text:
Tiegel, Eliot. Latinization of America. How Hispanics are Changing the Nation's Sights and Sounds. Photo available. Beverly Hills. Phoenix Books. 2007. 1240 pps. 4to. Hardcover. First edition. Full number line. Important reference work. Fine copy (several wrinkled pages).
Tolkien, J.R.R. The Lord of the Rings. The Return of the King, The Two Towers, The Fellowship of the Rings. Photo available. Boston. Houghton, Mifflin and Company. 1994. 1137 pps. + maps. 4to. Hardcover. Reprint. Fine copy in fine dust jacket (in mylar).
Topham, John. Traditional Crafts of Saudi Arabia. Weaving - Jewelry - Costume - Leatherwork - Basketry - Woodwork - Pottery - Metalwork. Photo available. London. Stacey International. 1981. 192 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
Tuchman, Maurice & Stephanie Barron. David Hockney. A Retrospective. Photo available. Los Angeles. Los Angeles County Museum of Art. 1988. 4to. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Tuckman, Diane & Jan Janas. The Complete Book of Silk Painting. Photo available. Cincinnati. North Light Books. 1992. 122 pps. 4to. Hardcover. First edition (number line begins with "2"). Illustrated in black, white and color. Important reference work. Related material laid in. Fine copy in fine dust jacket (in mylar).
Tudor, Tasha. Tasha Tudor's Favorite Christmas Carols. Photo available. New York. David McKay. 1984. 54 pps. 4to. Soft cover. First edition thus. Illustrated in black, white and color by Tasha Tudor. Fine copy (small paper label on spine, library stamp on copyright page).
Twain, Mark, Philip Stead, Erin Stead. The Purloining of Prince Oleomargarine. Photo available. New York. Doubleday. 2017. 152 pps. 4to. Gilt decorated hard cover. First edition. Full number line. Illustrated in black, white and color by Erin Stead. Fine copy in fine dust jacket (in mylar).
Tweedy, Kate Chenery, Leeanne Ladin, Penny Chenery. Secretariat's Meadows. Inscribed by the authors. The Land, The Family, The Legend. Photo available. Mnakin-Sabot. Dementi Mileston. 2011. 153 pps. 4to. Hardcover. First edition, third printing. Illustrated in black, white and color. Important reference work. Inscribed by the authors "Penny Chenery Best Wshes - Kate Chenerey Tweedy". Fine copy in fine dust jacket (in mylar).
Unwin, Chris. Chris Unwin's The Artistic Touch 6. Inscribed by Diane Sewell. Photo available. West Bloomfield. Creative Art Press. 2014. 164 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Inscribed "Hal Especially for you. Happy Painting Diane Sewell". Fine copy in fine dust jacket (in mylar).
Vitti, Jim. The Cubs on Catalina. A Scrapbook Full of Memories About a 30-Year Love Affair Between One of Baseball's Classic Teams... & California's Most Fanciful Isle. Photo available. Darien. Settefrati Press. 2003. 4to. Hardcover. First edition. Full number line. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
von Trapp, Maria. Maria. My Own Story. Maria von Trapp. Photo available. np. np. 1972. 203 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
von Wilckens, Leonie. Mansions in Miniature. Four Centuries of Dolls' Houses. Photo available. New York. Viking Press. Studio Book. 1980. 252 pps. 4to. Hardcover. First American edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
Wachhorst, Wyn. Thomas Alva Edison. An American Myth. Photo available. Cambridge. The MIT Press. 1981 328 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine (small, closed tear top edge) dust jacket (in mylar).
Wagner, David J. Americans in Glass. The Leigh Yawkey Woodson Art Museum. Photo available. Wausau. The Leigh Yawkey Woodson Art Museum. 1984. 152 pps. 4to. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Waitley, Douglas. William Henry Jackson. Framing the Frontier. Photo available. Missoula. Mountain Press Pub. 1998. 218 pps. Octavo. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Waldhorn, Judith. A Gift to the Street (Victorian homes). Photo available. San Francisco. Antelope Island Press. 1977. 196 pps. 4to. Soft cover. Reprint. Illustrated with photographs by Carol Olwell. Important reference work. Fine copy (light creases on spine).
Washburn, Jim & Stephen Stills. Martin Guitars. An Illustrated Celebration of America's Premier Guitarmaker. Photo available. Pleasantville. Reader's Digest. 2002. 264 pps. 4to. Soft cover. Illustrated. Important reference work. Fine copy.
Watson, Aldren. Hand Bookbinding. A Manual of Instruction. Photo available. New York. Bell. 1963. 96 pps. Octavo. Hardcover. Reprint. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Webb, Harry. Call of the Cow Country. True Stories by Bronc Buster Harry Webb. Cowboys, Indians, Outlaws, Will James, Butch Cassidy, Buffalo Bill, Mustangs, Coyotes, Bobcats, Lions. Photo available. Carson City. Range Conservation Foundation. nd. 128 pps. 4to. Decorated hard cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).

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COUNSEL: Barbara Hoffman, New York, N.Y. for plaintiff-appellant.
Kim J. Landsman, New York, N.Y. (David M. Levin, Patterson, Belknap, Webb & Tyler, New York, N.Y., on the brief), for defendants-appellees.
(Dorothy M. Weber, Judith A. Kaminsky, Shukat Arrow Hafer & Weber, New York, N.Y.; Michael D. Remer, Cowan, DeBaets, Abraham & Sheppard, New York, N.Y., submitted a brief for amici curiae The Artists Rights Society, Inc. and The Picasso Administration).
JUDGES: Before: MESKILL and NEWMAN, Circuit Judges, and McAVOY, * Chief District Judge.
* Honorable Thomas J. McAvoy, of the United States District Court for the Northern District of New York, sitting by designation.
This appeal primarily concerns the scope of copyright protection for a poster of an artistic work that was used as set decoration for a television program. Faith Ringgold appeals from the September 24, 1996, judgment of the District Court for the Southern District of New York (John S. Martin, Jr., Judge) dismissing, on motion for summary judgment, her copyright infringement suit against Black Entertainment Television, Inc. ("BET") and Home Box Office, Inc. ("HBO"). The District Court sustained defendants' defense of fair use. We conclude that summary judgment was not warranted, and we therefore reverse and remand for further consideration of plaintiff's claim.
1. The copyrighted work. Faith Ringgold is a successful contemporary artist who created, and owns the copyright in, a work of art entitled "Church Picnic Story Quilt" (sometimes hereafter called "Church Picnic" or "the story quilt"). 1 "Church Picnic" is an example of a new form of artistic expression that Ringgold has created. She calls the form a "story quilt design." These designs consist of a painting, a handwritten text, and quilting fabric, all three of which Ringgold unites to communicate parables. The painting is a silk screen on silk quilt. "Church Picnic" is an example of this unusual art form, conveying aspects of the African-American experience in the early 1900's. The painting component of the work depicts a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia, in 1909. Above and below the painting are twelve numbered panels containing a text written in the idiomatic African-American dialect of the era.
The text relates the thoughts of a parishioner who attended the picnic and is waiting to tell her daughter about it when the daughter comes home. The parishioner's daughter is in love with the church pastor, but, as depicted in the painting, the pastor is in love with another woman, and he soon will ask that other woman to marry him. Because the young woman was born out-of-wedlock, the pastor's "high-brow" family is dismayed by the prospect of the imminent engagement. Surrounding the text and painting is a quilted border, consisting of multi-colored triangular shapes of fabric. The very edge of the work is finished with a thin red welt.
