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October 2009 Archives

October 9, 2009

Entertainment Business Law Seminar @ CMJ Music Marathon & Film Festival

Friday, October 23, 2009 8:00am – 4:55 pm

NYU, Kimmel Center , Floor 10, Richard L. Rosenthal Pavilion

60 Washington Square South, New York, NY

As part of the sprawling 5-day CMJ Music Marathon & Film Festival, CMJ's comprehensive CLE program on Friday, October 23, not only energizes the members of the entertainment business legal community, but also provides an invaluable sounding board for all CMJ Music Marathon & Film Festival registrants, no matter their areas of expertise.

This year's event, titled The New Deal: Music and Film in a Brand New Environment is presented along with the Entertainment, Arts and Sports Law Section of the New York State Bar Association. CLE @ CMJ includes panel discussions and networking sessions hosted by speakers at the center of the industry discussing critical legal topics including Internet start-up litigation, online privacy rights, ethical negotiation practices, the basics of independent filmmaking and future trends in the film and music industries. MCLE-accredited.

CMJ is thrilled to highlight this legal forum with a Keynote Address by John Scher, Co-CEO, Metropolitan Talent, Inc. Beginning his journey in live music presentation at the age of 19, Scher has built a diverse and enormously successful live entertainment company that has challenged conventions of live music performance and distribution.


Information & Registration Details:
www.cmj.com/marathon/cle

Three special discounts on registration for as low as $199.
Register SOON and visit www.cmj.com/marathon/cle for more information.

October 15, 2009

UPDATE ON PRO IP ACT

By Joel L. Hecker

On the October 13, 2008 President Bush signed into law the 25 page “Priority Resources Organization for Intellectual Property Act of 2008," which is more commonly known as PROP IP. This law, among other things, created a new bureaucracy headed by an Intellectual Property Enforcement Coordinator (IPEC) to be appointed by the President with the advice and consent of the Senate. The position has informally been referred to as the “Copyright Czar” or “IP Czar.”

On September 28, 2009 President Obama appointed Victoria Espinel to the position, subject to confirmation by the Senate.

Ms. Espinel is an expert on international copyright enforcement. She was the first Assistant United States Trade Representative for Intellectual Property and Innovation at the Office of the U.S. Trade Representative and served as the Chief U.S. Trade Negotiator on IP subjects. She has also served as an advisor on IP issues to various House of Representatives and Senate committees, taught IP law, and is the founder and president of Bridging the Innovation Divide, a not-for-profit entity.

The appointment has been praised by various rights holder groups representing the music, entertainment, photography and other affected industries.

October 18, 2009

Brandeis University's Rose Art Museum Litigation Update

Brandeis University's motion to dismiss has been denied by the court in the lawsuit filed by three overseers of the Rose Art Museum. The plaintiffs want to prevent the museum from closing and selling its art, in order to raise money to support Brandeis' financial situation. Brandeis stated in court that it will not sell any art that had been donated by the plaintiffs, Meryl Tose, Jonathan Lee and Lois Foster. It also said that it would give the MA attorney general an opportunity for review if it wants to sell art from other donors.

Shepard Fairey Lied

It appears that Shepard Fairey lied, deliberately destroyed evidence of the actual image used in the Obama Hope poster, and in a cover-up, created false documents to support his fraud. He has now issed the below press release in apology. Fairey's attorneys have given notice to AP that they intend to withdraw upon his acquiring new counsel.

For Immediate Release
Contact: Jay Strell- Sunshine, Sachs & Associates,
(212) 691-2800/ (917) 362-9248 cell
strell@sunshinesachs.com

STATEMENT BY SHEPARD FAIREY ON ASSOCIATED PRESS FAIR USE CASE
OCTOBER 16, 2009

In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in
copyright laws, I wanted to notify you of a recent development in my case against The
Associated Press (AP).

On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia,
through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the
case, there has been a question as to which Mannie Garcia photo I used as a reference to
design the HOPE image. The AP claimed it was one photo, and I claimed it was another.
The new filings state for the record that the AP is correct about which photo I used as a
reference and that I was mistaken. While I initially believed that the photo I referenced was a
different one, I discovered early on in the case that I was wrong.

In an attempt to conceal my mistake I submitted false images and deleted other images. I
sincerely apologize for my lapse in judgment and I take full responsibility for my actions which
were mine alone. I am taking every step to correct the information and I regret I did not come
forward sooner.

