Mark Lemley's new law firm, Durie Tangri Lemley Roberts & Kent, has wasted no time in taking a whack at Associated Press (AP), in filing a declaratory judgment action in the Shepard Fairey matter involving the Obama Hope poster. IPBiz had earlier suggested that the parties might resolve the issue, but Lemley's firm is playing litigation hardball.
[Lemley's firm was on Fairey's side, and opposing AP.]
AP reported on Fairey's admission on 16 Oct. 09:
Artist Shepard Fairey, who designed the famous Barack Obama "HOPE" poster, admitted Friday [16 Oct.] that he didn't use the Associated Press photo he originally claimed his work was based on but instead used a picture the news organization had claimed was his source.
The basis for Fairey's arguments have now changed, and Fairey's attorneys are beating a hasty retreat:
Fairey sued the not-for-profit news cooperative in February, arguing that he didn't violate copyright law because he dramatically changed the image. The AP countersued in March, saying the uncredited, uncompensated use of an AP photo violated copyright laws and signaled a threat to journalism.
Fairey's attorneys, led by Anthony Falzone, executive director of the Fair Use Project at Stanford University, have informed the AP that they are withdrawing. [UPDATE on 24 Oct. The attorneys say they have not withdrawn but may withdraw.
Shepard Fairey's lawyers say they have not yet withdrawn from AP case]
The significance of the admission by Fairey is that he didn't really "change" the photo as much as he earlier asserted. This was a case of copying, not of artistic creation. NY Mag put the matter this way:
The crux of the AP's argument has been that the photo they think Fairey used, of Obama sitting alone, was not altered enough by the artist to count as fair use. Fairey now admits that, while he originally thought he used a photo of Obama sitting next to actor George Clooney, he realized early on that he was wrong and didn't change his story in court or in interviews.
Meanwhile, AP is taking an aggressive position:
"Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters," Kasi said.
"Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions."
Kasi said the AP would continue to "vigorously pursue its countersuit alleging that Fairey willfully infringed the AP's copyright in the close-up photo of then-Sen. Obama."
It would appear that Lemley's law firm has had an up-close-and-personal brush with willful infringement.
Lemley law firm plays litigation hardball with AP over Fairey Obama Hope poster