Although Ringgold has retained all rights in the copyright in "Church Picnic," the work itself is owned by the High Museum of Art (the "High Museum") in Atlanta, Georgia. Since 1988 the High Museum has held a non-exclusive license to reproduce "Church Picnic" as a poster ("'Church Picnic' poster" or "the poster"), and to sell those reproductions. The "Church Picnic" poster sells for $ 20.00 a copy and was not produced as a limited edition. Thousands of copies of the poster have been sold since 1988. Although the license to reproduce poster copies of "Church Picnic" has terminated, copies of the poster remain available for sale.
Below the portion of the poster that displays "Church Picnic" are several identifying words. "High Museum of Art" appears in letters 1 1/4 inches high. Below these words is the phrase "Faith Ringgold, Church Picnic Story Quilt, 1988, gift of Don and Jill Childress" in letters 1/8 inch high. Below this line, in smaller type, appears "Courtesy Bernice Steinbaum Galley, New York City. Poster 1988 High Museum of Art, Atlanta."
2. The alleged infringing use. HBO Independent Productions, a division of HBO, produced "ROC," a television "sitcom" series concerning a middle-class African-American family living in Baltimore. Some time prior to 1992, HBO Independent Productions produced an episode of ROC in which a "Church Picnic" poster, presumably sold by the High Museum, was used as part of the set decoration.
The title character of "ROC" lives with his wife, Eleanor, his adult brother, Joey, and his father. In the episode in question, Roc pressures Joey, a jazz trumpeter, into giving trumpet lessons to some children in the church congregation, so that Joey, a perpetually unemployed gambler, can earn money to repay a debt he owes to Roc. After the children have taken some lessons, the minister of the church suggests that they give a recital in the newly-remodeled church hall. A five-minute scene of the recital concludes the episode. The "Church Picnic" poster was used as a wall-hanging in the church hall.
As the church audience waits to hear the recital, Roc and Eleanor are standing in the background of the scene, next to the audience and slightly to the left of the poster. The minister is also standing in the background, slightly to the right of the poster. The children play very poorly, and it is evident to Roc and Eleanor that Joey has not taught them anything. The scene and the episode conclude with parents of some of the children thanking Joey for the lessons, each set of parents believing that their child played on key but was drowned out by the other children.
In the scene, at least a portion of the poster is shown a total of nine times. In some of those instances, the poster is at the center of the screen, although nothing in the dialogue, action, or camera work particularly calls the viewer's attention to the poster. The nine sequences in which a portion of the poster is visible range in duration from 1.86 to 4.16 seconds. The aggregate duration of all nine sequences is 26.75 seconds. We describe these sequences in more detail below.
The copy of the poster used in the episode was framed without the identifying wording that appears beneath the artwork. As framed, the poster includes a notice of copyright, but the type is too small to be discernible to a television viewer.
A broadcast television network first televised the episode in 1992, and in October 1994 BET aired the episode for the first time on cable television. In January 1995, Ringgold happened to watch the episode on BET (apparently a repeat showing), and at that time became aware of the defendants' use of the poster as part of the set decoration.
3. District Court proceedings. Ringgold sued the defendants, alleging infringement of her copyright in "Church Picnic Story Quilt," in violation of 17 U.S.C. § 106 (1994), because of the unauthorized use of the poster as part of the set decoration for the episode of "ROC." The complaint also alleged common law unfair competition and a violation of New York's statute protecting artistic authorship rights. See N.Y. Arts & Cult. Aff. Law § 14.03 (McKinney Supp. 1995).
Prior to discovery, the defendants moved for summary judgment, contending (i) that they were not liable for copyright infringement, because their use of the story quilt was either de minimis or a fair use, (ii) that the unfair competition claim was preempted by the Copyright Act, and (iii) that either (a) the plaintiff had not stated a claim under the Artists' Authorship Rights Law, or (b) the Court should decline to exercise supplemental jurisdiction over that state law claim. Ringgold cross-moved for a preliminary injunction to prevent further displays of her art in the sitcom episode.
The District Court denied the plaintiff's motion for a preliminary injunction, granted defendants' motion for summary judgment, and dismissed the complaint. Apparently accepting, or at least assuming, that the plaintiff had sufficiently alleged a claim of copyright infringement, Judge Martin rejected her infringement claim on the ground that undisputed facts established the defendants' fair use defense. He then dismissed her unfair competition claim on the ground of preemption, which she did not dispute, and declined to exercise supplemental jurisdiction over her remaining state law claim.
The Copyright Act grants certain exclusive rights to the owner of a copyright, see 17 U.S.C. § 106 (1994), including the right to make and distribute copies and derivative works based on the copyrighted work, and the right to display the copyrighted work publicly, id. § 106(1)-(3), (5). In the absence of defenses, these exclusive rights normally give a copyright owner the right to seek royalties from others who wish to use the copyrighted work. See American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 929 (2d Cir. 1994, as amended, July 17, 1995) ("American Geophysical"); see also DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir. 1982) (noting that one benefit of owning a copyright is the right to license its use for a fee). Ringgold contends that the defendants violated this licensing right by using the "Church Picnic" poster to decorate the set of their sitcom without her authorization.
The caselaw provides little illumination concerning claims that copyright in a visual work has been infringed by including it within another visual work. Compare Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1996) (film infringed architectural drawing), with Monster Communications, Inc. v. Turner Broadcasting System, Inc., 935 F. Supp. 490 (S.D.N.Y. 1996) (preliminary injunction denied to bar showing of film that included copyrighted film clips). The Nimmer treatise posits the problem of a motion picture in which an actor is reading a magazine of which the cover picture is observable, and acknowledges that "the answer is by no means certain." See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[D], at 13-229 (1997) ("Nimmer"). The treatise observes, with uncharacteristic ambivalence, that a fair use defense might be supported on the ground that "the entire work does not supplant the function of the plaintiff's work," yet also points out that "ordinarily" the copying of a magazine cover into another medium "will constitute infringement, and not fair use." Id.
HBO and BET defend their use of the poster on two separate, though related grounds: (a) that their use of the poster was de minimis, and (b) that, as Judge Martin ruled, their use of the poster was a permissible "fair use," see 17 U.S.C. § 107.
The legal maxim "de minimis non curat lex" (sometimes rendered, "the law does not concern itself with trifles") insulates from liability those who cause insignificant violations of the rights of others. In the context of copyright law, the concept of de minimis has significance in three respects, which, though related, should be considered separately.
First, de minimis in the copyright context can mean what it means in most legal contexts: a technical violation of a right so trivial that the law will not impose legal consequences. Understandably, fact patterns are rarely litigated illustrating this use of the phrase, for, as Judge Leval has observed, such circumstances would usually involve "questions that never need to be answered." Pierre N. Leval, Nimmer Lecture: Fair Use Rescued, 44 U.C.L.A. L. Rev. 1449, 1457 (1997). He offers the example of a New Yorker cartoon put up on a refrigerator. 2 In Knickerbocker Toy Co. v. Azrak-Hamway International, Inc., 668 F.2d 699, 703 (2d Cir. 1982), we relied on the de minimis doctrine to reject a toy manufacturer's claim based on a photograph of its product in an office copy of a display card of a competitor's product where the display card was never used. See id. at 702.
