A New York lawyer who used a cartoon image of a heavily bandaged patient to advertise his personal injury practice may be entitled to copyright protection for the drawing, a federal judge has ruled.
Richard P. Neimark of Rockland County, N.Y.'s Neimark & Neimark began using the cartoon in 1988, publishing it in Yellow Pages advertisements. The drawing depicts a bandaged patient lying in a hospital bed with a prescription to "Call Neimark" attached to his chart. Neimark registered the drawing with the U.S. Copyright Office in 1990.
New York Law Journal
06-11-2007
A New York lawyer who used a cartoon image of a heavily bandaged patient to advertise his personal injury practice may be entitled to copyright protection for the drawing, a federal judge has ruled.
Richard P. Neimark of Rockland County, N.Y.'s Neimark & Neimark began using the cartoon in 1988, publishing it in Yellow Pages advertisements. The drawing depicts a bandaged patient lying in a hospital bed with a prescription to "Call Neimark" attached to his chart. Neimark registered the drawing with the U.S. Copyright Office in 1990.
Last year, Neimark sued another personal injury law firm, White Plains, N.Y.'s Ronai & Ronai, for copyright infringement after an identical image appeared on a page of its Web site, with the chart now reading, "Call Ronai & Ronai."
Ronai & Ronai moved for summary judgment, arguing that Neimark's image had been injected into the public domain by his publishing it without copyright notice for two years. The firm pointed out that the image pre-dated the 1988 Berne Convention Implementation Act, which eased copyright notice requirements.
But Southern District of New York Judge William C. Conner denied Ronai & Ronai's motion in Neimark v. Ronai & Ronai, 06 Civ. 5484, finding that Neimark's 1990 registration and steps taken in the intervening years may have cured his earlier distribution of the image without copyright.
The judge said federal law permitted the owners of pre-Berne Convention works to receive protection if they registered their works within five years and made a "reasonable effort" to make sure a copyright notice was added to all copies distributed thereafter.
Conner said a trial would be necessary to determine whether Neimark had made a reasonable effort, but the judge noted that the image appeared eight times on Neimark & Neimark's Web site with a copyright notice.
However, the judge noted that Ronai & Ronai had removed the cartoon from its own Web site immediately and questioned the worth of Neimark's pressing his infringement claim.
"Thus far, no evidence suggests any actual damages as a result of the infringement," the judge said, noting he had the discretion to reduce damages for infringement to $200 if he thought the infringement was unwitting.
He urged the parties to settle with a permanent injunction against further infringement and a modest cash payment.
Neimark was represented by George G. Coffinas of Coffinas & Coffinas. Holly Ostrov Ronai appeared pro se on behalf of her firm.
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