BOSTON — A federal judged ruled Monday on the motion for summary judgment concerning the 11 counts alleged by the landlord in the “Martha’s Vineyard Background Art Case,” accusing porn producers of using a rental property to shoot content without permission or clearance for on-camera artwork.
The landlord, Leah Bassett — a sometime artist whose paintings decorated her Martha’s Vineyard rental property — had named now-retired producer/director Nica Noelle, her former collaborator Joshua Darling, the distributor of their content, Mile High Media, and others as defendants, accusing them in a civil lawsuit of a laundry list of violations against herself (fraud, emotional distress), her property and her copyrighted art.
In a clear victory for Mile High — the main target of the lawsuit in terms of monetary compensation — U.S. District Judge for Massachusetts Patti B. Saris threw out the most egregious charges and only allowed a few to move forward, putting the burden on Bassett and her lawyer to catalog how each of her works appeared in 14 Mile High-distributed productions, and giving them 45 days to do so.
Judge Saris granted Mile High and the other co-defendants their motion to dismiss counts I (Breach of Contract), II (Trespass), III (Negligence), VI (Civil Fraud), X (Civil RICO) and XI (Defamation).
Bassett was allowed to continue the lawsuit on counts IV (Chapter 93A), V (Civil Conspiracy), VII (Infliction of Emotional and Mental Distress) and VIII (Interference with Contractual Relations).
Porn Background Art Catalog
The court deferred ruling “on both parties’ motions as to the copyright claim (Count IX) pending Bassett’s submission, within 45 days, of a spreadsheet or other analysis that describes exactly how long each copyrighted work appears in each film, with accompanying screenshots for each period of time. The stay on damages discovery remains in place until the Court rules on the copyright claim.”
The reason for the cataloguing is to rule on the defendants’ contention that the appearance of Bassett’s art — much of it looking like stencil art similar to the copyright-free art used in many adult productions — was too minimal to fall within the Copyright Act’s protection.
The ruling states that “according to Defendants, Bassett’s home and household items appear in scenes from nine films that were distributed by Mile High, as well as still images accompanying five other films. Scenes showing Bassett’s home also appear in two compilation titles that were distributed by Mile High. Bassett asserts that she has found 21 films featuring scenes or stills from her house. In addition, cast members took promotional photos at the property that they posted on their own social media accounts.”
Bassett only copyrighted her art after the scenes had been shot, and a year-and-a-half after she found out about it. She acknowledged on record, the judge’s opinion states, that she registered the copyrights because she “knew that there was a possibility [she] would have to file a lawsuit.”
Mile High’s biggest victory was the dismissal of the counts concerning statutory damage, which could have meant for the company, if found guilty, an even greater expense than the mounting legal fees on this protracted case.
The "Facts" of the Case
As XBIZ has reported, the lawsuit has now entered its third year, after Bassett sued in March 2018 alleging one of her Martha’s Vineyard tenants had allowed a Mile High crew to shoot in her property. The lawsuit claims that this constituted “unauthorized commercial use of the property” and also copyright infringement over artwork Bassett created, which can be seen in the background of the scenes.
Judge Saris’ opinion included an account of “facts” about the case that appear to originate from the affidavit deposition of one of the defendants, a photographer/producer who worked briefly in the adult industry under the name Joshua Darling.
Darling is believed to have left the U.S. at some point during the trial and it is unclear whether he is cooperating with Bassett’s legal counsel as part of a deal.
According to the “facts” section of Saris’ opinion, Darling signed a lease with Bassett to rent her Martha’s Vineyard property from October 4, 2014 to May 15, 2015, to use it “as a personal residence, excluding all other uses” and only by Darling and his family. The lease did not allow for subletting the property without prior consent.
Bassett was planning to be out of the country for the term of the lease, but she arranged for family members who lived nearby to check on the property.
The judge’s opinion states that Darling was working as stills photographer and cameraman for Nica Noelle, who was producing films for distribution by Mile High. According to the ruling, Darling “initially rented Bassett’s house for his own residential purposes, believing that filming would take place at other locations on the island,” but Noelle “soon pressured him to use Bassett’s residence as both a filming location and as housing for cast and crew. [Noelle] promised to cover the property’s rental costs and threatened to fire [Darling] if he did not agree.”
The defendants have disputed this account of the events, which conform closely to Darling’s testimony.
According to Bassett, Darling sent an email breaking his lease on March 15, 2015, two months before it was due to expire, claiming he had been “let go from [his] job” and would be “completely unable to finish [his] payments on [the] lease from March to the end (May).”
The following day, according to Bassett, her mother “went to check on the property,” where she found Noelle and other people. Bassett alleges Noelle spoke to her by phone “offered to take over the lease for the remaining months.”
The landlord claims she only learned about the production of adult movies in her property on March 26, 2015, when “while in discussions with [Noelle] about continuing the lease, Bassett received an email from an address she did not recognize. She searched the name online and discovered [Noelle’s] pseudonym, as well as her affiliation with Mile High. To her distress, Bassett saw her own house in online promotional materials.”
Although Bassett was able to re-rent the property immediately after she says she refused an offer from Noelle and ordered her to vacate the premises, she alleges the lawsuit itself caused damage to the house’s reputation and loss of rental income.
Bassett also alleges a severe case of emotional distress stemming from the discovery that porn had been shot in her property including, “anxiety, inability to sleep, [and] lack of concentration” in the wake of these events.
She also claims she became “paranoid” and suffered from “sadness and anxiety [that was] deep, dark and seemingly endless.”
Bassett’s initial lawsuit listed $15,000 in property damage, lost rent and other costs but later she demanded $3 million in damages from Mile High.
After Monday’s favorable decision throwing out the statutory damages, Bassett might be able to collect a much smaller “reasonable fair market licensing fee” if Mile High and the other defendants are found responsible for a violation of her copyrights.
To read Judge Saris' ruling, click here.
