In 1984, Jesus Muhammad\u2010Ali painted a portrait of the leader of the Nation of Islam, Louis Farrakhan. In 2013, Ali sued The Final Call, a newspaper that describes itself as the \u201cpropagation arm of the Nation of Islam,\u201d for copyright infringement. The Final Call, it turned out, admittedly had sold over a hundred copies of Ali\u2019s Farrakhan portrait. Ali nonetheless lost his case after a bench trial. He appealed, arguing that the district court misstated the elements of a prima facie copyright infringement claim and erroneously shifted to him the burden of proving that the copies were unauthorized.<\/p>\n
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Jesus Muhammad\u2010Ali is Elijah Muhammad\u2019s grandson and a professional portrait painter. In 1984, Ali painted a portrait of Louis Farrakhan, then \u2013 and still \u2013 the leader of the Nation of Islam. On March 14, 1986, Ali registered and recorded a copyright in the painting, which is entitled \u201cMinister Farrakhan.\u201d<\/p>\n
In 2013, Ali sued The Final Call, alleging that it had infringed on his copyrights in his depictions of Louis Farrakhan, Elijah Muhammad, and Khadijah Farrakhan, Louis Farrakhan\u2019s wife. Ali later dropped the claims related to his portraits of Elijah Muhammad and Khadijah Farrakhan, but he continued to press his claim that the Final Call had distributed unauthorized copies of the \u201cMinister Farrakhan\u201d portrait.<\/p>\n
In its answer, The Final Call admitted that it had sold 115 copies of the lithograph between 2010 and 2013. It maintained, however, that Ali had authorized it to produce and sell the copies. The copies it sold were titled \u201cAllah\u2019s Star of Guidance,\u201d and featured a yellow border and text below the image reading: \u201cAllah\u2019s Star of Guidance, The Honorable Elijah Muhammad and His Servant Minister Louis Farrakhan.\u201d<\/p>\n
Ali moved for summary judgment, asserting that he had proved a prima facie case of copyright infringement and that The Final Call had raised no defences. The district court denied Ali\u2019s motion for summary judgment, holding that \u201cThe Final Call has adduced evidence that would allow a reasonable factfinder to find that Farrakhan\u2019s commission of \u2018Minister Farrakhan Painting\u2019 included lithographic copies, and therefore that Ali authorized the creation and sale of the copies.\u201d<\/p>\n
The Final Call presented no affirmative defenses in the district court. Although it originally asserted implied license and laches defenses, it waived them at a pretrial conference. There is no evidence of either a written or oral license in this case. Finally, there is no evidence that Ali intended that The Final Call copy and distribute his work. Even if Ali did grant such permission to Farrakhan \u2013 and there is no evidence that he did \u2013 nothing indicates that he granted it to The Final Call, or that Farrakhan attempted to transfer a license to The Final Call.<\/p>\n
There is no evidence that Ali had any understanding with Farrakhan or The Final Call regarding the portrait at issue in this case. Even if Ali\u2019s commission gave Farrakhan a right to make lithographs of the portrait, there is no evidence that Ali gave permission to Farrakhan to have The Final Call distribute them \u2013 or even that Farrakhan himself gave that permission. In addition, even if Farrakhan authorized a 1985\u20131986 distribution with Ali\u2019s permission, there is no evidence that Farrakhan or Ali gave permission to The Final Call for the 2010\u20132013 distribution.<\/p>\n