By decision dated November 23, 2004 the lower court of the Civil Court of New York ruled that the subject matter of the action commenced on November 20, 2002 -- Coleman v. Kopeikin -- was preempted by Federal Copyright Law, and dismissed the action without prejudice on that jurisdictional basis. The court came to this conclusion despite the fact that neither the plaintiff nor the defendant had raised the issue of copyright law in their pleadings up to that point.
While I filed a Notice of Appeal, in order to maintain my right to appeal the decision, careful review of the legal options available indicated that I didn't have much chance of persuading an appeals court to agree to reopen the case, so that didn't seem worthwhile. Now, in late August of 2005, almost exactly four years since this situation erupted, I've decided to let my right to appeal expire. I should emphasize that the Kopeikin Gallery was never declared not guilty. The facts in this case, as set forth in the various posts at this site, remain thoroughly documented and have never been denied by this rights infringer.
From what I discovered in the process of pursuing this case, the most potentially fruitful way of handling this would have been to file a complaint for violation of the New York State Civil Right Law, which includes protection of what are called the "right of privacy" and the "right of publicity." I could have filed this suit based simply on his use of my name for promotional purposes in a commercial venue (the Kopeikin Gallery website). Such cases go through State Supreme Court, are relatively easy and not expensive to file on the complainant's end, can be prosecuted pro se (self-represented) by the plaintiff, but involve much larger legal fees on the defendant's end, and much larger penalties -- including punitive damages — if one loses.
Regrettably, recourse to these elements of the NYS Civil Rights Law in the Kopeikin case was precluded -- in both an appeal of the decision in the original case and the filing of a new case -- by the statute of limitations. Ironically, this situation fell outside the statute of limitations because, instead of filing my suit immediately upon discovering the Kopeikin Gallery's abuse, I tried for over a year to negotiate with him before initiating the legal proceeding.
The good news is that the discovery of this aspect of the Civil Rights Law may enable me to pursue several databases and archives that have material of mine online — without my having to have registered copyright with the Library of Congress and without going into federal court.
My legal advisor and I will now prepare the initial filings in one or more suits using this approach, and will test the effectiveness of those in forcing settlements from other infringers. I'll post an advisory on that here.
At the very least I put a stop to the Kopeikin Gallery's theft of 50 essays by myself and three dozen of our colleagues, and cost them a good bit of money, time, embarrassment, and professional reputation. While also putting their cohorts in the gallery world on the qui vive (to some extent) about such behavior. Well worth the effort.
-- A. D. C.
August 18, 2005
