The reader – especially the reader who voted Democrat in the past presidential election – may be familiar with the so-called “Obama Hope” image which has graced posters, tee shirts, drinking glasses, ash trays, place mats and assorted knick-knacks. The alleged creator of this image, Mr. Shepard Fairey, recently made news as he sued The Associated Press for a declaratory judgment that the said image did not infringe any of their copyrights. The lawsuit, and the accompanying publicity, sought to position Mr. Fairey as a David fighting the mighty AP Goliath – and, incidentally, to hype sales of this dreadful kitsch.
Responding to the lawsuit, The AP took some discovery, including a deposition of Mr. Fairey. As a result of this discovery, Mr. Fairey admitted that he did, in fact, use an AP photo, but claimed that this was a legally permitted “fair use.” The AP has now filed an amended answer to Mr. Fairey’s complaint, alleging inter alia that:
(1) The Associated Press is a nonprofit organization and the “licensing of content is fundamental to The AP’s existence” (they devoted five paragraphs to making this point);
(2) Mr. Fairey and his affiliated companies have made substantial profits from the sale of items bearing the subject image – over $400K as of September 2008;
(3) Mr. Fairey “has been arrested more than a dozen times for targeting communities with his graffiti, vandalism and related crimes;”
(4) Mr. Fairey has a “long history” of copyright infringement, several examples of which were described in detail (they devoted seven paragraphs to making this point);
(5) Mr. Fairey, and his affiliated companies, were “quick to use the law to restrict others from using their materials and to preserve the exclusive use of Fairey’s designs,” having filed at least nine trademark applications in the past decade;
(6) Fairey, and his related companies, are “quick to hunt down artists who they believe unlawfully use Fairey’s intellectual property, without apparent regard to the principles of fair use that [they] conveniently espouse in this case” (this allegation is set forth in eight paragraphs);
(7) Fairey was guilty of “unclean hands” – an equitable doctrine that basically holds that courts will not exercise their discretion to be nice to you if you are a bad guy – as a result of all of his “hypocritical” behavior;
(8) Fairey’s use of the AP photo was not a legally permitted “fair use as it did not add anything to” the distinctive characteristics of [the original] image, did not “serve a different purpose than the original work, or transform the original image into a new expression” nor did it comment on or criticize the original photo;
(9) Fairey downloaded the original photo from Google Images and “stripped away the copyright management information” (which appeared at the bottom of the photo), in violation of copyright law;
(10) Fairey had destroyed and/or attempted to conceal or alter evidence; and finally
(11) Fairey, and his related companies, registered copyrights in the Obama Hope image, without disclosing “that they were actually derivative works of The AP’s Obama Photo,” thus committing a fraud on the U.S. Copyright Office (obviously a hanging offense).
The AP went on – at great length – to detail how they had offered Mr. Fairey a license at their standard rate – which we are, apparently, to assume is minimal, but that he rejected it. Allegedly, Mr. Fairey’s counsel then proposed a “standstill agreement” while the parties sought to resolve the matter. The AP agreed to this, only to have Fairey promptly file his declaratory judgment action “without so much as a courtesy e-mail” – clearly the most unkindest cut of all.
Not surprisingly, Fairey’s counsel – including the Stanford Law School Center for Internet and Society – withdrew their representation, citing Fairey’s admitted evidence tampering. He is now represented by the Jones Day law firm.
THE LESSONS TO BE LEARNED: (1) In view of modern discovery practices, don’t count on keeping anything secret – it all comes out; and (2) don’t bluff – if your skirts are unclean and your opponent offers you a reasonably priced out – take it.
NOTE: As a general rule, we are on the side of the “little guy;” but, if half of what is alleged by The AP is true – and a lot of it seems well documented – Fairey deserves a severe, i.e. costly punishment.