Jerome Schurr v. Austin Galleries of Illinois, Inc., A/K/A Austin Publishing Company
719 F.2d 571
2d Cir.
1983
Check Treatment

*2 GRAAFEILAND, Before VAN PIERCE WISDOM,* Judges. Circuit PIERCE, Judge: Circuit appeals Defendant from an order of the United States District Court for the South- ern District of New York entered on De- Stewart, Jr., cember E. Charles Judge, finding contempt. defendant in manufacture, order found that defendant’s reproduction, and sale of certain works of Cove,” “Chasm,” art entitled “Horizon” contempt by constituted violat- ing a Final on Consent entered on June

BACKGROUND Plaintiff-appellee Jerome fi- nancially successful commercial artist who produces seriagraph images of California in an landscape impres- scenes sionistic form known as the California or Western style. Defendant-appellant Austin (Austin), Galleries of Inc. is a chain galleries Chicago retail art * Judge Senior of the United States nation. Appeals Circuit, sitting by desig- for the Fifth York, in which he District of New 1981, Austin formed a Southern

Detroit areas. Wilson, division, Austin Pub- works of man- that the five publishing claimed separate distribute, Austin, publish violat- lishing Company, and distributed ufactured prints. wholesale, limited edition signed (Schurr’s) copy- his infringed upon ed and others, manufactures Among works. righted Wilson, a Robert the works of. distributes *3 the parties negotiations, After settlement artist who creates California commercial and a Agreement a executed Settlement coastline, lake, and mountain and Paragraphs on Consent. -Judgment Final scenes. and Agreement 2b and 3 of Settlement creation, accomplished style of Schurr’s on Con- Judgment 5 of the Final paragraph method, images screening features by a silk alia, Austin would inter provided, sent mountains, water, sky. bodies of and of manufacture, or sell reproduce, print, to each represent basic color is chosen One simulates the visually work “which any mountains are component. The landscape work creat- subject any matter of style and flat, superimposed of shown as a series Rubin, E. Leonard by ed” Jerome Schurr.1 next, slightly offset from planes, each counsel, Chicago then forwarded Austin’s in thir- varying sequentially planes with the letter, to dated June transmittal gradations of shades ty thirty-five to the signed York counsel with New Schurr’s narrow from to dark. A same color Judgment and Final Agreement Settlement color, representing a contrasting border in a the trans- three of Paragraph on Consent. beach, interface of the water appears at the mittal letter stated: wildlife People, buildings, mountains. and important again to once stress I feel it appear or other details do not Schurr’s visually “. .. simulates priced works. The works Schurr Also, any have become matter of work subject to and style $600 $1500. art commercially popular as decorative it appears ...” by created SCHURR Ac- reprinted price posters. when as low 2b) and 3 of Set- paragraphs [sic] Austin, works are not cording to the Schurr 5 of paragraph and in Agreement tlement quality museum and are not considered of Consent, is not Judgment on the Final fine art. interpreted to and should not be intended lawful any way any limit in became aware that April, In use or Inc. to Galleries selling and works of advertising Austin was of Je- style imitate the sell works attributed to Robert Wilson entitled art Schurr, as such imitation long so rome Lake,” “Rocky Bay,” “Canyon “Blue infringe- copyright not constitute does “Reflections,” Coast,” and “Solitude.” ment; is that Austin Galleries an action in commenced May, any surrender agreeing is not District for the the United States Judgment Paragraph Paragraph Agreement five of the Final on Con- 2b of the Settlement presently posses- stated that “AUSTIN stated: visual- or control of no other works which sion PUBLISHING COM- AUSTIN Defendant any ly style subject servants, simulate the matter PANY, officers, employees and by Paragraph three work created SCHURR.” persons attorneys, in active con- and those Agreement stated: of the Settlement them, participation with are herein- cert or herein, Except specifically permitted enjoined permanently restrained after AUSTIN, agents, any its officers and manufacturing, reproducing, printing or them, party privity shall forthwith medium, any any work which visu- manufacture, reproduction, terminate subject ally matter of simulates the medium, any any printing work or sale on by plaintiff any JEROME work created visually sub- simulates the SCHURR, including limited to the but not SCHURR, by ject created matter of work entitled sold defendant works heretofore including but not limited to the aforesaid LAKE, COAST, SOLI- CANYON ROCKY entitled of AUSTIN “ROCKY works TUDE, BLUE BAY. REFLECTIONS and LAKE,” “SOLITUDE,” COAST,” “CANYON “REFLECTIONS,” and “BLUE BAY.” have rights may lawful under United nental U.S. laws. copyright 43 L.Ed.2d 148 Col States S.Ct. (9th Thompson, lins v. Judgment On June the Final on Cir.1982); Vollert, F.2d Robinson v. entered the United Consent was States (5th Cir.1979), reh’g for petition District Court for Southern District denied, (5th banc 609 F.2d 1177 reh’g en New York. Cir.198.0); York