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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK 
---------------------------------------------------------XARIEL FLEURIMOND,Plaintiff,-against- NEW YORK UNIVERSITY,Defendant.---------------------------------------------------------X
MEMORANDUM OFDECISION AND ORDER 
09-CV-3739 (ADS)(AKT)
APPEARANCES:Conway Business Law Group, P.C.
 Attorneys for the Plaintiff 
33 Walt Whitman Road, Suite 310Huntington Station, NY 11746By: Mona R. Conway, Esq., Of Counsel
Reitler Kailas & Rosenblatt LLC
 Attorneys for the Defendant 
885 Third Avenue, 20
th
Floor  New York, NY 10022By: Robert W. Clarida, Esq., Of Counsel
SPATT, District Judge.
 This case arises from the allegations by the plaintiff Ariel Fleurimond (“Fleurimond” or “the Plaintiff”) that she is the sole creator and copyright owner of “Orion”, a caricatured drawingof a cougar. On August 27, 2009, she commenced this action against New York University(“NYU” or “the Defendant”), alleging that it infringed upon her copyright by using and sellingvarious items that bear the Orion design without her consent, in violation of the Copyright Act of 1976, 17 U.S.C. § 101,
et 
 
 seq
. Presently before the Court are the parties’ motion and cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons
!ase 2:09-cv-03739-ADS-AKT Document 104 Filed 07/10/12 Page 1 of 37 PageID #: 2143
 
2set forth below, the Court denies the Plaintiff’s motion for summary judgment and grants theDefendant’s cross-motion for summary judgment dismissing the complaint.
I. BACKGROUND
The following constitutes the undisputed facts of the case unless otherwise noted. Thesefacts are drawn from the parties’ summary judgment submissions, as well as the depositiontranscripts requested by the Court and the stipulated facts in the Joint Pre-Trial Order filed onApril 9, 2012.
A. The Initial Employment Relationship
 NYU is a non-profit corporation duly organized and existing under the laws of New York State where it acts primarily as an educational institution. Fleurimond is a resident of the Countyof Suffolk in the State of New York. In the fall of 2005, she enrolled in NYU’s baccalaureatestudies program. In January of 2007, Fleurimond registered with a Federal Work StudyProgram. Thereafter, NYU hired Fleurimond to work as an equipment room aide for the NYUAthletics Department at their two gym facilities, Coles Gym and Palladium Gym (“the NYUathletic facilities”).Fleuirmond worked in her capacity as an equipment room aide from January of 2007until approximately September of 2007. As an equipment room aide, Fleurimond wasresponsible for distributing gym locks and equipment and laundering and distributing towels tomembers of the NYU athletic facilities. To keep track of her hours, Fleurimond used technologywhere she would scan her hand to check in when she arrived for work, and scan her hand againwhen she left to clock out. Fleurimond was compensated for her work as an equipment roomaide at a rate of $8.00 per hour. In addition to this position, Fleurimond worked as a webdesigner for NYU’s College of Dentistry from approximately March to July of 2007.
!ase 2:09-cv-03739-ADS-AKT Document 104 Filed 07/10/12 Page 2 of 37 PageID #: 2144
 
3Fleurimond was compensated for her work at the College of Dentistry at a rate of $12.00 per hour.In or around March of 2007, Fleurimond was approached by NYU Retails and SalesManager Nancy Isa who inquired if she would be interested in doing graphic design work for theAthletics Department. Fleurimond accepted the graphic design position, and her compensationwas increased from $8.00 per hour to $16.00 per hour in recognition of the different nature andscope of her employment. In order to get compensated for her graphic design work, Fleurimondwould submit invoices to Isa with the number of hours worked. No new paperwork was filledout for Fleurimond’s new position. As a result, her official recorded compensation rate for the NYU Athletic Department was still $8.00 per hour. Accordingly, in order to ensure thatFleurimond was paid $16.00 per hour for her graphic design work, Isa would double the hoursthat Fleurimond submitted. Isa would then provide that information to Alex Martinez, who wasin charge of Human Resources for the Athletic Department, for him to process for payment.Fleurimond’s graphic design work initially consisted of adding graphics to the NYUathletic department website; creating banners to be placed in the Coles gym and Palladium gym;advertisements for the NYU athletic store known as the “Sweat-N-Shop”; and advertisements for athletic department events (“the promotional materials”). (Fleurimond Dep. at 36.) However,Fleurimond never did work on revamping the website, but rather focused her graphic designwork on the banners, signs, and seals. (Id. at 40–41.) According to Fleurimond, she did themajority of her graphic design work at home on her own computer, although she sometimeswould work on campus if Isa needed her to work on banners, shields, or signs while she wasthere. (Fleurimond Decl., ¶¶ 18, 19; Fleurimond Dep. at 41–43.) Regardless of whether sheworked from home or on campus, Fleurimond submitted invoices to Isa for compensation. It is
!ase 2:09-cv-03739-ADS-AKT Document 104 Filed 07/10/12 Page 3 of 37 PageID #: 2145
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