Ali v. The Final Call, Inc., No. 13 C 6883, Slip Op. (N.D. Ill. Jun. 19, 2015) (Feinerman, J.).
Judge Feinerman granted defendant Final Call’s motion to strike one line of plaintiff’s errata sheet and denied plaintiff’s motion for summary judgment of liability in this copyright dispute involving plaintiff’s portrait of Minister Louis Farrakhan, titled “Minister Farrakhan Painting.”
Farrakhan paid plaintiff $5,000 for the painting (which included plaintiff’s name and a copyright symbol) in 1983 and hung it in his home. Plaintiff registered his copyright in 1986. The Final Call subsequently began selling prints that included plaintiff’s painting, a color border and an inscription. The parties agree that plaintiff owns the copyright and only dispute whether the prints were authorized by plaintiff.
Plaintiff contends that he never licensed any prints. The Final contends that two pieces of evidence show that the prints were licensed:
- A March 2008 letter plaintiff wrote to The Final Call stating “[t]he Commission awarded by the Minister for his Oil & litho”. The Final Call argues that the letter evidences that they were licensed to make lithographs.
- Plaintiff’s deposition in which he answered “yes” to a question about whether he was aware at the time of the March 2008 letter that lithographs of the painting had been made as well.
As to the deposition testimony, plaintiff filed an errata sheet which, among other things, changed his answer from “yes” to “no.” Plaintiff maintained that he misunderstood the question and, therefore, sought to correct his answer after the deposition. The Court held that, absent a transcription error, errata sheets cannot be used to change deposition answers in a way that would contradict the original testimony. And the Court reasoned that “nothing contradicts ‘yes’ more than ‘no.’” The Court did, however, acknowledge that plaintiff could offer a different answer at trial and offer his explanation when he was cross-examined on his deposition answer.
In view of the March 2008 letter and plaintiff’s deposition testimony, there was a question of fact as to liability.