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The attorney for a group of self-proclaimed “art-terrorists” has been disqualified from a legal battle that has redirected the artists’ warfare against one another. Guerrilla Girls Inc. v. Kaz, 03 Civ. 4619, which is making its way through the U.S. District Court for the Southern District of New York, pits the Guerrilla Girls Inc., against one of its splinter groups, the Guerrilla Girls Broadband Inc. The Guerrilla Girls settled a separate suit against the Guerrilla Girls on Tour Inc. earlier this year. Representatives of the Guerrilla Girls allege that it is the successor-in-interest to all property belonging to the group prior to its 1999 incorporation, including at least 27 posters and two books, “Confessions of the Guerrilla Girls” and “The Guerrilla Girls’ Bedside Companion to the History of Western Art.” The suit, alleging among other things copyright infringement and trademark infringement, seeks damages and injunctive relief. In the most recent turn in the case, Judge Louis L. Stanton granted a motion to disqualify the defendants’ counsel, Barbara Hoffman, who represented the Guerrilla Girls from 1991 to 1996. The listed plaintiffs include two of the group’s founders, Erika Rothenberg and Jerilea Zempel. At least one original member, Catherine Doe (also known as “Gertrude Stein”) is among the defendants. The artists use the names of deceased female artists, such as Georgia O’Keefe and Zora Neale Hurston (and don gorilla masks at public appearances) to focus attention on their message and not their identities, they say. This lawsuit marks the first occasion in which the plaintiffs have publicly revealed their names. Other defendants include “Marilyn Monroe,” “Lee Krasner” and “Jane Bowles.” In disqualifying Hoffman, the court, though not bound by the Code of Professional Responsibility, relied on its Disciplinary Rule 5-108(a)(1), which sets forth three factors for disqualifying an attorney from a case. First, the moving party must be a former client of the opposing attorney. Here, the defense argued that Hoffman represented the Guerrilla Girls and not its individual members, plaintiffs Zempel and Rothenberg. The court found that this argument failed for several reasons, including that Hoffman’s representation of the group is “tantamount to her representation of each of its members.” The second factor requires the relationship between the issues in the prior and present cases to be “patently clear,” “identical” or “essentially the same.” The court held that this element also favors disqualification. “The litigation raises issues of ownership and authorship of 27 copyrighted posters and two books. Hoffman was integrally involved in the copyright of the posters and the contract negotiations for both books,” wrote Judge Stanton. Finally, the code requires proof that the attorney “had access to, or was likely to have had access to, relevant privileged information in the course of his prior relationship to the client.” After noting that the code does not require “actual” access to such information, Stanton ruled that the “fact that Hoffman had such access is demonstrated by her representations to publishers that she knew the identities of the authors (information which is at the heart of this litigation).” Hoffman did not return a phone call seeking comment. Defendants “Gertrude Stein” and “Marilyn Monroe” could not be located. The members’ names, which have been tightly held since the group’s inception nearly 20 years ago, remained guarded until the filing of the suit. “When you own the trademark in your individual name and you want to enforce it, you don’t have a choice. You have to [sue] individually,” said the plaintiffs’ attorney, Theodore K. Cheng of Paul, Weiss, Rifkind, Wharton & Garrison. GROUP’S GENESIS In 1985, the Guerrilla Girls began plastering lower Manhattan with blunt, sarcastic black-and-white posters decrying segregation and discrimination in the art world. They quickly rose from street artists to critical and commercial successes. “Aiming to ‘make feminism fashionable again,’ the Guerrilla Girls initiated their hit-and-run poster campaign,” wrote New York Times art critic Roberta Smith. “In effect, they took feminist theory, gave it a populist twist and some Madison Avenue pizazz and set it loose in the streets.” A typical early poster asked, “Do women have to be naked to get into the Met. Museum? Less than 5 percent of the artists in the Modern Art sections are women, but 85 percent of the nudes are female?” It showed a nude wearing a gorilla mask. The posters led to billboards, gallery shows, book deals, a spot in the Museum of Modern Art’s permanent collection and, ultimately, the lawsuit over who owns the rights to the Guerrilla Girls’ work.

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