Ono alleges infringement of 374 family photos she claims were stolen as part of an elaborate scheme to profit from John Lennon’s death. Does she have a case? And does Ono actually own the copyrights in the photos?
December 8, 2020 marks the 40-year anniversary of John Lennon’s death, which will likely lead to an increased wave of interest in Lennon’s life and legacy. In a new lawsuit filed on Thursday, Lennon’s widow Yoko Ono claims that the family’s ex-assistant Frederic Seaman is threatening to profit from Lennon’s death and violate a 2003 consent judgment which prevents him from talking about the family or publishing photos he took of Lennon during the star’s final years.
Ono’s lawsuit (read here), filed in federal court in the Southern District of New York, alleges that Seaman was hired as an employee of the Lennon household in February 1979. His duties included caring for the Lennons’ son Sean, running errands, and accompanying the family on their travels. Like the employees of many celebrities, Seaman signed a confidentiality agreement acknowledging that he would not publicize any information he obtained about the Lennon family in books or interviews.
After Lennon was murdered on December 8, 1980, Seaman allegedly launched a scheme to exploit Lennon’s death by stealing personal items from the Lennon family, including Lennon’s personal diaries. Seaman apparently even gave his plot a code name, “Project Walrus,” presumably after the Beatles song “I am the Walrus.” I guess as far as code-named plans go, it’s a bit catchier than “Project Everybody’s Got Something To Hide Except Me And My Monkey.” Seaman’s criminal activities ultimately led to his indictment in 1983. He plead guilty to second-degree larceny for theft of Lennon’s journals and was sentenced to five years’ probation.
As part of a plea bargain agreement with the district attorney’s office, Seaman promised to return the Lennons’ property, and turned over several boxes of photographs and personal items to Yoko Ono.
“The Last Days of John Lennon”
However, in 1991, Seaman wrote a book, “The Last Days of John Lennon: A Personal Memoir,” in which he recounted memories of his time with Lennon and published several photos that he had taken of the Lennon family.
Above – Fred Seaman photo of Lennon family on Thanksgiving, 1979. John looks like the IT guy at a tech startup.
Seaman’s account of John Lennon’s last days wasn’t particularly flattering, certainly as far as Yoko Ono is concerned. Seaman portrays Lennon as depressed and virtually imprisoned at The Dakota, controlled by an overbearing Ono.
Ono’s 1999 Lawsuit and Consent Judgment
After learning of the book, as well as the fact that Seaman had sold Lennon memorabilia and retained numerous photographs (allegedly in violation of his plea agreement), Ono brought a lawsuit against Seaman in 1999.
Following several days of trial in 2002, Ono and Seaman entered into a consent judgment. Per the parties’ agreement, which was blessed by the court in 2003, Seaman was enjoined from reprinting “The Last Days of John Lennon” and from publishing hundreds of photos he had taken of the Lennon family. (Old copies of the book are still floating around the internet and sell for about $50).
Fred Seaman’s 2020 Interview
Yoko Ono thought that her dealings with Seaman had come to an end almost twenty years ago. But according to her new lawsuit, Seaman violated the consent judgment in September 2020 when he discussed his employment with the Lennon family and other prohibited topics in an internet interview.
During the interview (which was with what appears to a relatively obscure Australian outfit called “Plastic EP TV“), Seaman also stated that “at some point in the future I would like to revise [“The Last Days of John Lennon”] and publish a revised and expanded edition.” When Ono’s lawyer sent Seaman a demand letter to which he failed to respond, Ono filed suit for copyright infringement, breach of the consent judgment, and fraud.
Does Yoko Ono Have a Claim for Copyright Infringement?
Yoko Ono is no stranger to copyright infringement actions. In 2008, she brought suit against the producer of a documentary that featured fifteen seconds of the John Lennon song “Imagine.” That effort proved unsuccessful, with the court finding fair use. Does Ono have a copyright claim here?
Copyright Ownership of the Lennon Photos
The first question we need to ask is whether Ono owns the copyrights in the 374 Lennon family photos she claims were infringed. While her complaint is not entirely clear, it appears that these photos were all taken by Seaman. Under U.S. copyright law, the copyright in a photograph is usually owned by the person who took the photograph, not its subject. This is why a number of celebrities, including Jennifer Lopez, Katy Perry and Emily Ratajkowski have been recently sued for publishing photos of themselves on Instagram when they haven’t received permission from the photographers who took them. (If you’re interested in learning more about the legal implications of reposting photos on social media, check out my recent post on the topic.)
