414 F.Supp.3d 625
S.D.N.Y.2019Background
- Plaintiff Annamarie Trombetta (pro se) alleges Estate Auctions, Inc. (owned by Norb and Marie Novocin) listed and sold an oil painting on eBay described as signed and attributed to Trombetta; the eBay posting (archived on Worthpoint) reproduced Trombetta’s website biography. The sale appeared to occur in December 2012 for $181.50.
- Trombetta says she did not paint in 1972 (was nine years old) and did not paint in oil until 1981, so the attribution was false. She contacted Worthpoint and Estate; postings were removed and later reposted; defendants denied wrongdoing.
- Trombetta sued in February 2018 asserting claims under the Lanham Act (false designation), the Copyright Act, VARA, New York Civil Rights Law §§ 50–51 (right of publicity), and New York Artist’s Authorship Rights Act (AARA) § 14.03; she sought damages and a declaration that she did not create or sign the painting.
- At filing she had not registered the website biography; she later obtained a copyright registration with effective date June 18, 2018. Defendants moved to dismiss; the court stayed the case for settlement then resolved the motion.
- Court disposition: Lanham Act, NYCRL §§50–51, and AARA §14.03 claims dismissed with prejudice; copyright claim dismissed without prejudice (permission to move to amend to replead after registration); VARA claim survives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lanham Act (false designation under §43(a)) | Trombetta: defendants used her name on the listing causing consumer confusion and economic injury. | Defs: plaintiff has no valid trademark/right in her name; no likelihood of confusion. | Dismissed — plaintiff failed to allege her personal name acquired secondary meaning (no protectable mark). |
| Copyright infringement | Trombetta: defendants copied her website biography into the auction listing. | Defs: plaintiff did not adequately plead ownership/registration at time suit was filed. | Dismissed without prejudice — registration requirement not met prior to filing. |
| VARA (17 U.S.C. §106A) | Trombetta: defendants falsely attributed authorship to her; VARA forbids use of an artist's name on works she did not create. | Defs: dispute over whether the painting qualifies / attribution suffices. | Survives — pleading of false attribution of a single painting is plausible; VARA claim may proceed. |
| AARA §14.03 (NY Artist's Authorship Rights Act) | Trombetta: unauthorized use of her name grants a cause of action under §14.03. | Defs: statute applies to alteration/defacement of an artist's work, not mere misattribution. | Dismissed with prejudice — §14.03 addresses damage to an artist's work via alteration, not misattribution of authorship. |
| NY Civil Rights Law §§50–51 (right of publicity) | Trombetta: posting her name/biography violated her publicity rights. | Defs: claim is time-barred. | Dismissed with prejudice — one-year statute of limitations; posting was in 2012, suit filed 2018. |
| Declaratory relief / remedy | Trombetta seeks declaration she did not create/sign the painting. | Defs: — | Request for an independent declaratory cause of action dismissed (remedy, not standalone cause); court may consider declaratory relief if other claims succeed. |
| Leave to amend (copyright) | Trombetta seeks chance to replead after registration. | Defs: — | Court permits motion for leave to amend and a proposed amended complaint to replead copyright claim (deadline set). |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading plausibility standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading framework)
- Hogan v. Fischer, 738 F.3d 509 (pro se complaints afforded special solicitude)
- Afalletier v. Dooney & Burke, Inc., 454 F.3d 108 (Lanham Act confusion framework)
- Lane Capital Mgmt., Inc. v. Lane Capital Mgmt, Inc., 192 F.3d 337 (trademark classification analysis)
- Rockland Exposition, Inc. v. Alliance of Automotive Serv. Providers of New Jersey, 894 F. Supp. 2d 288 (factors for secondary meaning)
- Lefkowitz v. McGraw-Hill Global Educ. Holdings, LLC, 23 F. Supp. 3d 344 (elements for pleading copyright infringement)
- Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (registration requirement for copyright suits)
- Pollara v. Seymour, 344 F.3d 265 (VARA's protection of moral rights)
- Einhorn v. Mergatroyd Produs., 426 F. Supp. 2d 189 (dismissing name-as-mark claim where no secondary meaning)