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Judge rules Shepard Fairey can switch lawyers in AP case

November 10, 2009 |  2:04 pm

Fairey

Artist Shepard Fairey is set to change his legal team after a federal judge denied a request by the Associated Press to halt the switch.

The Los Angeles-based street artist, who is currently embroiled in a fair-use suit with the AP over his "Hope" poster of Barack Obama, admitted in October that he knowingly submitted false images and deleted others in the legal proceedings.

Soon after, his legal team, headed by Anthony Falzone of Stanford University's Fair Use Project, said to various parties that it intended to withdraw from the legal proceedings at an undetermined date.

On Monday, the AP filed papers in a Manhattan federal court asking that the request to change lawyers be turned down because Fairey's attorneys have “unique knowledge” that is germane to the case.

The AP also stated that a change in counsel would cause "additional prejudice and undue delay," according to the papers.

On Tuesday morning, a judge ruled against the AP, thus paving the way for Fairey's new team to assume its place.

The artist's new legal representation will consist of Geoffrey Stewart and Meir Feder of the law firm Jones Day.  Also joining the team will be William Fisher, a professor at Harvard Law School and director of the Berkman Center for Internet and Society, as well as John Palfrey, another Harvard Law professor. (Harvard Law School itself does not have a role in Fairey's representation.)

Sources have told The Times that Fairey is likely to be sanctioned as a result of his misconduct during the case. When the court will hand down those possible sanctions is unclear.

Fairey has stated that the fair-use issue at the center of the legal dispute remains unchanged, even though he has admitted that he used a certain image by AP photographer Mannie Garcia for his "Hope" poster.

The artist and the AP have filed a series of suits and countersuits against each other relating to the case.

-- David Ng

Photo: Shepard Fairey at the symbolic re-creation of the Berlin Wall in Los Angeles earlier this week. Credit: Stefano Paltera / For The Times

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Comments () | Archives (2)

I was at the hearing.

While the Judge may have denied the AP's request that he not be allowed to switch lawyers, it opened up a better avenue for the AP legal team.

While Falzone was actively the attorney for Fairey, he would be able to assert attorney-client privilege on essential parts of legal discovery in the case and potentially obstruct the fact-finding purpose of discovery processes allowed by the courts.

Now that Falzone is no longer the attorney, and there is no attorney-client privilege, or rather, Falzone can now be deposed as a witness on certain limited specific aspects of how the evidence came to be falsified and at which point Falzone was aware of this - which likely would be serious violation of the attorney's Professional Rules of Conduct.

Generally an attorney has a serious professional duty to investigate the merits of a lawsuit BEFORE bringing that lawsuit (to avoid frivolous or malicious claims), and if Falzone knowingly sued to use this as a "test case" to expand Fair Use rights on behalf of his Fair Use Project at Stanford, based on false evidence, this is pretty serious stuff.

There seems to be an agenda to undermine our existing copyright law by expanding "fair use" claims behind this.

Fairey lives where, in Los Angeles? Falzone and his 5 or 6 other lawyers working on the case from the Stanford Fair Use Project (what, 7 hours away near SF), set out to bring a case across the country in NYC?

Why not hire a NY lawyer if the case must be brought in NY Federal court (one must sue the defendant, the AP, in their jurisdiction which is NY)?

What plaintiff (Fairey) would reasonably incur the MASSIVE extra expenses of 5 or 6 lawyers from the west coast to travel to NY for each and every hearing?

Lawyers will occasionally bring "pro bono" or volunteer cases. So if the Fair Use Project and its 5 or 6 lawyers were bankrolling Fairey's entire lawsuit against the AP, with the intention of expanding the definition of "fair use" by trying to use this as a "test case" to set new legal precedent for future derivative works to no longer be considered copyright infringements...well, what motive would be worth it to this Fair Use Project to spend 5 or 6 attorneys' time (several hundred dollars an hour each, plus travel time and expenses to NY) in exchange for this massive outlay of their own resources?

it would appear that they were motivated to bring this "test case" to try and set legal precedent on what level of MINIMAL change to a photographic image into a traced collaged poster can be considered "transformative" use and still be considered "Fair Use."

