Artist Jason Koza recently filed a lawsuit against clan member RZA, Tarik Azzougarh, (a rapper/manager/ producer affiliated with the group), and much be-loathed former pharma CEO Martin Shkreli, claiming that portraits which he illustrated were included with the one-off album/book which the Wu-Tang Clan recently released without Koza's authorization, however the suit's validity seems questionable.
Guest Post by Tim Cushing on Techdirt
In the continually developing saga that is the Wu-Tang Clan's unexpected entanglement with the embodiment of everything that's wrong with the pharmaceutical industry, it is now apparently time for the bogus lawsuits to begin.
Artist Jason Koza, a Wu-Tang Clan fan, is suing Tarik Azzougarh, a rapper, producer and manager "associated" with the group, along with one of its members (RZA) and pharma supervillain Martin Shkreli, last seen pleading the smirk in front of a Congressional hearing.
Koza's story is as follows, in his own words, from his own filing [heavily edited for clarity and length]. (h/t The Hollywood Reader)
Mr. Koza has long admired the music of the Wu-Tang Clan, and in late 2013 and early 2014, he rendered original portraits of nine members who recorded the group’s first album.
The nine portraits are titled: “Ghostface Killa-Koza,” “GZA-Koza,” “Ol’ Dirty Bastard-Koza,” “Method Man-Koza,” “Masta Killa-Koza,” “Inspecta Deck-Koza,” “U- God-Koza,” “RZA-Koza,” “Raekwon-Koza” (hereinafter the “Wu-Tang Clan Portraits”)...
In or around late 2013 or early 2014, Mr. Koza saw a solicitation on the WuDisciples.blogspot.com website stating as follows: “Every Thursday we will be posting up pics of Wu-Tang artwork from fans, artists and aliens. If you have artwork you would like to share, please email us at: WuArtTats@gmail.com.”
Mr. Koza submitted digital images of his nine Wu-Tang Clan Portraits to the WuArtTats@gmail.com email address and the works were posted on the WuDisciples.blogspot.com website.
The WuDisciples.blogspot.com did not display any language or disclaimer granting the website a license for submitted works.
Mr. Koza did not grant an express license to the WuDisciples.blogspot.com for the use of his Wu-Tang Clan Portraits, although he intended that they be used for the limited purpose of public display on that website.
Mr. Koza did not authorize the use of his Wu-Tang Clan Portraits outside of the implied license he granted for their display on the WuDisciples.blogspot.com.
Upon information and belief, prior to 2014, Defendants Diggs and Azzougarh began work on a new Wu-Tang Clan album.
Upon information and belief, in 2015, Mr. Diggs and Mr. Azzougarh completed production of a new Wu-Tang Clan album, which had been recorded secretly over the course of several years, titled “Once Upon a Time in Shaolin.”
Upon information and belief, the album was sold with a leather-bound book containing, inter alia, unauthorized copies of all nine of Mr. Koza’s Wu-Tang Clan Portraits.
Upon information and belief, Mr. Diggs and Mr. Azzougarh made, or caused to be made, the unauthorized copies of Mr. Koza’s Wu-Tang Clan Portraits that were included in the leather-bound book.
Upon information and belief, in 2014 or 2015, Mr. Diggs and Mr. Azzougarh engaged New York-based online auction house Paddle8 as their agent to sell and/or distribute the “Once Upon a Time in Shaolin” album, including the leather-bound book that contains the infringing copies of Mr. Koza’s artwork.
This $2 million album, along with the book of artwork allegedly containing Koza's portraits, is now in former Turing Pharmaceutical head Martin Shkreli's possession.
Koza may have a case against the unauthorized use of his work in the book sold to Shkreli. Nothing on the Wu-Tang fan site indicates Koza would have handed over his rights to his artwork by having it posted there. If those responsible for putting the book together used his work, then he may have a fairly solid infringement case.
However, Koza did not register his artwork with the US Copyright Office until February 1st of this year, which is well past the point in time the infringement allegedly occurred. (The album was sold in 2015 and the book of artwork was compiled before the sale.) This may cut him out of the statutory damages he's seeking as these fees are only retroactive if the registration occurs within 90 days of publication. In his own recounting of the events, Koza indicates the first publication (at the Wu-Tang fansite) occurred sometime prior to April 8, 2014 -- the point at which he was contacted by Azzougarh about the "one copy album" he and RZA were putting together. Koza's copyright filings occurred nearly two years later.
Despite Martin Shkreli doing nothing more than paying an exorbitant amount for an album packaged with a book of artwork he likely assumed was properly licensed, Koza wants to nail him for infringement as well.
Upon information and belief, the album was unique in that only one copy was produced and Mr. Shkreli is contractually prohibited from distributing further copies commercially for 88 years following the sale.
On January 29, 2016, Mr. Koza saw an article published by Vice.com that included photographs of the leather-bound book that was included with the album.
The pictures in the article revealed that at least three of Mr. Koza’s Wu- Tang Clan Portraits were reproduced in the book: “Raekwon-Koza,” “Ol’ Dirty Bastard-Koza,” and “Inspecta Deck-Koza.”
Mr. Koza never gave his permission, express or implied, for any third party to copy, distribute, or publicly display copies of his works, other than his submission to the WuDisciples.blogspot.com website for the limited purpose of displaying the works thereon.
The thing about purchased items is that "third parties" are mostly free to do what they want with their purchased goods, including displaying artwork they purchased. That this was "displayed" in an article at Vice.com does nothing to implicate Shkreli or Vice. Shkreli has the Right of First Sale and Vice.com has fair use -- even if Vice selected which pictures would be published. Koza's legal arguments in relation to this supposed infringement are pretty much nonsensical.
Mr. Shkreli has infringed Mr. Koza’s exclusive right of public display by permitting at least three of the nine Wu-Tang Clan Portraits to be displayed to the public in a news article without Mr. Koza’s permission or license.
Including "in a news article" in his claim pretty much guarantees Vice.com's fair use defense will work, if a judge even lets the case get as far as requiring a response from the website. As for Shkreli, he's done nothing wrong, which is probably the first time that's been said about him since his ascension into the public eye.
Koza even tries to claim his truncated email exchange with Azzougarh -- combined with the fansite's nonexistent statement on who retains what rights to submitted artwork -- somehow coheres into a contract the defendants have violated.
The facts alleged regarding Mr. Koza’s submission of the nine Wu-Tang Clan Portraits to the WuDisciples.blogspot.com website and the subsequent communications between Mr. Koza and Mr. Azzougarh give rise to an implied-in-fact contract for a license from Mr. Koza for use the nine Wu-Tang Clan Portraits in the album in exchange for payment from Defendants.
Once a judge reviews this mess of a lawsuit, it's very likely most of the defendants will be dismissed. On the sort of bright side, if the lawsuit makes it far enough, the exclusive book owned by Shkreli may be entered into evidence, giving Wu-Tang fans a chance to see at least nine pages of the multimillion dollar book.
But as far as legal assertions go, Koza's are at least as shaky as anything delivered to date by Wu-Tang members unhappy with their album being in the possession of the Most Hated Man in America (Corporate Division). But at least when one of them does it, it's far more entertaining. Calling Shkreli "the man with the twelve-year-old body" beats "somebody owes me money... probably" any day of the week.
Update: We mistakenly identified Vice Magazine as a defendant in the law suit in our original headline. Vice has not been named as a defendant.