneys for Plaintiff

Disnmore Campbell, Esq.

Joseph Fleming, Esq., P.C.

45 John Street, Suite 205

New York, NY 10038

Attorneys for Defendant

Rolando T. Acosta, J.

Background [FN1]

Plaintiff, Elizabeth Heyert, is a fine arts photographer whose photographs are in several important collections, including the Metropolitan Museum of Art. In February 2003, she read about defendant Isaiah Owens and his funeral parlor in Harlem, where he prepares the bodies following a traditional style practiced primarily in the South. At that same time, Heyert had published a book on a series of photographs of people sleeping, entitled The Sleepers; The Sleepers photographs were also on exhibit at the Edwin Houk Gallery in Manhattan. According to Heyert, making formal photographic portraits of the bodies prepared by Owens seemed to be a natural extension of The Sleepers project.

Heyert approached Owens about photographing the bodies in his parlor. According to Heyert, she told Owens that she hoped the photographs would be accepted by the Edwynn Houk Gallery and that she hoped to interest a publisher in a book similar to The Sleepers. Owens allegedly replied that the project would generate great publicity for his business, but that he would have to speak to his attorney first. Several days later, Owens called Heyert to say that he had a body for her to photograph. The families of the deceased that Heyert photographed all signed releases. The release promised the releasors an 8 by 10 photograph of their loved ones as consideration for the release.

Heyert went on to photograph 35 bodies. Although it is not clear when the photographs were taken, the releases were signed between June 2003 and February 2004. According to Heyert, the project, entitled The Travelers, cost her a year worth of her time and over $60,000 in out of pocket expenses. The Travelers went on exhibit at the Musee de l'Elysee in Switzerland, [*2]the Hayward Gallery in London and at the Edwynn Houk Gallery in Manhattan, where photographs were sold for $5,500 to $ 7,500. In addition, it appears that The Travelers was published in September 2005.

Notwithstanding Owens' efforts to cause Heyert to execute an agreement for compensation, the parties never entered into an agreement pursuant to which Owens or the families would receive any monetary interest in the photographs. Indeed, Owens' attorney wrote to Heyert a letter dated June 30, 2004 demanding that if she were going to exploit the photographs for commercial gain, she should enter into a fair and equitable agreement with Owens and the families. In that same letter, the attorney stated that it was understood from the outset that Heyert would use the photographs in a book.

Heyert commenced this action primarily to obtain a declaration that defendants have no ownership or monetary interest in the photographs and that the releases are valid and binding. Defendants counterclaimed for injunctive relief, an accounting, and for compensation, asserting that they were part owners of the photographs.

Defendants moved by order to show cause for a preliminary injunction preventing Heyert from selling or using the photographs. That motion was denied by this Court on July 28, 2006.


In the absence of a contract between the parties containing specific terms of payment or entitlement, this Court will not create the contract the parties might have made. Express Ind. & Terminal Corp. v. NY State Dept. Of Transp, 93 NY2d 584, 589 (1999); Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher, 52 NY2d 105, 109 (1981). Here, the parties did not execute a contract detailing any monetary or ownership rights for the defendants. Owens is a sophisticated business man who operates what has been described as a multi-million dollar business. If he had wanted to be compensated in addition to the publicity which he obtained by having his work displayed by a top notched fine arts photographer, he could have insisted on having Heyert execute an agreement before he gave her access to the bodies.

Absent some agreement, a photographer owes all rights to her own photographs. See. Shamsky v. Garan, 167 Misc 2d 149, 158 (Sup. Ct. NY Co. 1995). Indeed, U.S. copyright law provides that copyright ownership in a work vests initially with its author. 17 U.S.C. § 201(a), who is the party who actually creates the work. 17 U.S.C. § 102. The exception being "works made for hire" 17 U.S.C. 201(b), which was not the case here.

Moreover, although there is no contract providing for ownership or compensation, the families signed valid releases, which by their terms, gave Heyert the right to copyright, use, reuse and publish the photographs "for any purpose whatsoever." See New York Civil Rights Law §§ 50 and 51 (which prohibits the use of photographs without permission). As consideration for the releases, they were given a photograph of their loved ones. Given the clear [*3]import of the releases, W.W.W. Associates, Inc. v. Giancontierie, 77 NY2d 157 (1990)( "[a] familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms"), and the traditional deference given to parties to chart their own course absent a conflict with public policy, Dupuis v. 424 East 77th Street Owners Corp., 9 Misc 3d 1121(A) (Sup. Ct. NY. Co. 2005)(citing W.W.W. Associates, Inc. v. Giancontierie, 77 NY2d 157), the releases will be given proper deference by this Court.

Having established her entitlement to summary judgment, the burden shifted to defendants' to raise triable issues of fact, which they have failed to do. Defendants' only argument is that they contributed "expression to the project," and therefore, the photographs are "joint projects" within the meaning of 17 U.S.C. 101, which states that "[j]oint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." Not only is there no indication in the record that the parties intended to create a unified work, but this claim may be raised only in federal court. Maurizio v. Rendal, 222 AD2d 281 (1st Dept. 1995); James v. Delilah Films, Inc., 144 Misc 2d 374 (Sup Ct, NY Co. 1989). Accordingly, plaintiff's motion for summary judgment is GRANTED.

Based on the foregoing, it is adjudged and declared that defendants have no ownership or monetary interest in the photographs which are the subject of the action,

and that the releases obtained in connection with said photographs are valid and binding according to their terms.

This constitutes the Decision and Judgment of the Court.

Dated: June 19, 2006ENTER


Rolando T. Acosta, J.S.C. Footnotes

Footnote 1: This decision was edited for publication.