Trombetta v. Novocin

Background

Annamarie Trombetta, a self-represented artist, sued Norb Novocin, Marie Novocin, Estate Auctions, Inc. (EAI), and WorthPoint Corporation. EAI sold a painting called “Man with a Red Umbrella” on eBay in December 2012. Based on a signature and writing on the frame, Norb Novocin attributed the painting to Trombetta, although the parties did not dispute that she did not create it. The eBay listing also used biographical text from Trombetta’s professional website. WorthPoint later displayed information about the eBay sale in an online listing. Trombetta discovered the WorthPoint listing in August 2015, and WorthPoint removed the listing on February 4, 2016. Trombetta later saw a Google search result that she believed showed the listing remained available.

Trombetta’s operative complaint asserted claims under the Visual Artists Rights Act (VARA), the Digital Millennium Copyright Act (DMCA), and the Copyright Act, along with claims under New York’s Artists’ Authorship Rights Act, a federal identity-theft statute, and for intentional infliction of emotional distress. The parties filed cross-motions for summary judgment, meaning they asked the court to decide claims without a trial because they contended that no material facts required a jury’s decision. The parties also filed motions concerning proposed expert and other witness testimony.

Evidentiary rulings

The court denied Trombetta’s motion in limine in its entirety. It allowed WorthPoint to rely on Jason Packer as a fact witness and accepted Jessie Stricchiola’s proposed expert testimony concerning website accessibility, web analytics, and Google’s handling of information from removed webpages. The court found that credibility disputes about Packer did not justify excluding his testimony at the summary-judgment stage.

The court granted the defendants’ motions to exclude Patrick O’Leary’s proposed expert testimony. His opinions about discovery misconduct were irrelevant, and his opinions about who created the painting and Trombetta’s financial damages were outside his demonstrated expertise. The opinion also states that an earlier order had already precluded two other proposed experts because of missed disclosure requirements.

Claims against WorthPoint

The court granted WorthPoint’s motion for summary judgment in its entirety and denied Trombetta’s cross-motion against WorthPoint in its entirety. Copyright Act claims, including claims under the DMCA and VARA, generally must be brought within three years after discovery of the infringement. Trombetta discovered WorthPoint’s listing in 2015 but did not seek to add WorthPoint as a defendant until February 21, 2020. The court found no basis for treating the amendment as timely based on the original complaint.

The court therefore considered whether WorthPoint committed a renewed act of infringement after February 21, 2017. WorthPoint presented witness testimony, website data, and Stricchiola’s expert analysis showing that the listing was removed on February 4, 2016, and was not accessible afterward. The court found that a Google search result could reflect cached information without proving that the underlying WorthPoint page remained live. Trombetta did not provide evidence creating a genuine factual dispute about a later reposting or continued accessibility.

Claims against EAI and the Novocins

The court granted EAI’s motion for summary judgment on Trombetta’s NYAARA, identity-theft, and intentional-infliction-of-emotional-distress claims. NYAARA protects against damage to an artist’s actual artwork, and the record did not show that Trombetta’s artwork had been altered, defaced, mutilated, or modified. The federal identity-theft statute Trombetta invoked is criminal and does not create a private civil claim. The court also found that the conduct Trombetta identified—including settlement discussions and actions taken during litigation—did not establish the extreme or outrageous conduct required for an emotional-distress claim.

On the VARA claim against EAI, the court granted Trombetta’s motion for summary judgment in part and granted EAI’s motion in part. The court held that the painting qualified as a work of visual art, that Norb Novocin attributed it to Trombetta even though she did not create it, and that this established Trombetta’s VARA violation claim. The court found no triable issue on willfulness: at most, the evidence showed negligent failure to investigate the attribution. It awarded Trombetta $1,000 in statutory damages. Estate Auctions, Inc. and Norb Novocin were held liable, while Marie Novocin was granted summary judgment because the record did not show that she participated in sourcing or selling the painting.

On the direct copyright-infringement claim, the court held that Trombetta owned a valid copyright in the biography from its publication and that EAI copied the biography into the eBay listing. The court rejected EAI’s fair-use defense because the use was commercial, the biography had expressive content, a significant portion was copied, and the use affected Trombetta’s interest in controlling accurate dissemination of the biography. However, Trombetta did not provide admissible evidence of actual damages, and her copyright registration was not effective until after the infringement began, preventing statutory damages under the Copyright Act. The court also found injunctive relief inappropriate. It entered judgment for Trombetta against Estate Auctions, Inc. and Norb Novocin for $1 in nominal damages, and judgment for Marie Novocin on this claim.

The court granted EAI’s motion for summary judgment on Trombetta’s DMCA claims. The evidence did not show that EAI was involved in the WorthPoint statement that allegedly supplied false copyright-management information. Trombetta also did not provide admissible evidence that EAI intentionally removed or altered copyright-management information. The court entered judgment for EAI and Norb Novocin on the remaining claims and for Marie Novocin and WorthPoint on all claims.

Disposition

Judge Laura Taylor Swain ordered judgment for Trombetta against Estate Auctions, Inc. and Norb Novocin, jointly and severally, for $1,000 on the VARA claim and $1 against them on the direct copyright-infringement claim. Judgment was entered for EAI and Norb Novocin on all remaining claims, for Marie Novocin on all claims, and for WorthPoint on all claims. The court directed the Clerk of Court to close the case.