Sure, to be fair, it's been a grey area for years, as to how much of someone else's copyrighted work you are allowed to copy without being liable for copyright infringement. Fairey falsified evidence to claim that the source photo was very different from his final image, except that the AP found forensic/computer data showing that Fairey had deleted the real source files. They contend that he used almost in its entirety, the other image (without Clooney) and indeed, there has been a Photoshop study done showing the images match almost EXACTLY, with the only variations being a slight curve of line here or sectioning of color there. Otherwise, it is a TRACING of the source copyrighted photo, in nearly 100% of its entirety. The source photo was rotated approximately 5.5 to 7.5 degrees and other than that the image is an exact overlay, with the exception of the hand tracing curving the line slightly differently.

Even if we talk in percentages, even if all the collage elements and colors added later (is "blue" and "red" as the colors of the American flag really a creative concept?? :) are considered "unique artistic contribution" from Fairey, the traced photo is the dominant portion of the image. It is upwards of 90-98% of the final image that matches the source copyrighted image.

Mr. Garcia (the photographer who took the Obama photo) had his attorney there, a very nice man. They contend that though they have their own issues with whether or not Mr. Garcia or the AP own the photo, that they are largely aligned with the AP copyright infringement suit against Fairey and are not going to stand in the way of the AP moving forward to get that resolved.

Okay so back to the Fair Use issues.

Are you aware that Google and even a major national arts union/organization has been working on funding lobbyists to get a bill passed in Congress that would allow creators' copyrights to be taken into the public domain against their will?

It's called the Orphan Works bill. Put most simply, despite the cute name, it's very bad. It was forced through the Senate and passed (even though many of the Senators didn't even know that it had been passed in their names, through a controversial process called "hotlining" in the Senate, where if a Senator doesn't object within 15 minutes, someone automatically votes for it in the Senator's name...even if he didn't respond within 15 minutes(!). The Senate passed it, and it was set to go to the House of Representatives next for a vote.

Did anyone even know about this? Was it publicized in any real way so that creators (artists, writers, photographers, filmmakers, etc.) and the businesses that rely on the exclusivity of these copyrights could have a chance to object?

This would be equivalent of seizing your house by "eminent domain" to build a stadium or a freeway, because the government decides they want your land.

Except in this case they would be taking your private intellectual property and turning it over to the public domain, where any copyist could just take it and profit from it without having to ask your permission, give you credit for your work, or share any of whatever profit they make.

The copyrights the LA Times and its writers hold in their unique work would potentially become the public domain once this Orphan Works bill passes. There are things along the way that make the Orphan Works bill misleading...they say that as long as the creators' name is on the work, that it's not an "orphan" and not part of the public domain. However, what's to stop an infringer from just using your work and taking your copyright notice off of it (naming no names of artists who may have done this for certain posters...) and if an infringer orphans your work, the infringer after that could claim innocence since they never knew how to find you.

How does this tie back to this issue?

According the the AP (let's verify this, as I'm no fan of theirs either, just interested in the issues here), they say that Fairey has in the past licensed images from them, that he knows the process and how to contact them for usage rights.

According to Fairey's interview (mp3) with the National Portrait Gallery curators, Fairey traced the image onto rubylith and made the poster in an evening, it was published as posters the next day. Working quickly does not make the work less valuable generally (inspiration can come lightning fast :) but in this case, it would seem to justify that Fairey was in a hurry and just didn't feel he needed to contact the AP for permission to use their image this time around. Then the poster got hugely successful. In his interview, Fairey claims Russell Simmons paid him a LOT of money to create another image like this one (based on the same photo?) for Simmons' private use. If Fairey made a huge profit from using another's image, including the over 300,000 posters he claims to have made, the licensed merchandise we see on mint tins and t-shirts everywhere, etc., that profiting use no longer falls under the terms of "Fair Use."

It would seem that a person named Larry Lessig is on a mission to expand Fair Use for the public (a noble thing, in theory), though dangerously at the expense of creators losing their private property. If my facts are straight, Mr. Lessig was formerly at Stanford, now moved to Harvard. Any coincidence that Fairey's new attorney team is based out of Harvard? The Judge asked Fairey's new attorneys at the hearing if Larry Lessig was now at Harvard, and Fairey's new team said yes he is. Maybe just coincidence, but something kinda odd going on here. Why bring in a Boston team to work long-distance in NY state, once again?

