Wilson v. New Palace Casino, LLC

Opinion (Ozerden): Marty Wilson created the painting titled “Blue Water Blitz.” New Palace Casino bought the original painting. While the facts concerning a purported licensing agreement were in dispute, Wilson claimed that the wahoo fish on New Palace’s merchandise infringed his depiction of a wahoo fish in “Blue Water Blitz” under the Visual Artists Rights Act (VARA). However, Wilson admitted he used his wahoo fish in many other works, some in digital format on the Internet; and Wilson believed New Palace copied the digital image from the Internet. On these facts, the Court found that no “work of visual art” was copied, because the possible source images that could have been copied were excluded from the subcategory of “work of visual art.” The Court added that had a “work of visual art” been copied, there still would not have been a violation because New Palace’s alleged uses of the image “involved merchandising or qualified as advertising or promotional materials.” The Court DISMISSED Wilson’s claims for attribution and integrity.