Second, de minimis can mean that copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying. See Nimmer § 13.03[A], at 13-27. In applying the maxim for this purpose, care must be taken to recognize that the concept of “substantial similarity” itself has unfortunately been used to mean two different things. On the one hand, it has been used as the threshold to determine the degree of similarity that suffices, once access has been shown, as indirect proof of copying; on the other hand, “substantial similarity” is more properly used, after the fact of copying has been established, as the threshold for determining that the degree of similarity suffices to demonstrate actionable infringement. See Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 1992); Nimmer § 13.01[B]. Professor Latman helpfully suggested that when “substantial similarity” is used to mean the threshold for copying as a factual matter, the better term is “probative similarity,” and that “substantial similarity” should mean only the threshold for actionable copying. See Alan Latman, “Probative Similarity” as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187, 1204 (1990). The Nimmer treatise endorses and has implemented the Latman taxonomy, see Nimmer § 13.01[B], at 13-12, & n. 31.1, as has this Court, see Lauryssens, 964 F.2d at 140.
In the pending case, there is no dispute about copying as a factual matter: the "Church Picnic" poster itself, not some poster that was similar in some respects to it, was displayed on the set of defendants' television program. What defendants dispute when they assert that their use of the poster was de minimis is whether the admitted copying occurred to an extent sufficient to constitute actionable copying, i.e., infringement. That requires "substantial similarity" in the sense of actionable copying, and it is that sense of the phrase to which the concept of de minimis is relevant.
At first glance, it might seem odd to pursue an inquiry as to "substantial similarity" even after copying as a factual matter has been established. However, the superficial anomaly reflects only a lack of appreciation of the difference between factual copying and actionable copying. The former (probative similarity) requires only the fact that the infringing work copies something from the copyrighted work; the latter (substantial similarity) requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas, a distinction that often turns on the level of abstraction at which the works are compared. See Nimmer § 13.03 [A]. The quantitative component generally concerns the amount of the copyrighted work that is copied, a consideration that is especially pertinent to exact copying, see Nimmer § 13.03[A]. 3 In cases involving visual works, like the pending one, the quantitative component of substantial similarity also concerns the observability of the copied work — the length of time the copied work is observable in the allegedly infringing work and such factors as focus, lighting, camera angles, and prominence. Thus, as in this case, a copyrighted work might be copied as a factual matter, yet a serious dispute might remain as to whether the copying that occurred was actionable. Since "substantial similarity," properly understood, includes a quantitative component, it becomes apparent why the concept of de minimis is relevant to a defendant's contention that an indisputably copied work has not been infringed. See id. at 13-46 & n.92.2.
Though the concept of de minimis is useful in insulating trivial types of copying from liability (the photocopied cartoon on the refrigerator) and in marking the quantitative threshold for actionable copying, see, e.g., Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255, 267 (5th Cir. 1988) (30 characters out of 50 pages of source code held de minimis), the concept is an inappropriate one to be enlisted in fair use analysis. The third fair use factor concerns a quantitative continuum. Like all the fair use factors, it has no precise threshold below which the factor is accorded decisive significance. If the amount copied is very slight in relation to the work as a whole, the third factor might strongly favor the alleged infringer, but that will not always be the case. See, e.g., Iowa State University Research Foundation, Inc. v. American Broadcasting Companies, Inc., 621 F.2d 57, 59, 61-62 (2d Cir. 1980) (television program's copying of portions of copyrighted film, including an eight second segment). More important, the fair use defense involves a careful examination of many factors, often confronting courts with a perplexing task. If the allegedly infringing work makes such a quantitatively insubstantial use of the copyrighted work as to fall below the threshold required for actionable copying, it makes more sense to reject the claim on that basis and find no infringement, rather than undertake an elaborate fair use analysis in order to uphold a defense.
Defendants contend that the nine instances in their television program in which portions of the poster were visible, individually and in the aggregate, were de minimis, in the sense that the quantity of copying (or at least the quantity of observable copying) was below the threshold of actionable copying. The parties appear to agree on the durational aspects of the copying. The segments of the program in which the poster was visible to any degree lasted between 1.86 and 4.16 seconds. The aggregate duration of all nine segments was 26.75 seconds.
The parties differ, at least in emphasis, as to the observability of what was copied. Our own inspection of a tape of the program reveals that some aspects of observability are not fairly in dispute. In the longest segment, between 4 and 5 seconds, nearly all of the poster, at least 80 percent, is visible. The camera is positioned to the right of about eight members of the audience seated on the left side of the center aisle (facing the stage), and the poster is on the wall immediately to the left of the end of the rows of two or three spectators. The minister stands to the right of the poster, partially obscuring the lower right quadrant, and a member of the audience stands to the left, partially obscuring the lower left quadrant. Roc and his wife stand farther to the left of the poster. The very top edge of the poster is not within the camera's "framing" of the scene. Since the camera focuses precisely on the members of the audience, the poster, hung to their left, is not in perfect focus, but it is so close to them that the poster is plainly observable, even though not in exact focus. 5 An observer can see that what is hung is some form of artwork, depicting a group of African-American adults and children with a pond in the background. The brevity of the segment and the lack of perfect focus preclude identification of the details of the work, but the two-dimensional aspect of the figures and the bold colors are seen in sufficient clarity to suggest a work somewhat in the style of Grandma Moses. Only the painting portion of the poster is observable; the text material and the bordering quilting cannot be discerned.
A helpful analogy in determining whether the purpose and duration of the segments should be regarded as de minimis is the regulation issued by the Librarian of Congress providing for royalties to be paid by public broadcasting entities for the use of published pictorial and visual works. See 37 C.F.R. § 253.8 (1996) (implementing 17 U.S.C. § 118(b)). The Librarian appoints the Register of Copyrights, who serves as the director of the Copyright Office. See 17 U.S.C. § 701. The Librarian's regulation distinguishes between a "featured" and a "background" display, setting a higher royalty rate for the former. Id. § 253.8(b)(1)(i)(A), (B). Obviously the Librarian has concluded that use of a copyrighted visual work even as "background" in a television program normally requires payment of a license fee. Moreover, the Librarian has defined a "featured" display as "a full-screen or substantially full screen display for more than three seconds," id. § 253.8(b)(2), and a "background" display as "any display less than full-screen or substantially full-screen, or full-screen for three seconds or less," id. If defendants' program were to be shown on public television, plaintiff would appear to be entitled to a "background" license fee for a "less than full-screen" display.
From the standpoint of a quantitative assessment of the segments, the principal four-to-five-second segment in which almost all of the poster is clearly visible, albeit in less than perfect focus, reenforced by the briefer segments in which smaller portions are visible, all totaling 26 to 27 seconds, are not de minimis copying.
The District Court upheld the defendants' fair use defense after considering the four non-exclusive factors identified in 17 U.S.C. § 107. It relied primarily on two district court opinions, Amsinck v. Columbia Pictures Industries, Inc., 862 F. Supp. 1044 (S.D.N.Y. 1994), and Mura v. Columbia Broadcasting System, Inc., 245 F. Supp. 587 (S.D.N.Y. 1965). 8 Concerning the first factor–purpose and character of the use — the Court acknowledged that defendants' use was commercial, but thought this circumstance was "undercut" by the fact that the defendants did not use the poster to encourage viewers to watch the ROC episode and did not try to "exploit" Ringgold's work. Ringgold v. Black Entertainment Television, 1996 U.S. Dist. LEXIS 13778, No. 96 Civ. 0290, 1996 WL 535547, *3 (S.D.N.Y. Sept. 19, 1996). The Court acknowledged that the second factor — nature of the copyrighted work — favored Ringgold in view of the imaginative nature of her artwork.
