## Facts

- Cady Noland created a 1990 wooden sculpture, *Log Cabin Façade*, later purchased by Wilhelm Schürmann.
- Noland authorized staining and outdoor display of the sculpture; it was displayed outdoors for years and deteriorated.
- In 2010, at Schürmann’s direction and with KOW’s involvement, a conservator replaced the rotted wooden components with newly fabricated logs made by the original manufacturer and based on Noland’s specifications, though differing in subtle ways.
- Noland later disavowed the refurbished version, asserting it was not her work.
- Schürmann, KOW, Galerie Michael Janssen, and Michael Janssen attempted to resell the sculpture, including to a U.S. buyer for $1.4 million under a contract with New York choice-of-law and delivery to Ohio.
- To facilitate resale, defendants sent photographs and plans depicting the sculpture to potential U.S. buyers.
- Noland sued alleging, among other claims, (i) copyright infringement based on the refurbishment and marketing materials, and (ii) violations of moral rights under the Visual Artists Rights Act (VARA).

## Issues

1. Whether alleged infringement and VARA violations were actionable under U.S. law when the refurbishment occurred abroad and domestic conduct consisted mainly of resale-related activities.
2. Whether distributing photographs and plans of the sculpture to facilitate resale to U.S. buyers constituted fair use under 17 U.S.C. § 107.
3. Whether the complaint plausibly alleged a VARA violation (including integrity-based harm) tied to a qualifying domestic act.

## Decision

- The court granted defendants’ Rule 12(b)(6) motion and dismissed the Third Amended Complaint in full.
- The court assumed, without deciding, that the sculpture was copyright-protected and analyzed the alleged infringing acts on the merits.
- The distribution of photographs and plans to facilitate resale was held to be fair use.
- The VARA claims were dismissed because the challenged “modification” occurred in Germany and the alleged U.S.-connected conduct did not plausibly constitute a VARA-covered modification or other actionable domestic violation.
- The court directed closure of the case.

## Legal Principles

- The Copyright Act (including VARA) generally does not reach foreign acts; a plaintiff must plausibly allege actionable domestic conduct to state a claim.
- Fair use may cover reproductions of a work used to provide information to legitimate purchasers in connection with resale; the “resale facilitation” purpose can be treated as transformative despite commercial context.
- In resale marketing, depiction of the entire work may be reasonable and carry reduced weight against fair use where a buyer would expect to see the whole work.
- Market-effect analysis favors fair use where marketing images do not substitute for the work and do not harm (and may help) the market for the original.
- VARA protects against certain intentional distortions, mutilations, or modifications prejudicial to honor or reputation, but claims must be tied to conduct within VARA’s territorial reach and statutory scope.

## Conclusion

The court dismissed the artist’s copyright and VARA claims, holding that resale marketing images and plans constituted fair use and that foreign refurbishment, without a qualifying domestic act amounting to a statutory violation, could not support relief under U.S. copyright law or VARA.


Noland v. Janssen, 2020 WL 2836464 (S.D.N.Y. 2020)