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

common knowledge that, after his death, his heirs continued to reproduce his work on media signed by him prior to his death. Estimates of the number of blank canvases or other media signed by Dali range from 100,000 to 500,000.n1

          n1 See generally Lee Catterall, The Great Dalí Art Fraud and Other Deceptions (1992); Henry Lydiate, The Dali Wrangle (2001).

      Mark Kostabi is an artist currently working in New York and Rome. The merits of his work taken alone may or may not be relevant, but somewhat controversial artistic process is quite relevant to this dispute. He employs artists, places them in front of a canvas, and tells them what to paint. Generally his employees are guided as much by his past works as they are by his instructions. When the artist completes the painting, Kostabi signs it and markets it as his own. The merits of the paintings themselves are open to debate—they are in many respects unremarkable modern works. It is the process itself, whether as a comment on art as a commercial product, or as an unabashedly commercial business, that attaches to the work and creates interest in many buyers or critics who might otherwise pay no notice.n2

          n2 Kostabi’s production process is quite well-documented. He has written several books which discuss this process to varying degrees, including Mark Kostabi, Conversations with Kostabi (1996) and Mark Kostabi and Basil Chattington, Kostabi: The Early Years (1990). In addition, Kostabi authors, or at least signs, an occasional column called Ask Mark Kostabi, published in Artnet, an online arts magazine. See also Baird Jones, Mark Kostabi and the East Village Scene 1983-1987 (2003); Joni Maya Cherbo, Playing With Fire: Institutionalizing The Artist At Kostabi World, in Outsider Art: Contesting Boundaries in Contemporary Culture (Vera L. Zolberg and Joni Maya Cherbo eds. 1997).

      Beginning in late 1998 or early 1999, Kostabi began producing a series of 6 paintings (using the above described process) each of which consisted of a blank canvas with an accurate reproduction of Salvador Dali’s signature painted in the bottom right hand corner. Beneath that signature, Kostabi painted his own signature. The paintings [hereinafter the Kostabi Dalis) received sufficient press attention and debate to help produce prices of $20,000-25,000 per canvas. Some of

the paintings were used to produce a series of numbered lithographs, each of them signed by Kostabi, below his own and Dali’s reproduced signatures. At present, there have been two series of 100 lithographs, each of which sell for prices of $1000-1500. The three paintings sold for a total of $65,000. At last count, 117 lithographs have been sold for a total of $134,550.n3

          n3 See Galleria Stringer, The Kostabi Dalis—Wry Appropriationism or Crass Commercialism . . .Or Both?, N.Y. Times, April 1, 1999, at D1.

      Kostabi’s public comments regarding these works might be characterized as alternatively frank or elusive. In these remarks, he appears to make the claim that the works collectively constitute commentary on the commercialism and commodification of art, as well as a targeted commentary on Dali ouvre, which may or may not include his signed blank media. It is further not fully clear whether the commentary is intended purely as criticism of any of Dali’s work.n4

          n4 This Court has earlier encountered similar commentary, accepting Jeff Koons self-definition as an artist belonging to “the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it.” Rogers v. Koons, 960 F.2d 301, 309 (2d Cir. 1992).

      The histories of art in general and modern art in particular provide ample precedent for artist mimicry and parody. While much of this imitation is disparaging, as much might be characterized to a point as complimentary to or inspired by the prior work. When Norman Rockwell painted his realist portrayal of a confounded museumgoer grappling with a Jackson Pollackesque painting, it was not made clear whether Rockwell was admiring or disparaging Pollack, but his mimicry of Pollack was credible.n5

          n5 The painting in Rockwell’s illustration was real, painted by Rockwell himself and entered into a juried show under an assumed name. It won first prize. No record indicates, but in the context of the current case the questions arises whether Rockwell intended

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