Mapplethorpe Foundation, Guggenheim Named in $25 Million Copyright Infringement Lawsuit

The Robert Mapplethorpe Foundation and a number of prominent art museums and galleries have been named in a new copyright infringement lawsuit in connection with a selection of late photographer's “self portraits.” According to the lawsuit, which was filed by “prolific and accomplished performance poet, writer, actor, photographer and photojournalist,” James “Bobby” Miller, the Mapplethorpe Foundation “has misrepresented and continues to knowingly misrepresent Miller's images as the work of Robert Mapplethorpe as 'self-portraits'” when they are really the intellectual property of Miller, himself.

According to the complaint, which was filed this week in the Southern District of New York, a federal court in Manhattan, the Sean Kelly Gallery and Skarstedt Gallery have “many times distributed, and continue to distribute, Miller’s images by sale or other transfer of ownership, or by rental, lease or lending, thereby infringing upon plaintiff’s exclusive rights under the copyright laws of the United States.” Miller claims that both galleries have made “not less than TWENTY MILLION DOLLARS ($20,000,000) […] as a result of their wrongful conduct.” And that he is, in fact, entitled to such funds due to his ownership of the copyright in the photos.

Moreover, the suit claims that the Solomon R. Guggenheim Foundation and Whitney Museum of American Art have “publicly displayed and continue to display Miller’s images, both at their museums in New York and by digital transmission on their websites, in violation of Miller’s exclusive rights on the copyrights of such works.” Miller claims that while such damages will need to be calculated at trial, they certainly exceed $5 million dollars.

As for the photos themselves, Miller, who asserts that he is “the author of no less than eighteen books of his photographs, including among others: Fabulous! A Photographic Diary of Studio 54 (St. Martin’s Press 1998); A Downtown State of Mind: NYC 1973-1983; Wigstock in Black and White: 1985-2005; and Fabulous! A Photographic Diary of Studio 54: REDUX,” claims that he – not the late Mapplethorpe – took them in late November 1979. The lawsuit alleges:

On November 22, 1979 plaintiff, Miller, spent the evening with Robert Mapplethorpe and another friend, Larry Desmedt. The evening began at Robert Mapplethorpe’s loft on Bond Street in lower Manhattan, where Miller, with Mapplethorpe’s knowledge and consent, recorded the conversation and interviewed Mapplethorpe on a variety of subjects […] Miller, who was also a proficient makeup artist, persuaded Robert Mapplethorpe to let Miller put Robert Mapplethorpe in feminine makeup and accessories so that plaintiff could photograph Robert Mapplethorpe for plaintiff’s archives.

Miller, applied makeup that he had brought with him to Robert Mapplethorpe, styled Robert Mapplethorpe’s hair, adjusted the lighting in Robert Mapplethorpe’s studio, put Robert Mapplethorpe in costume and operated the camera’s shutter to shoot a roll of film (12 images) of Mapplethorpe, some with Mapplethorpe just in feminine makeup and some with Mapplethorpe in feminine makeup and wearing a fur collar.

Plaintiff did not take the undeveloped film with him when he left Robert Mapplethorpe’s loft early on November 23, 1979. Instead, Robert Mapplethorpe said that he would have his studio assistant develop the film for plaintiff in Robert Mapplethorpe’s studio. Plaintiff never received the developed images from Robert Mapplethorpe.

Since then, the Mapplethorpe Foundation has refused to recognize Miller as the author of the Images, and has failed and refused to cease its infringing conduct, despite the fact that Miller “is the copyright owner of the Images, which together are the subject of a valid Certificate of Copyright Registration issued by the Register of Copyrights.”  

As a result of the foregoing (and the exclusive rights granted to Miller under the Copyright Act, which include the exclusive rights to reproduce the images, to distribute said images to the public by sale or other transfer of ownership, or by rental, lease or lending, and to display the images publicly), Miller has filed suit to recover damages arising from alleged infringement “within the three-year period immediately preceding the date of commencement of this action, by defendants of Miller’s copyright in certain photographic images composed, taken and authored by Miller, and to enjoin defendants from future infringement.”