Perhaps anticipating this issue, Seaman’s consent judgment does speak to ownership of the photos, reciting that “[b]y this Judgment, it is hereby declared that the 374 Photographs and any other photograph taken by Frederic Seaman of any member of the Lennon Family…. are works-made-for-hire for the Lennons, and, accordingly, Mrs. Lennon, as successor to all joint interests of the Lennons, is the rightful owner of the copyrights therein.”
Works Made For Hire
Works made for hire are an exception to the general rule that the person who creates a work of authorship is deemed to be the author and owner of that work. Under the 1976 Copyright Act (which was in effect at the time Seaman took the Lennon family photos at issue), a work made for hire includes:
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned [in one of nine enumerated categories] if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.17 U.S.C. § 101
Works Prepared By Employees
There doesn’t seem to be any dispute that Seaman was employed by the Lennons. The more interesting question is whether he was acting within the course and scope of employment when he took his photos. Ono’s complaint characterizes Seaman as basically a gofer who was employed to run errands for the Lennon family. If taking pictures of the family were part of his duties, then there’s a good chance that any on-the-job photos he took of the Lennon family were owned by his employers as a work made for hire. If, on the other hand, Seaman took the photos as a “family friend” during his off time (as he’s previously claimed), then he would own them. It strikes me as odd that a celebrity would employ an assistant for the purpose of taking random family snapshots, but obviously I wasn’t there and don’t know Seaman’s arrangement.
Specially Commissioned Works
The second circumstance that can give rise to a work made for hire is when the work is specially ordered or commissioned in a writing signed by both parties, so long as it falls within one of nine enumerated categories. These categories include a “contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.”
Note that photographs are not included among the specific categories of works that can qualify as works made for hire, unless they can be shoehorned into one of the other categories, such as a contribution to a collective work. This isn’t likely with respect to the type of one-off photos that Seaman took of the Lennon family.
In addition, whether parties have a work for hire relationship is determined by the parties’ agreement in existence at the time the work is created, not an after-the-fact characterization of the parties’ relationship. For example, in Marvel Characters v. Simon, the Second Circuit held that the parties’ characterization of a comic artist’s contributions as a work made for hire in a settlement agreement years after the fact was not determinative of the nature of the work at the time of its creation.
In Ono’s case, Fred Seaman also signed an after-the-fact settlement agreement with Ono, but that agreement was entered as a consent judgment by the court in 2003. Generally, under New York law, a judgment on consent is conclusive and has the same effect on later proceedings as a judgment after trial. That said, I’m not aware that any court has ever decided whether a consent judgment that blesses an after-the-fact characterization of a work as “made for hire” is determinative of the work’s copyright status. Keep in mind that the validity of a consent judgment is governed by the laws of each particular state, while copyright is solely a creature of federal copyright law. To the extent the laws conflict, federal law would prevail.
If Ono can demonstrate that she owns the copyrights in the photographs taken by Seaman, she’ll next need to prove that he infringed them. Here, Ono’s complaint is also less than clear. The only act of disclosure that she alleges to be in violation of Seaman’s consent judgment and injunction is his interview with the Plastic EP show. Ono claims that a photograph of Lennon in Bermuda was visible during this interview.
It’s not clear whether she’s referring to a photo of Lennon hanging on the wall behind Seaman (which is not particularly visible or identifiable) or a photo of the family on the back cover of Seaman’s book. But even if Seaman’s display of one of these images during the interview constituted a “reproduction” of that particular image, what about the other 373 photos? Seaman did mention during his interview that “at some point in the future” he’d like to reprint his book (which contains several of the the photos). However, this is a pretty vague statement of desire, not necessarily a statement of intent—and certainly not an actual act of infringement.
While the information Seaman disclosed in the interview may constitute a violation of his consent judgment—which no doubt carries legal consequences—it’s far from obvious that a valid claim for copyright infringement is one of them. And interestingly, Ono’s complaint only appears to seek a total of $150,000. This represents the maximum statutory damages available for an act of willful copyright infringement of one work. Theoretically, the separate infringement of 374 photos would carry maximum damages of over $56 million.
It will be interesting to see if Seaman is able to find a lawyer to test any of the issues I’ve raised. If he does, I’ll post an update. In the meantime, if you have thoughts on Yoko Ono’s latest lawsuit, let me know in the comments below on on the Copyright Lately social media accounts.