The Court considered the third factor — amount and substantiality of the portion used in relation to the entire work -to favor the defendants because the segments of the program in which the poster is visible are brief, in some only a portion is seen, and in those showing nearly all the poster, it is not in exact focus.
The Court considered the fourth factor — effect of the use upon the potential market for the work — also to favor the defendants. Noting that the television episode cannot be considered a substitute for the poster, Judge Martin predicted "little likelihood" of any adverse impact on poster sales. Id. at *4. In addition, he observed that Ringgold did not claim that her ability to license the poster "has been negatively impacted by the defendants' use in the four years" since the episode was aired. Id. Concluding that defendants' use "had little or no effect on Ringgold's potential market for her work," id., he granted summary judgment in their favor, sustaining their fair use defense.
In reviewing the grant of summary judgment, we note preliminarily that the District Court gave no explicit consideration to whether the defendants' use was within any of the categories that the preamble to section 107 identifies as illustrative of a fair use, or even whether it was similar to such categories. Though the listed categories — criticism, comment, news reporting, teaching, scholarship, and research, see 17 U.S.C. § 107 — have an "'illustrative and not limitative'" function, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 127 L. Ed. 2d 500, 114 S. Ct. 1164 (1994) (quoting 17 U.S.C. § 101), 9 and the four factors should be considered even if a challenged use is not within any of these categories, see Pacific and Southern Co. v. Duncan, 744 F.2d 1490, 1495 (11th Cir. 1984), the illustrative nature of the categories should not be ignored. As the Supreme Court's recent and significant fair use opinion in Campbell observes, "The enquiry concerning the first fair use factor may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like . . . ." Cambell, 510 U.S. at 578-79.
The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supersedes the objects" of the original creation, Folsom v. Marsh, [9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,901)]; accord, Harper & Row, [Publishers, Inc. v. Nation Enterprises], 471 U.S. [539, 562 (1985)] ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message . . . .
In considering whether a visual work has been "supplanted" by its use in a movie or a television program, care must be taken not to draw too close an analogy to copying of written works. When all or a substantial portion of text that contains protectable expression is included in another work, solely to convey the original text to the reader without adding any comment or criticism, the second work may be said to have supplanted the original because a reader of the second work has little reason to buy a copy of the original. Although some books and other writings are profitably reread, their basic market is the one-time reader. By contrast, visual works are created, and sold or licensed, usually for repetitive viewing. Thus, the fact that the episode of ROC does not supplant the need or desire of a television viewer to see and appreciate the poster (or the original) again and again does not mean that the defendants' use is of a "purpose and character" that favors fair use. Indeed, unauthorized displays of a visual work might often increase viewers' desire to see the work again. Nevertheless, where, as here, the purpose of the challenged use is, at a minimum, the same decorative purpose for which the poster is sold, the defendants' use has indeed "superseded the objects" of the original, see Folsom, 9 F. Cas. at 348 (emphasis added), and does not favor fair use. Of course, no one would buy a videotape of the ROC episode as a substitute for the poster, but the challenged use need not supplant the original itself, only, as Justice Story said, the "objects" of the original.
It is not difficult to imagine a television program that uses a copyrighted visual work for a purpose that heavily favors fair use. If a TV news program produced a feature on Faith Ringgold and included camera shots of her story quilts, the case for a fair use defense would be extremely strong. 11 The same would be true of a news feature on the High Museum that included a shot of "Church Picnic." See Italian Book Corp. v. American Broadcasting Cos., 458 F. Supp. 65 (S.D.N.Y. 1978) (fair use defense upheld for TV newscast of street festival that included copyrighted song). 12 However, it must be recognized that visual works are created, in significant part, for their decorative value, and, just as members of the public expect to pay to obtain a painting or a poster to decorate their homes, producers of plays, films, and television programs should generally expect to pay a license fee when they conclude that a particular work of copyrighted art is an appropriate component of the decoration of a set.
2. Second factor. The District Court accepted the plaintiff's contention that the second fair use factor weighs in her favor because of the creative nature of her work.
3. Third Factor. Though we have earlier noted that the de minimis concept is inappropriate for a fair use analysis, since a copying that is de minimis incurs no liability, without the need for an elaborate fair use inquiry, the third fair use factor obliges a court to consider the amount and substantiality of the portion used, whenever that portion crosses the de minimis threshold for actionable copying. The District Court properly considered the brevity of the intervals in which the poster was observable and the fact that in some segments only a portion of the poster and the nearly full view was not in precise focus. 14 Our own viewing of the episode would incline us to weight the third factor less strongly toward the defendants than did Judge Martin, but we are not the fact-finders, and the fact-finding pertinent to each fair use factor, under proper legal standards, is for the District Court, although the ultimate conclusion is a mixed question of law and fact, Harper & Row, 471 U.S. at 560, subject to de novo review, New Era Publications International, ApS, 904 F.2d 152, 155 (2d Cir. 1990).
Even if the third factor favors the defendants, courts considering the fair use defense in the context of visual works copied or displayed in other visual works must be careful not to permit this factor too easily to tip the aggregate fair use assessment in favor of those whom the other three factors do not favor. Otherwise, a defendant who uses a creative work in a way that does not serve any of the purposes for which the fair use defense is normally invoked and that impairs the market for licensing the work will escape liability simply by claiming only a small infringement.
4. Fourth factor. The fourth fair use factor is "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4) (emphasis added). "It requires courts to consider not only the extent of market harm caused by the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in substantially adverse impact on the potential market for the original.'" Campbell, 510 U.S. at 590 (quoting Nimmer § 13.05[A] (at 13-187 in 1997 edition)). Ringgold contends that there is a potential market for licensing her story quilts, Complaint P 17, and stated in an affidavit that in 1995 she earned $ 31,500 from licensing her various artworks and that she is often asked to license her work for films and television. Affidavit of Faith Ringgold PP 13, 14. Specifically, she avers that in 1992 she was asked to license use of the "Church Picnic" poster by the producers of another TV sitcom and declined because of an inadequate price and inadequate artist's credit. Id. P 15.
For all of these reasons, plaintiff's copyright infringement claim must be returned to the District Court to afford an opportunity for further development of the record and a sensitive aggregate assessment by the fact-finder of the fair use factors in light of the applicable legal principles. Upon remand, the Court should give renewed consideration to plaintiff's claim under the New York Artists' Authorship Rights Act. 17 However, because Ringgold has not challenged the dismissal of her preempted unfair competition claim, we affirm the District Court's dismissal of that claim.
The judgment of the District Court is reversed, and the case is remanded.
1 — Ringgold's affidavit calls the work "Church Picnic." Affidavit of Faith Ringgold P 3. Her complaint calls it "Church Picture Quilt." Complaint P 7. Her brief calls it "The Church Picnic Story Quilt." Brief for Appellant at 7. The certificate of copyright registration calls it "Church Picnic Story Quilt." Joint Appendix at A-77. We will use either the title in the artist's own affidavit or "the story quilt," meaning the particular example of the generic form of work.
2 — Presumably, Judge Leval has in mind the posting of a photocopy of the cartoon; photocopying the cartoon, if not insulated by the doctrine of de minimis, or subject to some recognized defense, might violate the copyright proprietor's right to reproduce a copy of the work, see 17 U.S.C. § 106(1), though if the original page of the magazine was posted, the work would not have been "displayed . . . publicly," id. § 106(5).
