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Art suit settles three days before retrial

A contentious three-year copyright infringement battle ended with a settlement just days before the case was set for a new trial on damages.

A Baltimore jury had awarded artist Douglas Hofmann more than $200,000 for copyright infringement of a photo he had taken that another artist allegedly copied in a painting. On appeal, the 4th U.S. Circuit Court of Appeals found the evidence was insufficient to support the damages.

Terms of the Oct. 16 settlement were confidential, according to one of Hofmann’s attorneys, Kenneth Mark Berman of Berman, Sobin, Gross, Feldman & Darby LLP in Gaithersburg.

In December 2007, Hofmann and Courtney Jenkins sued the estate of John O’Brien, accusing him of stealing Hofmann’s copyrighted photo and creating a painting out of it called “The Dance Studio.”

Hofmann’s photo, “Mary’s Class,” was of a group of ballerinas — including Jenkins, who was 13 at the time of the photo.

Hofmann and John O’Brien each had a business relationship in the 1990s with a Baltimore-area art dealer, Aaron Young. The painting of “Mary’s Class” was discovered on John O’Brien’s website in 2006, prompting Hofmann, Jenkins and two of Young’s business entities to sue O’Brien’s estate for copyright infringement and invasion of Jenkins’ privacy.

Martha O’Brien, the painter’s widow, told The Daily Record in 2008 that she believed Young gave the photo to her husband, who died in 2004 of a malignant melanoma, because he never would have risked his career by stealing another artist’s work. She said her husband had given her the painting as a gift.

A Baltimore jury awarded Hofmann $201,550 in November 2008 for copyright infringement. The jury also found in favor of Jenkins, but awarded her no damages.

Martha O’Brien appealed to the 4th Circuit, which found in an unpublished February 2010 opinion that Hofmann had proved copyright infringement but “failed to present any reliable evidence upon which an award of economic damages could be permissibly based.”

The 4th Circuit remanded the case to the U.S. District Court in Baltimore for a new trial on damages, which was set to begin Oct. 18.