Robert Indiana publisher fights bid to seize works

Michael McKenzie is fighting Morgan Art Foundation’s bid to seize Robert Indiana works and a so-called “ghostwriter” signature machine after a Manhattan jury awarded Morgan $102.2 million in its long-running lawsuit over works tied to the late Pop artist.

Morgan is a longtime Indiana rights holder that said it controls rights to some of the artist’s best-known works. McKenzie is an art publisher who worked with Indiana later in the artist’s life through his company, American Image Art.

The lawsuit arose from competing claims over Indiana’s late-career market. Morgan filed the case on May 18, 2018, one day before Indiana died, naming Indiana, McKenzie, American Image Art, and Indiana’s caretaker, Jamie Thomas, as defendants.

After Indiana’s death, James W. Brannan, the personal representative of Indiana’s estate, was substituted in his place.

Morgan accused McKenzie of making and selling Indiana works that violated rights Morgan said it held under earlier agreements with the artist. McKenzie has disputed the allegations and said he had his own business relationship with Indiana.

Indiana’s estate also challenged Morgan during the litigation. A June 2021 order dismissed the related estate action, Morgan’s claims against Brannan and Thomas, and Brannan’s counterclaims against Morgan and related parties, while leaving Morgan’s claims against McKenzie in place.

At trial, the jury sided with Morgan and awarded $102.2 million, including $89 million for interference with Morgan’s business rights, $2 million for copyright infringement, $6.2 million for trademark infringement, and $5 million in punitive damages.

Jurors were asked to decide Morgan’s copyright and trademark claims and damages on its contract-interference claim.

The court had already found McKenzie liable on the contract-interference claim as a sanction for discovery violations, while telling jurors the finding was a penalty and not a ruling on the evidence. Jurors were left to decide damages on that claim.

The copyright claim involved The Ninth American Dream and USA FUN, according to the court’s instructions. Morgan’s trademark claim involved works using the LOVE mark.

After the verdict, Morgan asked U.S. District Judge Jennifer L. Rochon for restrictions on McKenzie’s use of disputed works.

McKenzie said Morgan is seeking to bar him from creating, marketing, or selling disputed works and to force him to turn over works Morgan said were made in violation of its rights, along with the “ghostwriter” machine.

Morgan filed its request for post-trial relief on May 7. McKenzie opposed it on May 20, arguing that Morgan is now seeking remedies that go beyond what jurors decided at trial.

“Despite a jury verdict awarding damages exceeding any estimate,” McKenzie said, Morgan “now believes it is an appropriate time” to seek an order with “additional concessions and remedies not addressed at trial, nor foreseen by the jury.”

McKenzie said Morgan’s request should be denied or at least narrowed because the case Morgan presented at trial centered on money.

Morgan presented evidence about sales and prices for Indiana works, including claims that sales fell from $13.75 million in 2011 to $9.226 million in 2012, then to $4.2 million in 2018. McKenzie said Morgan used those figures to support its damages case.

“Such monetary harm is exactly the type that can be rectified by financial compensation, not by a permanent injunction,” McKenzie said.

McKenzie also said Morgan waited too long to seek the order. He said Morgan knew about the alleged unauthorized works years before suing in 2018, then waited until after the 2026 trial to seek permanent restrictions.

“Plaintiff sat idly and delayed any injunction request until after Plaintiff has all but been made whole,” McKenzie said.

The “ghostwriter” machine at the forefront of the post-trial dispute was described by McKenzie as a machine “largely used to create replica signatures." But he said it should not be seized because it was a multi-use tool, adding that seizing it would have “little to no impact on any future harms.”

McKenzie also objected to Morgan’s request to "impound and seize thousands of works," saying Morgan had not clearly identified which works were covered by the verdict. The request “sweeps far too broadly and far beyond what was fairly litigated and adjudicated,” McKenzie said.

The judge has not yet ruled on the request. McKenzie is asking the court to deny Morgan’s request entirely. If the judge grants any relief to Morgan, McKenzie wants it limited to specific works and conduct addressed at trial.

“For the foregoing reasons, Defendant respectfully requests that this Court deny Plaintiff’s request for a permanent injunction in its entirety, or in the alternative, limit its scope to what is fair and equitable,” McKenzie said.

Follow along with other lawsuits at Urgent Matter's art lawsuit tracker.