Thank you for sharing!

Your article was successfully shared with the contacts you provided.

It’s fair to say that artist Shepard Fairey threw something of a wrench into his copyright fight with The Associated Press last month when he admitted lying — and then fabricating and destroying evidence to cover up the truth — about which AP photo he used as the basis for his iconic “Obama Hope” poster. On Tuesday, U.S. District Court Judge Alvin Hellerstein removed that wrench from the proceedings. For now. “I see this as digression from what I have to do,” said Hellerstein, stressing that he is intent on focusing on the copyright infringement and fair use questions at the heart of the dispute. “I want this case concluded on the merits.” At the same time, Hellerstein hinted that when the appropriate time comes, he won’t have any trouble using the wrench provided by Fairey as a weapon against the artist. The judge said Fairey’s attempt to obscure the truth about which AP photo served as his source material was “a serious transgression,” as well as a possible “crime of fraud” and that he was “not going to blink it away.” Perhaps most ominously for Fairey, Hellerstein said that should the parties try to settle the case, “I will not accept a settlement with this issue wrapped into it.” “I’ve not seen anything like it,” the judge said. Hellerstein’s comments came amid a hearing on whether Fairey’s original lawyers on the case — led by Anthony Falzone, executive director of Stanford University’s Fair Use Project, and Joseph Gratz, of Durie Tangri Lemley Roberts & Kentshould be allowed to withdraw and be replaced by a new team led by Jones Day partner Geoffrey Stewart. The AP’s legal team, led by Dale Cendali of Kirkland & Ellis, opposed the switch for several reasons, according to court filings. Among those reasons: that bringing in new counsel would mean added expense for The AP and that letting Fairey’s original lawyers withdraw would prevent The AP from learning about “where the bodies are buried” in terms of Fairey’s efforts to stonewall the discovery process. Hellerstein rejected Cendali’s arguments: “I don’t want to make them stay in the case,” he said. He also refused Cendali’s request that Fairey’s behavior be probed with an eye toward potentially dismissing the case before it proceeds any further, but vowed to revisit it in the future. “We’ll follow this issue to its proper conclusion,” Hellerstein said. After the court session ended, both Falzone and Gratz declined to comment. Stewart, who said that he was taking the case pro bono, said Hellerstein was taking an “intelligent approach” by separating the copyright questions from the evidence-tampering issues. Cendali, too, sounded satisfied with Hellerstein’s methods. “The judge has a lot of discretion as to how and when he decides the sanction issue,” she said. “What we’re pleased about is that the judge takes the spoliation and fabrication very seriously.” The development marks the latest chapter in a legal saga that began in February when Fairey sued the AP in search of a court ruling that his Hope poster did not infringe the wire service’s copyright of an Obama photograph taken by AP freelancer Mannnie Garcia. The AP countersued, accusing Fairey of infringement, as well as acting in bad faith by essentially lying about which Garcia photo he used as a “visual reference” in coming up with Obama Hope. (Garcia himself joined the case several months later, asserting that he, not The AP, holds the copyright on the image. A lawyer representing Garcia, Michael Underhill of Boies, Schiller and Flexner, was also on hand Tuesday.)

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.