Atlanta exhibitor's case illustrates fierce international competition
R. Robin McDonald
Fulton County Daily Report
April 21, 2006
Brian Wainger, the in-house counsel to Atlanta-based Premier Exhibitions, says that his company's federal suit against a Michigan firm is no more than a dull contract dispute. Perhaps, but most dull contracts do not concern cadavers. At issue in Premier's suit filed April 6 in U.S. District Court in Atlanta is "Bodies Revealed," a Premier Exhibitions show in Mexico City.
Like Premier's show at the Atlanta Civic Center, "Bodies ... The Exhibition," the Mexico City display features an array of partially dissected, preserved cadavers stripped of their skin to reveal organs, nerves and muscular structure. The bodies are displayed in a variety of poses, such as dancing or throwing a ball, much as one would pose a model.
The cadavers have been made impervious to decomposition through a polymerization process, using acetone and liquid silicone, called plastination.
Premier's suit illustrates the fierce international competition among body exhibitions. Premier recently settled a federal suit in Ohio in which the company owned by the German anatomist who developed the body preservation techniques, Gunther von Hagens, accused Premier of violating its copyrights.
Premier, which is traded under the symbol PXHB, also has versions of "Bodies ... The Exhibition" touring in Tampa, New York and London. A press release stated that more than 400,000 visitors have seen the Tampa, Fla., exhibit.
The defendant in Premier's Atlanta suit is Michigan-based Exhibit Human: The Wonders Within Inc. Premier claims Exhibit Human breached an agreement through which Exhibit Human provided Premier -- through a subsidiary -- with the polymer-preserved bodies Premier is now showing in Mexico City.
The case is Premier Exhibitions, Inc. v. Exhibit Human: The Wonders Within, Inc. No. 1:06-cv-00812 (N.D. Ga., April 6, 2006).
Premier's suit against Exhibit Human stems from an effort to settle a dispute between the companies. Premier claims that it agreed to end its contractual relationship with Exhibit Human and pay $400,000 to the Michigan-based firm. In return, Premier sought the "ownership rights" to the Mexico City exhibit, according to the complaint.
According to e-mails between attorneys for Premier and Exhibit Human, which were attached to Premier's complaint, the extension of a non-compete agreement is also at issue.
'JUST A CONTRACT DISPUTE'
Wainger, Premier's in-house counsel this week called the suit "just a contract dispute" to enforce an alleged arbitration agreement on which he declined to elaborate.
"As a general rule, we don't like to talk about litigation," he said. "We let it play out in court. ... The lawsuit speaks for itself."
He insisted that in the suit, "We're not talking about ownership or bodies," or their purchase and sale. "We're talking about rights to exhibit," he said. "This was a license agreement to be able to present a set of specimens" as opposed, he added, to the specimens themselves.
Exhibit Human's attorney, Daniel J. Cline of the Midland, Mich., firm Cline Close Dyer & Gambrell on Wednesday declined to comment on the litigation, saying, "I haven't had an opportunity to talk to my client about this."
In the correspondence that is attached to the Atlanta suit, Cline noted that his client denied that any settlement agreement had been reached and that earlier offers to settle had "not been made in good faith."
The Atlanta suit appears related to recently settled litigation in U.S. District Court in Cleveland, Ohio, in which Premier was the defendant.
The Ohio suit was brought by a cadaver show competitor, Plastination Co., the owner of "Body World Works" -- the granddaddy of the polymerized cadaver exhibits.
Body World Works and Plastination Co. are owned by von Hagens, who originated the process by which the cadavers are polymerized and preserved. According to the Plastination claim, Hagens holds U.S. copyrights and trademarks associated with the plastination process and the polymerized cadavers, as well as for merchandise marketed in association with the touring exhibition.
COPYRIGHT CLAIMED
In the suit, von Hagens claimed the partially dissected, preserved cadavers, the manner in which each is partially dissected and their display in "unique and informative positions" are all subject to federal copyright protection as "an original expression of ideas fixed in a tangible medium."
The Ohio suit claimed that Premier representatives met with von Hagens in the summer of 2002, viewed the "Body World Works" exhibit, then copied it as "Bodies Revealed." Premier then began touring its allegedly infringing exhibition and marketing similar merchandise based on the cadaver displays. That case is Plastination Co. Inc., v. Premier Exhibitions, Inc., No. 1:05-cv-0594 (N.D. Ohio, Feb. 16, 2006).
In its court filings, Premier acknowledged that it had created "reproductions and images" based on "Body World Works" in its "Bodies Revealed" exhibition. But Premier also claimed in defense that von Hagens' U.S. plastination patents had expired and that the posed cadavers were "uncopyrightable."
In a counterclaim, Premier also accused von Hagens of circulating rumors "questioning Premier's acquisitions of bodies, even though Plastination knew that Premier had documents authenticating" those acquisitions.
According to reports in London's The Guardian and The New York Times, human rights advocates in China have questioned whether the polymerized cadavers were those of executed prisoners that were then sold for profit.
Premier Exhibitions President Arnie Geller and von Hagens have repeatedly denied in news reports that the cadavers used in their touring exhibitions were secured illegally or were the corpses of executed Chinese prisoners. Instead, Geller and von Hagens have asserted in company news releases that the bodies that have been incorporated in their exhibitions died naturally and were donated to medical science, primarily to Dalian Medical University in northern China where both firms have acquired corpses.
After going to arbitration, the federal suit in Ohio settled out of court on April 6.
"The settlement was, of course, confidential," said Wainger.
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