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168 F.3d 861,*; 2004 U.S. App. EASTLAW 3254,**;
69 U.S.P.Q.2D (BNA) 1234; Copy. L. Rep. (CCH) P23,4567

The Court finds in favor of the defendant on this factor.

Recently, this Court upheld the appropriation of a popular and well-known advertising campaign for the purpose of promoting a political campaign. MasterCard Int'l Inc. v. Nader 2000 Primary Comm., Inc., 70 U.S.P.Q.2D (BNA) 1046 (2004). It was noted that "[t]he stated purpose of the defendants' advertisement was to raise public awareness of Ralph Nader's desire to be included in the upcoming, televised Presidential candidate debates." There as here, the plaintiff additionally alleged a state law claim under New York common law for trademark infringement. Under New York common law, as under federal law, a plaintiff must show a likelihood of confusion between the two products in order to prevail. See Nabisco v. Warner-Lambert Co., 32 F. Supp.2d 690, 701 (S.D.N.Y. 1999). As with plaintiff's federal Lanham Act claims, there is no likelihood of confusion between the works and associated products of Salvador Dali and the series of conceptual works by Mark Kostabi that contain the signature of Salvador Dali. Plaintiff has failed to show a genuine issue of material fact as to the existence of a likelihood of confusion between Salvador Dali works and products and Mark Kostabi's works. Therefore, defendants are granted summary judgment on

plaintiff's New York common law trademark infringement claim.

      VIII. Defamation

      For plaintiff's count of defamation to succeed, they must show "defendants' intent to distort plaintiff's work and to represent the fragments as complete composite works of art with sufficient clarity to surmount that threshold." Wojnarowicz v. American Family Association, 745 F. Supp. 130, 144 (S.D.N.Y. 1990). Further, the commentary provided does not even rise to the high level of outrageous commentary, accompanied by an intent to inflict emotional distress, that itself was rejected as a standard in Hustler Magazine v. Falwell, 485 U.S. 46, 52-54 (1988). As Dali himself is dead, leaving no widow or children, it seems the defamation is to the profitability of the estate, a count on which the plaintiff has already failed to prevail. Here again, we find for the defendant.

      Conclusion

      For these reasons, we affirm the judgment of the District Court.