3 — The Nimmer treatise helpfully refers to exact copying of a portion of a work as "fragmented literal similarity," see Nimmer, § 13.03[A], in contrast to “comprehensive nonliteral similarity,” which refers to an alleged copy that is qualitatively but not exactly similar to a copyrighted work, id. § 13.03[A]. We have endorsed that taxonomy. See Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1372 n.1 (2d Cir. 1993); Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1073 (2d Cir. 1992).
4 — Whether a use of a copyrighted work that surpasses the de minimis threshold of "substantial similarity" for purposes of actionable copying can nevertheless be de minimis for purposes of the third fair use factor is an inquiry in the class of angelic terpsichore on heads of pins. Perhaps that is why the Supreme Court has quoted approvingly Professor Latman's reference to "the partial marriage between the doctrine of fair use and the legal maxim de minimis non curat lex." See Sony Corp. of America v. Universal Studios, Inc., 464 U.S. 417, 451 n.34, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984).
5 — The focus is such that the eight seated members of the audience who are visible and the four people standing along the wall to their left are all in clear focus. The poster is on the wall between two of these four people.
6 — The segments are: (1) a long, wide-angle shot of the audience and a performer on the stage, with the full poster too indistinct for anything of significance to be discerned (between two and three seconds); (2) a full view of almost the entire poster, as observable as the segment described in the text, with the lower right and lower left portions partially obscured as Joey walks up the aisle (2 to 3 seconds); (3) a close-up view of the right half of the poster, with the lower right portion partially obscured by the minister, who is standing next to the poster and on whom the camera focuses (1 to 2 seconds); (4) the segment described in the text (4 to 5 seconds); (5) similar to segment (3) (3 to 4 seconds); (6) a view of the lower right quadrant, partially obscured by a person (3 to 4 seconds); (7) similar to segment (6) (3 to 4 seconds); (8) similar to segment (6) (2 to 3 seconds); (9) similar to segment (6) (1 to 2 seconds).
7 — The District Court implicitly reached this same conclusion since it grounded its ruling on the fair use defense, a defense that would be reached only if the threshold of actionable copying had been crossed.
8 — Whether or not the cases relied on by the District Court were correctly decided, a matter we need not determine, they are distinguishable in important respects. First, both Mura and Amsinck held that televising or filming the copyrighted items (hand puppets and a teddy bear mobile, respectively) did not constitute making a copy. However, Mura was decided before the 1976 Act afforded copyright proprietors a display right, see 17 U.S.C. § 106(5), and Amsinck, though decided under the 1976 Act, did not consider a display right. Second, both decisions discussed the fair use defense as dictum, after finding lack of copying. See Mura, 245 F. Supp. at 590; Amsinck, 862 F. Supp. at 1048 ("defendants might still be entitled to a fair use defense"). Third, at least in Mura, the puppets were used functionally and for a somewhat educational purpose in the Captain Kangaroo television program. By contrast, Ringgold's work was used by defendants for precisely the decorative purpose that was a principal reason why she created it. Finally, both decisions regarded the fourth fair use factor as of primary importance and weighted the factor heavily against the plaintiffs. However, the erstwhile primacy of the fourth factor, see, e.g., Harper & Row, 471 U.S. 539 at 566, 85 L. Ed. 2d 588, 105 S. Ct. 2218, has been considerably modulated by the requirement announced by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 127 L. Ed. 2d 500, 114 S. Ct. 1164 (1994), that "all four factors are to be explored, and the results weighed together, in light of the purposes of copyright," id. at 578, and we have recently recognized the existence of a licensing market as relevant to the fourth factor analysis, see American Geophysical, 60 F.3d at 929-31.
9 — Section 107 states that a fair use for purposes "such as" the six listed categories is not an infringement, and section 101 states that "the terms 'including' and 'such as' are illustrative and not limitative." 17 U.S.C. §§ 101, 107.
10 — Of course, the creation of visual works serves other, often more important, purposes such as illuminating human understanding, providing inspiration, or provoking thought. Ringgold's work, in telling and illustrating an informative story, might well serve these purposes, but it also significantly serves a decorative purpose.
11 — We hesitate to say "conclusive" because even existing technological advances, much less those in the future, create extraordinary possibilities. For example, if the news program included a direct shot of an entire story quilt (whether original or poster reproduction), well lit and in clear focus, a viewer so inclined could tape the newscast at home, scan the tape, and with digital photographic technology, produce a full size copy of the original, thereby securing an attractive "poster"-like wall-hanging without paying the $ 20 poster fee. A news program that recommended this technique would be a weak candidate for fair use.
12 — The Patry treatise on fair use suggests that this case is better grounded, not on fair use, but as an example of "excused innocent infringement." See William F. Patry, The Fair Use Privilege in Copyright Law 484 (2d ed. 1995). Perhaps the author prefers to defeat such claims on the threshold ground that no actionable infringement occurred, rather than subject the news-gathering defendant to the vagaries of the fair use defense.
13 — To the extent that the defendants' good faith is relevant, see Rogers, 960 F.2d at 309, the fact-finder is entitled to consider that someone, likely a member of BET's production staff, cropped the poster before framing it so as to omit the legend identifying the poster with the High Museum. An available inference is that the production staff, if responsible, wanted the viewers to believe that the set was decorated with an original painting, rather than a poster reproduction.
14 — 2. Second factor. The District Court accepted the plaintiff's contention that the second fair use factor weighs in her favor because of the creative nature of her work.
15 — The amicus curiae brief for the Artists Rights Society, Inc. and the Picasso Administration strongly indicates evidence of licensing of artistic works for film and television set decoration, evidence that plaintiff is entitled to present at trial.
16 — Even if the unauthorized use of plaintiff's work in the televised program might increase poster sales, that would not preclude her entitlement to a licensing fee. See DC Comics, 696 F.2d at 28.
1. No person other than the artist or a person acting with the artist's consent shall knowingly display in a place accessible to the public or publish a work of fine art or limited edition multiple of not more than three hundred copies by that artist or a reproduction thereof in an altered, defaced, mutilated or modified form if the work is displayed, published or reproduced as being the work of the artist, or under circumstances under which it would reasonably be regarded as being the work of the artist, and damage to the artist's reputation is reasonably likely to result therefrom . . . .
2.(a) The artist shall retain at all times the right to claim authorship, or, for just and valid reason, to disclaim authorship of such work. The right to claim authorship shall include the right of the artist to have his or her name appear on or in connection with such work as the artist.
4.(a) An artist aggrieved under subdivision one or subdivision two of this section shall have a cause of action for legal and injunctive relief.
N.Y. Arts & Cult. Aff. Law § 14.03 (McKinney Supp. 1995). Ringgold claims that the defendants violated her statutory rights because they did not credit her as the creator of the story quilt. Though the defendants argued on various grounds that the statute does not apply to the facts alleged, the District Judge decided not to exercise supplemental jurisdiction over the claim. By our remand, we express no view as to the merits of this claim or of defendants' defenses.


Crooker, who has a lengthy criminal history, pled guilty to charges of mailing a threatening communication and possession of a toxin without registration. He is serving a sentence of 15 years, having received credit toward that sentence for 2,273 days he spent imprisoned on a prior conviction for transportation of a firearm in interstate commerce by a convicted felon, which was overturned on appeal. Crooker filed suit under the Unjust Conviction and Imprisonment Act, 28 U.S.C. 1495, 2513, seeking damages for the time he spent in prison on overturned conviction, despite the sentencing credit. The Court of Federal Claims awarded him the statutory maximum for the first 1,259 days, $172,465.75. The Federal Circuit reversed: the entirety of Crooker’s “unjust” imprisonment has been applied to a “just” conviction and, as a result, he will spend no more time in prison than he is legally required. Crooker is not entitled to any damages under the Unjust Conviction and Imprisonment Act.