So what motive could Stanford's Fair Use Project have here in funding 5 or 6 attorneys to work on this case and fly cross country and the extra expense of that vs. hiring local expert attorneys (I hear the attorneys in NYC aren't exactly yokels either!)

And now that Falzone and the Stanford team have left, what motive could this Harvard-affiliated group have in bringing this "test case" forward to set legal precedent on whether the tracing of anothers' photo, and using of 90-98% of the other person's photo in this new image that generated LOTS of money for Fairey and his companies...well, what motive could they have here in trying to set legal precedent that tracing someone else's photo is transformative use? How do these fair use proponents stand to benefit financially here, what if they can use this test case to support the Orphan Works bill going forward in Congress, which then has the potential for massive profits to companies like Google, the national arts union/organization at the same time it takes away the private intellectual property of those among us who actually strive to innovate new work, new thought, new imagery, instead of merely cannibalizing the old?

This is a fascinating case. I was shocked to find that sooooo many attorneys are working to defend Fairey's TRACING of a photo as his own "art"- the move from Stanford to Harvard, where Lessig is now, and neither in the jurisdiction of NYC where the case is actually being heard, seems to point to something else going on behind the scenes.

Sure, it's all very conspiracy theory - haha! But, let's look at the dots and connect some dots and see where this could be leading. Even if I'm totally off-base here, it seems that there is something unusual going on here with all these lawyers so hot to bring this case forward in the name of expanding "Fair Use" when the current copyright law (feel free to read it at http://www.copyright.gov - search for the sections on Fair Use that have been allowed to the public since the 1970s, the law already allows it! No need to change the copyright law if it's already allowed! :)

The Fair Use section of the 1976 Copyright Law currently in effect already allows educational, not-for-profit (in most case) uses of others' work without seeking special permission, for the purposes of education, review, and so on. If someone wants to use another's work without permission, and to them make substantial profit from it - how is that fair use? Would you want your creative work taken away from you in this way?

Many of the dots left to connect are still missing, but with the behind the scenes stuff going on in Congress over the Orphan Works bill trying to be forced into law while everyone else is distracted with financial woes....when the forced public domainizing of all these individuals' private property causes individuals and small businesses to go out of business...unable to generate the tax revenue the government needs to be raising right now for all those bailouts....hmmmmm, right?

So not sure how this Fair Use Project and Harvard project is intending to change the law through the courts rather than through legislation, but it may be a way they hope to set precedent to convince Congresspeople coming up.

Depending on how interested you are in publicizing these secret copyright wars, you may want to look up your local Representative, and both Senators from your state to call, write or fax them telling them you are concerned about your private property being lost to public domain if they allow the Orphan Works bill to pass, and please ask them as clearly as you can in BIG LETTERS in your letter :), to OPPOSE the Orphan Works bill, since the public has not been allowed to comment nor to object to this controversial proposed change to our 1976 Copyright Law that allows creators to own their own work for their lifetime plus 70-75 years. Phew. Like I EVER thought I'd be writing my Congresspeople...you know?

Curious whether anyone else would be interested in keeping an eye on the Fairey case and how it can be possibly connected to the Orphan Works proposed legislation moving through Congress in strange and secretive ways while none of us (who are the owners of our own creative work) are allowed to be made aware of it.

Consider helping curious folks like me connect the dots on how this might affect you, how there is something being built in the background while we're not noticing, and this case seems to have some interesting behind the scenes stuff going on. This is not just about the tracing of a photo.

I'd love to learn what you can find out too. I'll keep checking back on this issue, and I look forward to hearing what you think - thanks!

Fairey's lawyer dropping out is probably a blow to his ego but it doesn't necessarily blow his case. It's a common myth that Fairey's discovery faux-pas amounted to a game changer regarding how the court will rule when it gets to the merits of his case. So although perjury is a pretty serious legal no-no, that doesn't mean much in a copyright infringement suit

Abuse of discovery is completely independent of the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse warrant sanctions and even jail time but the precedent is on his side that bad faith isn't really pertinent in fair use.

As much as I'd like to see the court find fair use here, I don't think it's necessarily open-and-shut fair use on its face because of the effect on the market factor.


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