Association State 24,1982, On November Schurr initiated a Children, Carey, Retarded proceeding to hold Austin in denied, (2d Cir.), cert. U.S. alleged the latter’s failure to comply As (1979). S.Ct. Final Consent. Schurr contract, contended that four new works Robert should be ascertained the four cor within Pass,” Reach,” “Eagle “Rocky Wilson— “Chasm,” ners of the instrument. ITT Continental (also and “Cascade” known as *4 935; Co., 238, at Baking at 95 S.Ct. U.S. “Hoyt’s Cove”) were featured in an —which Co., United v. States Armour & U.S. advertisement which appeared the No- 1752, 1757, 91 S.Ct. News, vember 1982 issue of Art Business Robinson, 92; 602 F.2d at New violated the Final on Consent. York State Association for Retarded Chil Upon application, and after an Schurr’s dren, Inc., 37; 596 F.2d at Hart Schaffner initial comparison visual of the works at an Marx, & 341 F.2d at 102. hearing Stewart, oral held by Judge a tem- porary restraining pro- order was entered upon “reliance certain aids hibiting further sale of the four new Wilson to construction is proper, any other works. The order was entered on Novem- contract. aids the circum Such include ber surrounding stances the formation of the On November and December consent [judgment], any meaning technical hearing contempt as to was held may words used have had to the parties, before the judge. hearing, district At the any and other expressly incorpo documents the four aforementioned Wilson works and rated in the decree.” ITT Continental Bak another examined. work —“Horizon”—were Co., ing at U.S. 95 S.Ct. at 935 Immediately the following hearing, on De- (footnote omitted); see also New York 1,1982, cember the judge opin- rendered his Children, State Association for Retarded ion from the bench. He found Austin in Inc., 596 F.2d at 37. a court Additionally, contempt enjoined further sales of may interpret the terms contained in a con “Chasm,” “Horizon,” “Hoyt’s Cove.” judgment by examining extrinsic docu An order the encompassing judge’s district ments. Instrumentalist v. Marine Corps Co. conclusion, dated December was League, (7th Cir.1982). 13,1982. entered on December This appeal Further, an examination of “the circum followed. stances the the surrounding order and con parties text in which the were operating” DISCUSSION has been found the by Supreme Court not A judgment consent or decree is to violate the “four corners” rule. ITT “an parties entered upon Continental at U.S. the record with the sanction approval S.Ct. [cjourt.” Oyster Bay Town of Forte, 5, 34 Misc.2d 219 The issue herein is whether the dis (N.Y.Sup.Ct.1961); see also Hart trict court erred when it that Schaffner determined Stores, & Marx v. Alexander’s the Department Austin was June Inc., (2d Cir.1965). For judgment manufacturing 1982 consent enforcement, purposes judg a consent the works of art entitled Cove,” “Chasm,” ment interpreted should be construed and and “Horizon.” follow, as a contract. United v. ITT which States Conti- For the reasons we determine 16,1982 the terms erred, purported vary as it and we reverse court that district the judgment. Additionally, consent the its decision. resort to extrin- that states “[w]hile is, of analysis of our starting The intent is some- parties’ sic evidence course, of the consent language to resolve ambi- in order permissible times five of Paragraph ment. which the words meaning guities in repro- stated that Austin would ment intent, that express chose to visually duce, work which print “any or sell Last, here.” ambiguity no such there is subject matter of simulates district court’s contends that work created” Jerome Schurr. any as it be affirmed order should nevertheless lan- interpreting the judge, district court the letter acknowledge” than “did no more guage, stated: no revers- and thus committed opinion in its think, of this purposes I at least for the error. ible difficulty I don’t have proceeding, in the consent words clear conclude that the district court We here, is, defendant applicable June considering erred the letter of ly selling any enjoined publishing, conjunction with the consent 1982 in visually work which simulates specific finding of its work created subject matter to the facts of plaintiff applied unambiguous.” “clear and Under is suffi- this case. I think that law, may only con York contract ciently unambiguous. clear and interpre sider extrinsic evidence in contract *5 cannot be parties if the intent of the tation itself be I find that the from the document For future reference ascertained 1, which 16,1982], ambig June Exhibit therein is language letter cause contained [of interpreting Gold, in the Ltd. v. Holdings, I took into account Teitelbaum uous. along delivered judgment, consent was 421 48 N.Y.2d 396 N.E.2d was, so judgment Canter, with the consent (1979); 559 Canter v. N.Y.S.2d accepted by plaintiff the appears, far 154 91 A.D.2d 459 N.Y.S.2d time it the consent signed at the 1983); Savings Bank (4th Dep’t Village [Schurr] that I find that it should judgment. So 145, 149, 451 87 A.D.2d Caplan, effect, the con- incorporated, be in with 159,161 1982); see also Nathan v. (2d Dep’t judgment.... sent Press, Inc., F.Supp. Review 309 Monthly the district (S.D.N.Y.1969). Since