Koza's lawyer, Peter Scoolidge, tells Billboard he was not able to comment on Wait's motion because of pending legal proceedings, but that "our position is that we have properly alleged a claim of infringement against Mr. Shkreli." The suit claims that, though the illustrations were not used for promotional purposes, reproducing them in the booklet is a copyright violation and Shkreli is a party to that violation.
"In our view plaintiff has not alleged a claim for infringement against Mr. Shkreli," Wait writes in an email to Billboard. "As you may have seen, plaintiff fundamentally changed his claim against Mr. Shkreli when he filed his amended complaint. Specifically in the original complaint plaintiff alleged: 'Mr. Shkreli has infringed Mr. Koza’s exclusive right of public display by permitting at least three of the nine Wu-Tang Clan Portraits to be displayed to the public in a news article without Mr. Koza’s permission or license.'"
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According to Shkreli's attorney Wait, that amended complaint switched the claim from "alleged infringement of his right to public display" to an alleged infringement to his "right to distribute which are two different claims under the Copyright Act."
Saying the allegation in the original complaint was deficient because "allegedly showing a book to a single reporter is not a public display," Wait added that it also falls short in the amended complaint because "allegedly 'permitting' a reporter to copy or display a work does not state a claim for direct infringement." Shkreli played the album for Vice reporter Allie Conti in January.
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Either way, Wait says, the reporter's alleged conduct "is covered under the fair use doctrine."
Scoolidge -- who noted that a plaintiff is entitled to amend, or change, a complaint at various points in the case and that once they are amended the older version of the complaint is no longer an issue -- said the court ordered Wait to file his motion to remove Shkreli by April 1, with a reply due to the court from Koza's team by April 15.
Scoolidge said so far the Wu-Tang has not replied to the claims. A spokesperson for the group tells Billboard, "It's very unfortunate when you take a body of work and place out for the world to view and its placed in a negative light."