United States Court of Appeals for the Federal Circuit ______________________ MICHAEL ALAN CROOKER, Plaintiff-Cross-Appellant v. UNITED STATES, Defendant-Appellant ______________________ 2015-5056, 2015-5060 ______________________ Appeals from the United States Court of Federal Claims in No. 1:10-cv-00546-EDK, Judge Elaine Kaplan. ______________________ Decided: July 12, 2016 ______________________ JOHN HARDIN YOUNG, Sandler, Reiff, Lamb, Rosenstein & Birkenstock P.C., Washington, DC, argued for plaintiff-cross-appellant. STEVEN MICHAEL MAGER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellant. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J. GILLINGHAM; SOPHIA Y. KIL, Litigation Division, Office of the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives, Washington, DC. ______________________ 2 CROOKER v. US Before NEWMAN, LOURIE, and CHEN, Circuit Judges. PER CURIAM. Michael Alan Crooker is currently serving a fifteenyear prison sentence imposed after he pled guilty to charges of mailing a threatening communication and possession of a toxin without registration. He received credit toward this sentence for 2,273 days he spent imprisoned on a prior conviction for transportation of a firearm in interstate commerce by a convicted felon, a conviction that was overturned on appeal. Mr. Crooker filed suit against the United States government under the Unjust Conviction and Imprisonment Act (i.e., 28 U.S.C. §§ 1495, 2513) and sought monetary damages for the time he spent in prison on the subsequently overturned firearm conviction, despite the sentencing credit he had already received for that same period of imprisonment. The Court of Federal Claims awarded Mr. Crooker the statutory maximum for the first 1,259 of those days, a total of $172,465.75. Each party appeals the court’s judgment. In its appeal, the government argues that Mr. Crooker should receive no money damages in view of the sentencing credit he received. In his cross-appeal, Mr. Crooker argues that he is entitled to damages for the full 2,273 days he spent imprisoned on the overturned firearm conviction. Because the entirety of Mr. Crooker’s “unjust” imprisonment has been applied to a “just” conviction and, as a result, Mr. Crooker will spend no more time in prison than he is legally required, we reverse the judgment below and hold that Mr. Crooker is not entitled to any damages under the Unjust Conviction and Imprisonment Act. BACKGROUND Mr. Crooker has a long criminal history. The portion of Mr. Crooker’s past relevant to this appeal began in April 2004. That month, the U.S. Postal Inspection CROOKER v. US 3 Service received a tip that Mr. Crooker was engaged in the illegal shipment of hazardous chemicals through the mail. As part of its investigation of that tip, the Postal Inspection Service confiscated, x-rayed, and ultimately opened a package Mr. Crooker delivered to his local post office for interstate shipment. The package contained an air rifle and a homemade silencer. Investigators concluded that the silencer could be adapted for use with a firearm. As a result, Mr. Crooker was arrested on June 23, 2004, for transportation of a firearm in interstate commerce by a convicted felon (the Firearm Charge). In conjunction with Mr. Crooker’s arrest, government officials searched Mr. Crooker’s car and home. Officials discovered a suspected explosive device in Mr. Crooker’s car. An explosives expert performed a controlled detonation of the device. At Mr. Crooker’s home, officials discovered components for explosive devices and ingredients for the toxins ricin and abrin. Officials later found weapons, ammunition, and additional evidence of the manufacture and possession of ricin during searches of the homes of Mr. Crooker’s father and brother. The government asked the District Court for the District of Massachusetts that Mr. Crooker remain in detention pending trial on the Firearm Charge. The district court agreed on August 27, 2004. The magistrate judge explained: Although the charge itself, standing alone, would not call for detention, circumstances surrounding the charge, together with Defendant’s own threats and admissions in a series of letters written to this court and others, 1 makes clear that Defend- In one such letter, Mr. Crooker mailed the U.S. Attorney’s office a threat to use ricin against government officials. 1 4 CROOKER v. US ant poses a real threat to the community at large, if not particular individuals as well. . . . As if these facts were not enough to demonstrate dangerousness, Defendant’s own correspondence . . . reveals erratic and threatening behavior on his part. As examples only, Defendant refers to Timothy McVeigh as a “martyr,” makes mention of his own threats against the Government, expresses admiration for Osama Bin Laden’s brilliance, and threatens to continue to purposefully make weapons at the detention facility at which he presently resides. J.A. 127–29. A jury convicted Mr. Crooker on the Firearm Charge on July 11, 2006. Mr. Crooker was subsequently sentenced to 262 months in prison. Mr. Crooker received full credit toward his sentence for the over two years he spent in pre-trial detention. The Court of Appeals for the First Circuit overturned Mr. Crooker’s conviction on June 18, 2010. United States v. Crooker, 608 F.3d 94 (1st Cir. 2010). The court held that federal law prohibits the interstate transfer of a silencer only where the possessor intends to use the silencer with a firearm or where the possessor intends to pass the silencer to someone he knows will use the silencer with a firearm. Id. at 99. The court found no evidence that Mr. Crooker intended that the silencer be used with anything other than an air rifle. Id. The court thus explained that while Mr. Crooker “deliberately skated close to the edge of the law and took his chances with a prosecution that the government was entitled to attempt,” he could not be found guilty of the offense. Id. at 100. Mr. Crooker was released from prison on September 13, 2010. He had been imprisoned for 2,273 days. CROOKER v. US 5 Upon Mr. Crooker’s release from prison, he was immediately arrested on charges contained in an indictment dated December 4, 2007. The nine-count indictment stemmed from the government’s investigation into the toxins discovered in Mr. Crooker’s home and the homes of his family members and the threats Mr. Crooker made to the U.S. Attorney (the Toxin and Threat Charge). Mr. Crooker pled guilty to two of the nine counts included in the indictment, namely, mailing a threatening communication and possession of a toxin without registration. As part of the plea agreement, the government and Mr. Crooker agreed “that the time [Mr. Crooker] spent in federal detention [on the Firearm Charge] should be credited against his sentence in this case.” J.A. 166. Mr. Crooker was sentenced to 180 months in prison. He received a credit of 2,553 days toward this sentence, which consisted largely of the 2,273 days he was imprisoned on the Firearm Charge. On August 12, 2010, Mr. Crooker filed suit against the government in the Court of Federal Claims under the Unjust Conviction and Imprisonment Act. He claimed that he was entitled to damages for the full period he was imprisoned on the Firearm Charge. The parties crossmoved for summary judgment on the issue of Mr. Crooker’s entitlement to damages. On December 18, 2014, the court ruled in favor of Mr. Crooker in part and in favor of the government in part. Crooker v. United States, 119 Fed. Cl. 641, 644 (2014) (CFC Decision). It awarded Mr. Crooker $172,465.75 in damages. Id. at 658. The amount is equal to the statutory maximum for the 1,259 days Mr. Crooker spent in prison from the date of his arrest on the Firearm Charge (i.e., June 23, 2004) until the date he was indicted on the Toxin and Threat Charge (i.e., December 4, 2007). Id. The court held that Mr. Crooker was not entitled to damages beyond the date of the indictment on the Toxin and Threat Charge because, on that date, the indictment—not the conviction on 6 CROOKER v. US the Firearm Charge—became the but-for cause of Mr. Crooker’s imprisonment. Id. at 656–57. The government filed a timely appeal of the court’s judgment and argues that Mr. Crooker should receive no damages in view of the sentencing credit he received for time served on the Firearm Charge. Mr. Crooker filed a timely cross-appeal and argues that he should receive damages for the entire term of his imprisonment on the Firearm Charge. We have jurisdiction under 28 U.S.C. § 1295(a)(3). DISCUSSION We review the Court of Federal Claims’ grant of summary judgment de novo. Yant v. United States, 588 F.3d 1369, 1371 (Fed. Cir. 2009). “Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. “When ruling on a motion for summary judgment, all of the nonmovant’s evidence is to be credited, and all justifiable inferences are to be drawn in the nonmovant’s favor.” Id. The government offers two reasons why Mr. Crooker is not entitled to any damages in this case. First, it argues that Mr. Crooker received full credit toward his lawful sentence on the Toxin and Threat Charge for every day he spent imprisoned on the Firearm Charge; as such, the government argues, Mr. Crooker is not entitled to monetary damages for this same