Cite as 117 F.Supp.2d 301 (S.D.N.Y. 2000)
Todd Blecher, New York, NY, for Plaintiff.
Alfred R. Fabricant, Ostrolenk, Faber, Gerb & Soffen, LLP, New York, NY, for Defendants.
MEMORANDUM AND ORDER
PAULEY, District Judge.
This copyright action raises issues concerning the copyrightability of photographs, the work-for-hire doctrine, joint authorship, and the nature of derivative works. Plaintiff SHL Imaging, Inc. (“SHL”) is owned by professional photographer Steven H. Lindner (“Lindner”). Lindner’s work has been published in The New York Times and Sports Illustrated. (Lindner Aff. ¶6.) The defendant Max Munn (“Munn”) is chairman and CEO of defendants Artisan House, Inc. (“Artisan”) and Interiors, Inc. (“Interiors”). The defendants design, manufacture and sell frames for pictures and mirrors.[1] (Munn Aff. ¶3.)
In 1996, Munn hired Lindner to photograph mirrored picture frames manufactured and offered for sale by defendants. Lindner photographed approximately 130 different frames with the understanding that the photographs would be used as color slides by defendants’ sales force. Thereafter, Munn used the photographs in a catalogue, reproduced them in 5,000 brochures, and offered them as magazine “comps” or publicity releases. Defendants also provided Lindner’s photographs to Photo-2-Art, Ltd. so they could be scanned into a computer for manipulation and displayed to customers.
Defendants move for summary judgment on plaintiff’s copyright claims[2] on the grounds that the photographs are not original, or alternatively, if they are, that defendants were either joint authors or the sole work-for-hire author. On July 20, 2000, this Court notified the parties that it was considering a grant of summary judgment to plaintiff and afforded defendants the opportunity to make additional arguments or submit additional evidence. Thereafter, defendants submitted a supplemental memorandum.
For the reasons that follow, defendants’ motion for summary judgment is denied, and this Court grants summary judgment to plaintiff on the issue of liability under the Copyright Act, 17 U.S.C. § 101, et seq. At the outset, this Court observes that its sua sponte grant of summary judgment rests on an analysis of issues raised by the defendants in their motion and supplemental submission. Thus, the defendants have not been prejudiced by a lack of notice or any inability to offer evidence. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir.2000).
BACKGROUND
Prior to photographing the frames, Lindner made a number of creative decisions including selection of a camera (a handcrafted Hasselblad 500 EL), lenses (Zeiss 50mm and 80 mm), film type (C-Print negative Fuji ASA 160), paper type (seamless), as well as diffusers, reflectors, and lighting equipment. (Lindner Aff. ¶13.) Lindner supplied all of the photographic equipment for the process (Lindner Aff. ¶12.)
The photo shoot spanned four days at Interior’s factory. (Lindner Aff. ¶4.) Assisted by his employee Ersellia Ferron (“Ferron”), Lindner arranged both the lighting and staging of the frames. In-