added). (Emphasis in language that the court found expressly court Austin contends that the district it unambiguous, judgment the consent was explanatory the lan- properly incorporated June the letter of by considering erred 16, 1982 in guage of the letter of June language the of interpretation its of in interpreting provisions paragraph the of judgment. of the consent paragraph five judgment. five of the consent language argues Austin in its brief of this case Because the resolution to paragraph special meaning five “had docu of written interpretation turns on language and that “the em- parties” the witnesses, we ments, credibility of and not counsel ... were ployed by plaintiff’s [sic] judicial limited of expedient deem to parties intended between counsel for the contract the issue of resources to resolve limited in mean that Austin was not to be First, the herein. presented construction works that any way using selling or parties the urged upon by us interpretations Schurr, style plaintiff, imitated the judg of the consent language the regarding long such imitation did not constitute so us that the convincing ment do succeed infringement.” copyright five, a sec paragraph pivotal language to the district tion, Contrary ambiguous. is that, lan- contends because the Schurr the view, not believe that we do face, court’s clear on guage is the district can be ascertained parties June intent disregarded should have the letter of As judgment. five the consent graph of judgment. of the consent from the face court, the the district Second, ambiguous correctly noted language the because the consent we deemed it parties, the letter delivered as to the intent of he before June accepted the letter of ment and necessary to read Austin’s concur- judgment. then counsel signed sent Austin’s the consent prior of the consent with the return then indicated rently counsel letter — the of ment, interpretation to the as an aid signing to Schurr’s —that Next, having considered read not be parties’ intent. should judgment the consent consent conjunction the letter in lawful any way any limit in “to that we conclude use or judgment, Inc. to Galleries it is enforceable because judgment is not Jerome imitate the sell works that meeting that there was apparent does not Schurr, as such imitation long so the most essential term regarding minds infringement....” copyright constitute and condition of the contract-like consent Austin’s then effect of this letter from the restraint im- judgment scope of counsel, pro- as it did the accompanying —the posed regarding on Austin was to render the posed judgment, consent art manufacturing of works of similar Despite utter nullity. consent an Schurr’s. letter, con- receiving signed this and returned it to the court. law, contract Under New York presently argues He valid, basis of a enforceable fundamental paragraph five of the minds of the meeting contract is a of art which imitate should cover all works Allen, parties. Ogden v. A.D.2d irrespective of of Jerome Schurr 142, 144 aff’d, (3d Dep’t 1964), 249 N.Y.S.2d positions Both copyright infringement. 14 N.Y.2d 200 N.E.2d 251 N.Y.S.2d reasonable, positions reflect but see also Restaurant Associates expected have been would Inc., Industries, Anheuser-Busch, reaching mutual prior to take F.Supp. (S.D.N.Y.1975), decided language. We are merits, (S.D.N.Y. F.Supp. *6 progress did not convinced that 1976). If of the minds meeting there is that there was no meet- beyond point, terms, on all essential there is no contract. meaning ing of the minds on This is because an enforceable contract re that, regarding scope, and crucial quires mutual assent to the essential terms must consequently, and conditions thereof. v. Gupta Universi unenforcea- nullity now be declared a Rochester, ty A.D.2d 395 57 ble. 566, (4th 1977); Dep’t 567 see also Associates, Inc., Wilson-Rich v. Don Aux have the other contentions We considered F.Supp. (S.D.N.Y.1981); parties, 1230 n. 7 most of which focused Litton Industries of the works of Corp. Credit v. Plaza Su similarities differences Malta, Inc., Because per F.Supp. (N.D. and the works of Wilson. N.Y.1980). Herein, nullity Austin and did we declare the consent unenforceable, unnecessary not arrive at the of mutual assent we deem contentions.2 necessary regarding para- to address those note, however, screening technique. having expensive seriagraph 2. We do after less marketed, during priced viewed the works of oral Schurr’s works were both artists When argument, chambers, substantially higher fail to than those of Wilson. Fur- and later we ther, comparison many copyrighted of the works indi- discern similarities a visual “Chasm,” works exhibit different col- Schurr works and the Wilson works cates that Wilson’s “Horizon,” distinguished by grada- fewer Both artists ors which are Cove.” sharper painted style— delineations than or tions and have the California Additionally, subjects according expert testimony Schurr’s works. which angular originated by using are more than those either a series Wilson’s works artist — best, gradations in Schurr’s works. At most Schurr used contained of color. comparison of the technique said of a works silk Wilson used the that can be screen whereas

