CHICAGO (CN) — Reversing and remanding, the Seventh Circuit ruled Wednesday that the Nation of Islam’s newspaper, The Final Call, violated a painter’s copyright by selling reproductions of his portrait of Louis Farrakhan without permission.
“Carpenters have a saying: measure twice, cut once. This litigation might have been averted if that adage had been observed here,” Chief Judge Diane Wood wrote for the three-judge panel.
In 1984, appellant Jesus Muhammad-Ali painted a portrait of Louis Farrakhan, the current leader of the Nation of Islam. Muhammad-Ali is the grandson of Elijah Muhammad, who led the Nation of Islam from 1934 until his death in 1975.
Muhammad-Ali sued The Final Call in 2013 for selling more than 100 copies of the portrait without his consent.
The Final Call acknowledged that it sold the portrait, but said Ali authorized it to produce and sell the copies.
Ali said in a deposition that he was commissioned to do an oil painting, and was aware that lithographs were made of his work, but he later asserted that that admission was an error.
A federal judge found this admission weighed heavily in The Final Call’s favor, as well as the fact that Ali did not claim his rights when he discovered the copyright infringement in 1985.
But the Seventh Circuit reversed and remanded Wednesday, finding that the lower court erred by shifting to Ali the burden of proving the copies were unauthorized.
“The Final Call presented no affirmative defenses in the district court,” Wood wrote, because it waived its implied license and laches defenses at a pretrial conference.
“It put a nail in the coffin by failing to suggest any reason why we should excuse its waiver or find an implied license,” Wood added.
The Final Call did not satisfy the elements of implied license even if it had not waived the defense, the court found. Farrakhan commissioned the portrait, not The Final Call, and there is no evidence that Ali delivered the painting to Farrakhan with the intention that The Final Call would copy and distribute it.
The lower court improperly assumed a “practical identity of interests” between Farrakhan and The Final Call.
“Even if Ali did grant such permission to Farrakhan – and there is no evidence that he did – nothing indicates that he granted it to The Final Call, or that Farrakhan attempted to transfer a license to The Final Call,” Wood wrote.
Also on the panel were Judges Richard Posner and Ilana Rovner.
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