prison term. Second, the government maintains that it had probable cause to detain Mr. Crooker on the Toxin and Threat Charge prior to (or soon after) his arrest on the Firearm Charge and this probable cause served as an alternative (just) justification for his imprisonment. In the alternative, the government argues that the Unjust Conviction and Imprisonment Act does not permit damages for pre-trial detention and, thus, the damages awarded to Mr. Crooker should be reduced to exclude the two-plus years CROOKER v. US 7 Mr. Crooker spent in prison prior to his conviction on the Firearm Charge. Mr. Crooker responds that he is entitled to damages for every day he spent imprisoned on the Firearm Charge under the plain language of the Unjust Conviction and Imprisonment Act. He argues that nothing in that statute—or the statute related to sentencing credits—allows a court to award damages for anything less than the full term of an unjust imprisonment. We begin our analysis with the text of the Unjust Conviction and Imprisonment Act. See Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998) (referring to the statutory text as the “first and foremost ‘tool’” of statutory interpretation). Under 28 U.S.C. § 1495: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned. The measure of damages flows from a separate statutory provision, 28 U.S.C. § 2513(e): The amount of damages awarded shall not exceed $100,000 for each 12-month period of incarceration for any plaintiff who was unjustly sentenced to death and $50,000 for each 12-month period of incarceration for any other plaintiff. At least as it relates to the contours of the “period of incarceration” for which a successful plaintiff may receive damages, the provision is not self-defining. It does not specifically address whether the “period of incarceration” includes pre-trial detention (nor does any other statutory provision we have found). Likewise, no statutory provision specifically addresses whether the “period of incarceration” should exclude those periods credited to another, lawful sentence. 8 CROOKER v. US Each party suggests we turn to the sentencing credit statute, 18 U.S.C. § 3585, to resolve these issues—though the parties differ as to the overall impact of the statute on the case. Section 3585(b) reads as follows: Credit for Prior Custody.—A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences— (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. Mr. Crooker argues that because § 3585(b)(1) links his pre-trial detainment for the Firearm Charge to his unjust conviction, he is likewise entitled to damages for this period of incarceration. Cross-Appellant’s Opening Br. 37 (“By providing a credit against a defendant’s sentence, section 3585 would allow for the compensation of pre-trial detention that was credited to the sentence for an unjust conviction.”). The government does not disagree with Mr. Crooker’s reading of this portion of the statute. Appellant’s Opening Br. 34 (“We have consistently maintained that section 3585 must be applied to this case, and section 3585 provides a clear and simple mechanism for the recovery of pretrial damages for most plaintiffs that would seek compensation (though not Mr. Crooker).”). But the government then goes further and argues that equal effect must be given to § 3585(b)(2). According to the government, the sentencing credit given to Mr. Crooker under § 3585(b)(2) in effect transferred the entirety of CROOKER v. US 9 his time served on the Firearm Charge to the Toxin and Threat Charge. Id. at 14 (“Here, because Mr. Crooker received a full credit for every day he spent incarcerated (pursuant to 18 U.S.C. § 3585(b)) against his toxin/threat conviction, the time he spent imprisoned is connected to the toxin/threat conviction, and not the firearms conviction, and cannot serve as the basis for damages.” (emphasis in original)). Under this interpretation, no portion of Mr. Crooker’s imprisonment remains linked to his “unjust” conviction on the Firearm Charge and no damages award is appropriate. Id. We agree with the parties that § 3585 is applicable to the damages owed a successful plaintiff under the Unjust Conviction and Imprisonment Act. Contra CFC Decision, 119 Fed. Cl. at 655 (“[T]he operation of the sentencing credit statute has no bearing on the extent to which a plaintiff is entitled to recover damages under the unjust conviction statute.”). The Act expressly awards damages to a wrongly convicted individual based on the length of his “period of incarceration” for that unjust conviction. 28 U.S.C. § 2513(e). A sentence provides the link between the “period of incarceration” and the unjust conviction. See, e.g., 18 U.S.C. § 3581(a) (“A defendant who has been found guilty of an offense may be sentenced to a term of imprisonment.”). Therefore, it is wholly appropriate to consult federal sentencing law when determining the proper damages award under the Unjust Conviction and Imprisonment Act. Applying federal sentencing law—specifically § 3585(b)(2)—to this case makes clear that Mr. Crooker is entitled to no damages. The statute required that Mr. Crooker receive full credit toward his sentence on the Toxin and Threat Charge for each day he served for his 10 CROOKER v. US conviction on the Firearm Charge. 2 18 U.S.C. § 3585(b)(2). There is no dispute that Mr. Crooker indeed received this benefit. Pursuant to the sentencing credit, each day Mr. Crooker spent imprisoned on the Firearm Charge transferred to his conviction on the Toxin and Threat Charge. As a result, there remains no “period of incarceration” associated with the Firearm Charge and no damages are appropriate. See Oral Argument Tr. 19:04– 20:24 (counsel for Mr. Crooker conceding that at present no portion of Mr. Crooker’s sentence is associated with his “unjust” conviction on the Firearm Charge). This result is consistent with the intent of the Unjust Conviction and Imprisonment Act. Timex, 157 F.3d at 882 (describing the importance of “thoroughly investigat[ing] whether Congress had an intent on the matter” when interpreting a statute). The Act “has the beneficent purpose of attempting to compensate, as well as money can compensate such an injury, the plaintiff for loss of his liberty through an error on the part of his government.” United States v. Lyons, 726 F. Supp. 2d 1359, 1365 (M.D. Fla. 2010) (emphasis added) (quoting Osborn v. United States, 322 F.2d 835, 839 (5th Cir. 1963)). Mr. Crooker suffered no loss of liberty for his unjust conviction. Each of the 2,273 days he spent imprisoned on the Firearm Charge has been credited to his lawful sentence for the Toxin and Threat Charge. He will not spend a single day in prison longer than he is lawfully required. That the precise dates of Mr. Crooker’s incarceration may have Mr. Crooker confirmed he would receive the sentencing credit under § 3585 as part of his plea agreement on the Toxin and Threat Charge. J.A. 166 (“The parties agree, pursuant to 18 U.S.C. § 3585(b)(2), that the time Defendant spent in federal detention [for his conviction on the Firearm Charge] should be credited against his sentence in this case.”). 2 CROOKER v. US 11 occurred sooner in time than they otherwise would have does not entitle him to monetary damages under the statute. Our decision to deny Mr. Crooker monetary damages in this case is likewise consistent with traditional rules against double recovery. “[I]t goes without saying that the courts can and should preclude double recovery by an individual.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (internal quotation marks and citation omitted). Here, Mr. Crooker had the entirety of his imprisonment on the Firearm Charge credited to his sentence on the Toxin and Threat Charge. He thus already received compensation for his otherwise “unjust” imprisonment. He is not entitled to monetary damages on top of this compensation. For these reasons, we reject Mr. Crooker’s argument that “[s]entence credits provided under 18 U.S.C. § 3585(b)(2) have nothing to do with compensation to redress a prior wrongful imprisonment.” CrossAppellant’s Opening Br. 25. We also note that Mr. Crooker undercuts his own argument by simultaneously advocating for application of 18 U.S.C. § 3585(b)(1) to award him damages for his pre-trial detention. Id. at 37 (“By providing a credit against a defendant’s sentence, section 3585 would allow for the compensation of pre-trial detention that was credited to the sentence for an unjust conviction.”). There is no logical reason to apply the consecutive provisions of § 3585(b) in such an inconsistent manner. Because we find that there is no “period of incarceration” attributable to Mr. Crooker’s “unjust” conviction on the Firearm Charge, we hold that Mr. Crooker is entitled to no damages under the Unjust Conviction and Imprisonment Act. As such, we need not address the parties’ additional arguments regarding whether certain portions 12 CROOKER v. US of Mr. Crooker’s imprisonment are compensable. Mr. Crooker’s cross-appeal is therefore moot. CONCLUSION For the foregoing reasons, we reverse the Court of Federal Claims’ judgment in favor of Mr. Crooker and hold that Mr. Crooker is not entitled to any damages under the Unjust Conviction and Imprisonment Act. REVERSED COSTS No costs.