I am very sorry to have hurt and disappointed colleagues, friends, and family who have
supported me in this difficult case and trying time in my life.

I am also sorry because my actions may distract from what should be the real focus of my
case - the right to fair use so that all artists can create freely. Regardless of which of the two
images was used, the fair use issue should be the same.

October 19, 2009

Shepard Fairey Litigation - The AP's Response

Statement from Srinandan R. Kasi, VP and General Counsel, The Associated Press

Striking at the heart of his fair use case against the AP, 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. 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.

In his Feb. 9, 2009 complaint for a declaratory judgment against the AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Sen. Barack Obama as the source of the artist’s Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.

After filing the complaint, Fairey went on to make several public statements in which he insisted that the photo with George Clooney was the source image and that “The AP is showing the wrong photo.” It appears that these statements were also false, as were statements that Fairey made describing how he cropped Clooney out of the photo and made other changes to create the posters.

Fairey’s lies about which photo was the source image were discovered after the AP had spent months asking Fairey’s counsel for documents regarding the creation of the posters, including copies of any source images that Fairey used. Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on Oct. 15, Fairey’s counsel informed the AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

The AP intends to vigorously pursue its countersuit alleging that Fairey willfully infringed the AP’s copyright in the close-up photo of then-Sen. Obama by using it without permission to create the Hope and Progress posters and related products, including T-shirts and sweatshirts that have led to substantial revenue. According to the AP’s in-house counsel, Laura Malone, “Fairey has licensed AP photos in the past for similar uses and should have done so in this case. As a not-for-profit news organization, the AP depends on licensing revenue to stay in business.” Proceeds received for past use of the photo will be contributed by the AP to The AP Emergency Relief Fund, which assists staffers and their families around the world who are victims of natural disasters and conflicts.

Lost and Found: A Practical Look at Orphan Works Program

The Association of the Bar of the City of New York
42 West 44th Street, New York, NY 10036-6689 www.nycbar.org
Lost and Found: A Practical Look at Orphan Works
Tuesday, October 20, 2009
6:00 – 8:00 pm
Meeting Hall, New York City Bar Association, 42 West 44th Street
How should the law treat “orphan works”? Please join us as we discuss proposals that would enable copyrighted works to be used when their owners cannot be located to obtain necessary permissions. What should be the obligations of potential users with respect to searching for copyright owners? How should infringement claims be handled if a copyright owner emerges? Do different types of copyrighted works present unique issues? What roles might registries and
recognition and detection technologies play? Our speakers will address these and related questions, focusing on orphan images.
Speakers:
Brendan M. Connell, Jr., Director and Counsel for Administration, The Solomon R. Guggenheim Foundation
Frederic Haber, Vice President and General Counsel, Copyright Clearance Center, Inc.
Eugene H. Mopsik, Executive Director, American Society of Media Photographers
Maria Pallante, Associate Register for Policy & International Affairs, U.S. Copyright Office
Charles Wright, Vice President and Associate General Counsel, Legal and Business Affairs, A&E Television Networks
Moderator:
June M. Besek, Executive Director, Kernochan Center for Law, Media and the Arts
This program is free and open to the public; registration is not required.
Co-sponsored by the Art Law Committee (Virginia Rutledge, Chair) and the Copyright and Literary Property Committee (Joel L. Hecker, Chair) of the New York City Bar Association, in conjunction with Columbia Law School’s Kernochan Center for Law, Media and the Arts.

October 20, 2009

Shepard Fairey Motion to Amend

Anthony T. Falzone (admitted pro hac vice)
Julie A. Ahrens (JA0372)
Stanford Law School
Center for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305
Telephone: (650) 736-9050
Facsimile: (650) 723-4426
Email: falzone@stanford.edu

Mark Lemley (admitted pro hac vice)
Joseph C. Gratz (admitted pro hac vice)
Durie Tangri LLP
332 Pine Street, Suite 200
San Francisco, CA 94104
Telephone: (415) 362-6666
Email: mlemley@durietangri.com
Attorneys for Plaintiffs and Counterclaim Defendants
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs,
-against-
THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff,
-against-
SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC and STUDIO NUMBER ONE,
INC. Counterclaim Defendants,
And
Case No.: 09-01123 (AKH)
ECF Case
MOTION TO AMEND PLEADINGS

MANNIE GARCIA, Defendant, Counterclaim Plaintiff and Cross-claim Plaintiff/Defendant,
v.
SHEPARD FAIREY AND OBEY GIANT ART, INC., Counterclaim Defendants,
And
THE ASSOCIATED PRESS, Cross-claim Plaintiff/Defendant.

