Noland v. Janssen

Background

Cady Noland alleged that Wilhelm Schürmann and KOW arranged for the wooden components of her sculpture, Log Cabin Façade, to be replaced in Germany after the original components deteriorated. The replacement parts were ordered from Master Log Homes in Montana and assembled in Germany. Schürmann later hired Janssen Gallery to resell the refurbished work, and Janssen Gallery enlisted Marisa Newman Projects, LLC, and Brett Shaheen to market it to a prospective buyer in the United States. Noland alleged copyright infringement and violations of her rights under the Visual Artists Rights Act, a federal statute protecting certain moral rights of artists.

Defendants moved to dismiss the Third Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Extraterritoriality

The court reaffirmed that United States copyright law generally does not apply to conduct outside the United States. A domestic “predicate act”—a domestic act that independently violates copyright law—can sometimes support liability for related foreign infringement. The court held that Noland did not allege such an act.

Noland argued that distributing photographs and plans in the United States was a qualifying predicate act. The court rejected that argument because the alleged distribution occurred after the refurbishment in Germany; the foreign conduct did not stem from an earlier domestic infringement. The court also relied on its prior ruling that purchasing wood from a Montana manufacturer was not independently an act of copyright infringement. The court held that the same conclusion applied to Noland’s claims under the Visual Artists Rights Act to the extent those claims depended on conduct abroad.

Domestic copyright claims

The court separately considered Noland’s allegations concerning domestic distribution of photographs and plans. Assuming, without deciding, that Log Cabin Façade was copyright-protected, the court held that distributing the materials in connection with a legitimate attempted sale was fair use.

The court found that the use was transformative because the photographs and plans provided information to potential purchasers rather than serving the original artistic purpose of the sculpture. Although the use was commercial, the court considered it non-exploitative in the circumstances. The sculpture’s creative nature and the fact that the images depicted the entire work weighed somewhat against fair use, but those factors had limited significance in the context of a legitimate sale. The court also found no adverse effect on the market for the original work. It therefore dismissed the copyright infringement claims.

The court rejected Noland’s argument that the first-sale doctrine did not apply because the refurbishment allegedly violated German law. The court interpreted the phrase “lawfully made under this title” in the Copyright Act as referring to Title 17 of the United States Code, not to compliance with foreign copyright law. The court did not decide whether a work would be lawfully made under Title 17 if the Copyright Act applied extraterritorially and the work would violate that Act.

Visual Artists Rights Act claims

Noland argued that staining the sculpture after the statute’s effective date created a protected derivative work. The court assumed, without deciding, that this theory could satisfy several legal requirements, but held that Noland still could not prevail because her own allegations showed that Schürmann requested and carried out the staining. Under the court’s analysis, Schürmann—not Noland—would be the author of any stained derivative work and would hold any rights connected to that alteration.

The court also declined to consider additional factual allegations Noland raised for the first time in her opposition brief. It held that her preexisting copyright in the unstained sculpture did not bring that sculpture within the Visual Artists Rights Act merely because a later derivative work was created. The remaining Visual Artists Rights Act claims were dismissed.

Disposition

The court granted defendants’ motion to dismiss. It directed the Clerk of Court to close the motion at Docket Number 93 and close the case.