CONCLUSION America, Appellee, STATES of UNITED reasons, we reverse foregoing For the finding order of the district v. with the comply for its failure to SILVESTRI, Joseph R. of June Final Consent Defendant-Appellant. 1982. 1382, Docket 83-1068. No. Appeals, United States GRAAFEILAND, Judge, VAN Circuit Circuit. Second

concurring: Argued July has the at- Because a consent judicial and a tributes of both a contract Decided Oct.

decree, v. ITT Continental United States 236 n. 95 S.Ct. 420 U.S. (1975), the n. functioning judicial process

proper understandings undisclosed

precludes decree. from the terms of the See

vary

Artvale, Corp., Fabrics Rugby Inc. v. (2d Cir.1962). Where

F.2d 65(d)

specificity provisions Fed.R.Civ.P. Carba, involved, Corp. see Diapulse

Ltd., Cir.1980), it is (2d court and

especially important that both are in as to the nature

counsel enjoined. is to be

of the conduct which See Metals, Bargen,

Brumby

(7th Cir.1960). there was no such Since case, agree

accord in the instant I

injunction should be vacated. *7 creativity which is same of an individual and the of the two artists is that exist in the art, genre. ignited the work of that in others who view

broad known as move- Genres individual, ments, throughout in the same view other works are common our recorded' who original simply history. creativity genre, achieve a similar to think of the or who One hesitates Herein, by separate if suppressed, route. one been creation but that would have way deprived beauty on which the balance must had to decide civilization would have been of, swing, would have to be careful consideration if creative individuals were forbidden creativity Indeed, protecting genre. given of those —in- creating there art in the same cluding many Wilson —who have viewed Califor- art movements that we would be fewer painting and have presently regard nia or Western to the art world. common experiences into their own cre- Obviously those must be translated there is a balance which original protecting ations. creation struck between