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Andrew A. Bassak is a San Francisco-based business trial lawyer and litigation partner. A seasoned legal strategist with more than 25 years of experience, Andrew’s business trial practice focuses on efficient, results-oriented resolution of multifaceted commercial disputes in federal and state courts, and in arbitration, where he often litigates or negotiates workouts of failed transactions across a broad spectrum of client business sectors, including international cross-border disputes. Andrew’s clients are leaders in their respective industries, including energy, real estate, water, financial services, and both old-world and new-world technology companies. He is highly skilled in the resolution of complex disputes on behalf of corporate and real estate owners, developers, equity investors, and financiers. Andrew regularly resolves concerns of state and federal agencies for his clients, including assisting them in navigating the resolution of environmental liabilities.
Andrew is a past president of the Board of Governors of the Association of Business Trial Lawyers (Northern California Chapter) and currently serves as chair of the Board of Governors of California Trout, a nonprofit focused on solving complex resource issues while balancing the needs of wild fish and people. Andrew has been honored with California Lawyer magazine’s California Lawyer of the Year (CLAY) Award and the National Law Journal’s Pro Bono Award, is rated AV-Preeminent by Martindale-Hubble, and has been repeatedly selected as a California Super Lawyer.
Lead trial counsel for the private equity owners of a 400 MW power plant in a years-long contract and regulatory dispute over who will bear hundreds of millions of dollars in costs imposed by California’s landmark greenhouse gas legislation, AB 32. The litigation included a five-day arbitration before a panel of three arbitrators, subsequent trial and appellate court litigation in which the courts twice vacated adverse decisions, and advocacy before the California Air Resources Board and California Public Utilities Commission. See Panoche Energy Center, LLC v. Pacific Gas & Electric Co., 1 Cal. App. 5th 68 (2016). Ultimately the matter was resolved favorably before the California Air Resources Control Board.
Acted as lead U.S. counsel for Kuwait Finance House (Bahrain), B.S.C., and its senior executives in a global dispute involving interrelated legal proceedings in Bahrain, New Zealand and California. Obtained the dismissal of a $62 million lender liability lawsuit filed in U.S. District Court alleging breach of fiduciary duties and concealment claims relating to the plaintiff’s entering into a Sharia law-compliant commercial financing transaction, the enforcement of which in Bahrain resulted in a $3.4 million judgment issued by the Bahrain Chamber for Dispute Resolution, a commercial tribunal established by decree of the King of Bahrain in partnership with the American Arbitration Association. Employing an often-misunderstood aspect of California law, obtained a significant attorneys’ fee award in favor of Manatt’s defendant clients that was upheld on appeal in the Ninth Circuit (Teece v. Kuwait Finance House (Bahrain) B.S.C., 667 Fed. Appx. 931 (2017)).
Teece v. Kuwait Finance House (Bahrain) B.S.C., 667 Fed.Appx. 931 (9th Cir. 2016).
Panoche Energy Center, LLC v. Pacific Gas & Electric Co., 1 Cal.App.5th 68 (2016).
Fleur du Lac Estates Assn. v. Mansouri, 205 Cal.App.4th 249 (2012).
Mansouri v. Superior Court (Fleur du Lac Estates Assn.), 181 Cal.App.4th 633 (2010).
Markstein v. Countryside I, L.L.C., 77 P.3d 389; 2003 WY 122 (Sup. Ct. WY 2003).
Speaker, “Bad Lawyers in the Movies,” Manatt CLE Marathon, Mr. C Beverly Hills Hotel, November 8, 2018.
Panelist, “From Climate Change, Condemnations, and Fracking to Inspiration, Optimism, and Improvement,” ALFA International Client Seminar, March 3, 2018.
Speaker, “What the Frac?! Recent Decisions in Lawsuits Challenging Fracking Bans,” ALFA International Oil & Gas Conference, Oct. 24, 2017.
Moderator, “Show Me the Money! Modern Commercial Litigation Finance,” ALFA International Client Seminar, March 4, 2017.
Panelist, “Investigations: Managing the Process and the Resolution,” Association of Corporate Counsel (ACC) 2016 Annual Meeting, Oct. 18, 2016.
Moderator, “Hot Topics on Cold Water—Wine Industry Water Issues,” Napa Valley Wine Industry Financial Symposium, Sept. 26, 2016.
Moderator, “Managing E-Discovery in Complex Cases,” ALFA International Client Seminar, March 5, 2011.
Speaker, “Concerned McCloud Citizens v. McCloud Community Services District, et al., and What Followed—Lessons to Be Learned,” Bay Area City Attorneys’ Luncheon, June 24, 2010.
Panelist, “Cross-Border Collections: You Won . . . Now What?” Association of Business Trial Lawyers’ Annual Seminar, Oct. 3, 2009.
Panelist, “Enforcing U.S. Judgments in the U.K. and Other Countries,” ALFA International Client Seminar, March 8, 2008.
Co-author, “From Climate Change, Condemnations, and Fracking to Inspiration, Optimism, and Improvement,” ALFA International Publications, March 4, 2018.
Author, “Show Me the Money! A Survey of Issues Raised by Modern Third Party Litigation Funding,” ALFA International Publications, March 4, 2017.
Quoted, “Legal Challenge to Downtown Berkeley Mixed-Use High-Rise Struck Down,” The Registry, Oct. 28, 2016.
Quoted, “Judge Rules in CEQA Infill Case,” GlobeSt, Oct. 26, 2016.
Author, “California Interference Torts for ‘M&A Collateral Damage’ Cases,” ABTL Report, Spring 2010.
Author, “Going Fishin’: Can plaintiffs discover the identity of potential class members before class is certified?” Feb. 15, 2007.

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