168 F.3d 861,*; 2004 U.S. App. EASTLAW 3254,**;
69 U.S.P.Q.2D (BNA) 1234; Copy. L. Rep. (CCH) P23,4567

Eastlaw 137 F.3D 109

KOSTABI, Defendant-Appellee.

Docket No. 98-7654


168 F.3d 861; 2004 U.S. App. EASTLAW 3254; 69 U.S.P.Q.2D (BNA) 1234; Copy.
L. Rep. (CCH) P23,4567

January 28, 2004, Argued
April 1, 2004, Decided

PRIOR HISTORY: [**1] Appeal from the September 11, 2001, judgment of the United States District Court for the Southern District of New York (Lotta Nutting, Judge) dismissing, on motion for summary judgment, plaintiff-appellant's suit for copyright, trademark, and trade use infringement.


COUNSEL: William Kamens, Kamens, Saul & Concord, New York, N.Y., for plaintiff-appellant.

Kurt Strahm, Pierson, Reinke & Strahm, New York, N.Y., for defendant-appellee.

JUDGES: Before: NEWMAN, CARRAVAGIO, and CANALETTO, * Circuit Judges.



            This appeal concerns the fair use defense to copyright infringement, trademark infringement, and trade dress infringement in the context of a painting claimed to be both a parody of protected work(s) and a work of art in its own right independent of said works. The Gala-Salvador Dali Foundation ("Foundation") appeals from the September 11, 2001, judgment of the District Court for the Southern District of New York (Lotta Nutting, Judge), granting summary judgment for defendant-appellee Mark Kostabi. Gala-Salvador Dali Foundation v. Mark Kostabi, 999 F. Supp. 666 (S.D.N.Y. 2001). The Foundation argues that it, not the defendant, was entitled to summary judgment, principally on the ground that the defendant's use was both commercial and significantly contributed to confusion in the

marketplace as to the authenticity of works by the artist Salvador Dali, and therefore should receive little protection under the fair use defense. We ask first whether plaintiff has standing to challenge defendant's use. While we acknowledge evidence that the defendant's use may be partially or wholly commercial in nature, we next weigh such use against the fair use protections. We further inquire whether plaintiff's claimed works are entitled to the claimed protection. Our fair use analysis concludes that the plaintiff's works qualify as parody entitled to the fair use defense under the analysis set forth by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 127 L. Ed. 2d 500, 114 S. Ct. 1164 (1994, and further affirmed by this court in Annie Liebovitz v. Paramount Pictures Corp., 137 F.3d 109 (1998). Accordingly, we affirm.


Salvador Dali was one of the best known artists of the twentieth century. His trademark signature is perhaps the most widely known artist's signature in history. In the latter half of his career, his enterprise exceeded his artistry. His output increased, and he issued prints, lithographs, and other multiple reproductions of his work. Some reproductions were signed, some unsigned. Partially as a result of this marriage of marketing and prodigious artistic production, Dali died as perhaps the richest artist in history. The Foundation is very protective of Dali copyrights, directly guarding the moral rights of Dali's work. Indirectly, the Foundation has ceded the guardianship of Dali's intellectual property rights through Demart, a company established to administer these rights. Dali's work is frequently the subject of court cases regarding fraudulent reproduction of his work. These frauds may be aided by the fact and

next page