Well folks, we have a new winner in our Chutzpah In Litigation contest. (Fairey et al. v. The Associated Press)
As the reader may remember from three of our earlier blog entries (Goliath Slays David, The Music Goes On and, most recently, A Novel Defense), Shepard Fairey – himself a previous contest winner – is the “gentleman” (we use this word advisedly) responsible for the tidal wave of kitsch bearing the “Obama Hope” image, an image which he admittedly copied from an AP photograph. Mr. Fairey, after being caught altering evidence, settled the copyright infringement claims brought against him by The AP. The lawsuit continues, however, with respect of one of the defendants, One 3 Two Inc. d/b/a Obey Clothing.
Obey Clothing, an exclusive licensee of Mr. Fairey, is the distributor of the Obama Hope t-shirts and sweatshirts. The AP now seeks “disgorgement” (legalspeak for “give it to me”) of all of the profits, both direct and indirect, derived from the sale of these atrocious garments. Rather than simply following in Mr. Fairey’s footsteps and settling with The AP, Obey Clothing has chosen to fight. Adhering to the military maxim that the best defense is a good offense, they have moved for a summary judgment that The AP’s copyright in the photograph is invalid, arguing that The AP is merely seeking to extract money from “a clothing company it views as a deep pocket.”
So what arguments has Obey Clothing advanced in support of this position? First, they maintain that the “Obama Hope” photograph is “the kind of campaign speech at the core of the First Amendment.” Yep, they’re arguing freedom of speech! Next, they argue that they only used part of the copyrighted photograph; if you look very closely, it appears they cropped a portion of Mr. Obama’s suit coat! Lastly, they assert that “the photograph is not sufficiently creative to constitute protectable expression.”
Just to cover all the bases, Obey Clothing also claims that it “unwittingly reproduced” the Obama Hope photograph and its use thereof was somehow “accidental.” This last argument rings particularly hollow in that copyright infringement is a “strict liability” tort – accidental copying is still copyright infringement as a matter of law. Moreover, the undisputed evidence disclosed that Mr. Fairey had the foresight to demand, and receive, a guarantee of indemnification for any claims of copyright infringement. This, of course, suggests that the parties, including Obey Clothing, were aware of the possibility that such a claim could arise. So much for innocent infringement!
All in all, Obey Clothing’s defense smells like last week’s fish, and we hope the Court treats it accordingly.
THE LESSONS TO BE LEARNED: (1) Don’t deal with sleazy people; and (2) when you’re caught breaking the rules, fess up – don’t try to weasel out of it by presenting silly defenses, which only make matters worse.