Page:SHL Imaging v. Artisan House.pdf/4

 of using “copy lighting” (two lights set up at 45 degree angles in front of the object being photographed), Lindner selected a single light source with a reflector in order to “fill out the shadows (but not eliminate them) to give a chiaroscuro effect that would wrap around the [frame] and give it depth.” (Lindner Aff. ¶17.) While Munn asserts that he “instructed Lindner precisely how [he] wanted the photographs taken, including the positioning and angle and appropriate lighting,” he provides no specifies. (Munn Aff. ¶12.) Lindner and Ferron alone set up the lighting, hung the frames and took the photographs, while Munn remained in his office. (Lindner Aff. ¶13; Ferron Dep. at 16.)

Photographing the frames was complicated by the reflection in the mirrors of several frames. (Lindner Aff. ¶17.) Lindner overcame this obstacle by creating a unique lighting design so that the mirrors would not reflect any part of the factory or the photographer. (Lindner Aff. ¶17.) The lighting design also enhanced the luster of each frame’s gilt. (Lindner Aff. ¶17.) As the shoot proceeded, Lindner also took Polaroid instant photographs “to check [the] lighting, angles and composition.” (Lindner Aff. ¶12.) Munn claims that he ordered the Polaroids to ensure Lindner was following his instructions. (Munn Reply Aff. ¶12.)

After the shoot concluded, plaintiff submitted a preliminary invoice to Munn, who rejected it. Thereafter, plaintiff submitted a second bill in the amount of $3,700, which was paid. (Lindner Aff. Ex. 2: 11/19/96 Invoice.) That bill bears Munn’s initials and the remark “OK” on its first page. (Lindner Aff. ¶20 & Ex. 2: 11/19/96 Invoice.) The invoice specifies: “Re: Photography of frames. Usage: For C-Prints to be used by sales people.” “C-Prints” is shorthand for negative color prints. (Lindner Aff. ¶7.)

Five months later, Lindner discovered that Artisan had used sixty-four of the photographs in a catalogue without securing his permission. After registering the photographs with the Copyright Office, plaintiff filed this infringement action. (Lindner Aff. ¶9.) During discovery, defendants revealed that they had made an additional 3,000 copies of the photographs for undisclosed purposes, reproduced them in 5,000 brochures, scanned eighty-three of them into a computer, and used the photographs as magazine “comps” or publicity releases, all without plaintiff’s permission. (Lindner Aff. ¶10.)

I. Summary Judgment Standards

Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). In determining whether the movant has met this burden, the Court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987).

If the moving party meets its initial burden, the non-moving party must then come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The non-moving party must “do more than simply show there some metaphysical doubt as to the material facts.” ''Matsushita Elec. Indus. Co. v. Zenith Radio Corp.'', 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Where it is apparent that no rational finder of fact “could find in favor of the non-moving party because the evidence to support its case is so slight,” summary judgment should be granted. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994).

It is well established that courts may grant summary judgment sua sponte when