89 A.D.2d 503 | N.Y. App. Div. | 1982
Order and judgment (one paper) Supreme Court, New York County (Blangiardo, J.), entered January 11,1982 which granted plaintiff’s motion for partial summary judgment on the issue of liability and adjudged defendant liable to plaintiff for an amount to be determined at trial, and denied defendant’s cross motion for summary judgment, unanimously modified, on the law, without costs, to deny plaintiff’s motion for partial summary judgment, and otherwise affirmed. Plaintiff is in the business of selling or leasing rights to reproduction of slide photographs. Defendant, a magazine publisher, asked defendant if he had photographs of Fifth Avenue covered with snow to illustrate a magazine article to be published in Germany. Plaintiff delivered 20 slides by messenger to plaintiff. Enclosed with the slides was a printed form containing, in relevant part, the following language: “Please handle with care. Do not touch or allow anything to touch the surface of a transparency. All those lost or damaged will be billed at a minimum of $2,500.00 each. All photos submitted are Copyrighted 1979/1980 by Jay Maisel, and will remain his property. We are not selling the photo itself; only reproduction rights as assigned by our Invoice. Final fee, must be agreed upon, purchase order issued and payment received before any photo is used for publication. The submission of photographs does not constitute any permission to use these photographs * * * Do not return photos by. mail. All photos will be delivered to you by messenger or air courier.