Plaintiffs-Counterclaim Defendants Shepard Fairey (“Fairey”) and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One, Inc. by and through their attorneys, respectfully request leave to amend the following pleadings: (A) Plaintiffs Fairey and Obey Giant Art, Inc.’s Complaint; (B) Plaintiffs-Counterclaim Defendants Fairey and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One Inc.’s Answer and Affirmative Defenses to the Counterclaims of Defendant The Associated Press (“The AP”); and (C) Plaintiffs-Counterclaim Defendants Fairey and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One Inc.’s Answer, Affirmative Defenses, and Counterclaims to the Counterclaims of Defendant Mannie Garcia (“Garcia”). Plaintiffs and Counterclaim Defendants (“Plaintiffs”) move to amend these pleadings to reflect new information Plaintiffs’ counsel first learned on October 2, 2009 relating to the identity of the photograph Mr. Fairey used as a reference to create the Obama Works at issue in this case. The pleadings, with redlining indicating the proposed amendments, are attached to this motion as Exhibits A through C, respectively. The AP stated that it would not oppose this motion as long as Plaintiffs provide the Court with a full explanation as to why the amendment is necessary. Mr. Garcia’s counsel informed Plaintiffs’ counsel that Mr. Garcia does not oppose the motion so long as he is granted an additional 60 days for discovery. In Plaintiffs’ original complaint for declaratory judgment and in their answers to claims alleged against them by The AP and Mannie Garcia, Plaintiffs alleged that Mr. Fairey used a photograph of George Clooney and Barack Obama (identified in the original Complaint as the “Garcia Photograph” and identified by The AP in its Counterclaims as the “Clooney Photograph”) as a photographic reference to create the illustration of Barack Obama that appears in the Obama Works at issue in this case. In addition, Plaintiffs denied that Mr. Fairey used a photograph of Barack Obama alone (identified by The AP in its counterclaims as the “Obama Photograph”) as the photographic reference he used.

On October 2, 2009, counsel for Plaintiffs learned new information revealing that Plaintiffs’ assertions were incorrect. Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009. After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference.

On October 9, 2009, Plaintiffs’ counsel sent a letter to counsel for The AP and counsel for Mannie Garcia notifying them of the situation and of the need to amend Plaintiffs’ pleadings accordingly. Plaintiffs’ counsel enclosed proposed amendments with that letter, and specifically advised counsel for The AP and Mr. Garcia that Plaintiffs no longer contend Mr. Fairey used the Clooney Photograph in creating the Obama Works at issue in this case and that Plaintiffs do not deny he used the Obama Photograph. In this letter, Plaintiffs’ counsel also informed opposing counsel that Plaintiffs no longer contend that certain documents Plaintiffs produced in discovery (bearing Bates numbers FAIREY00669 through FAIREY00672) were used in the creation of the Obama Works, and that Mr. Fairey had created these documents in 2009, after the original complaint was filed in this matter. Plaintiffs’ counsel also produced additional documents (bearing Bates numbers FAIREY104735 through FAIREY104766) and explained that Mr. Fairey had attempted to delete some or all of these documents at or around the same time he created the documents bearing Bates numbers FAIREY00669 through FAIREY00672, but that he had been unsuccessful in deleting all copies of them. Finally, the letter corrected certain misstatements Plaintiffs’ counsel had previously made (understanding them to have been true at the time) while meeting and conferring on discovery.

Plaintiffs therefore respectfully request that the Court grant their motion to amend their pleadings in light of the information above.

DATED: October 16, 2009 Respectfully Submitted,
/s/
Anthony T. Falzone (admitted pro hac vice)
Julie A. Ahrens (JA0372)
Stanford Law School
Center for Internet and Society
559 Nathan Abbott Way
Stanford, CA 94305
Telephone: (650) 736-9050
Facsimile: (650) 723-4426
Email: falzone@stanford.edu

Mark Lemley (admitted pro hac vice)
Joseph C. Gratz (admitted pro hac vice)
Durie Tangri LLP
332 Pine Street, Suite 200
San Francisco, CA 94104
Telephone: (415) 362-6666
Email: mlemley@durietangri.com
Attorneys for Plaintiffs and Counterclaim
Defendants

Photographs and International Copyright Issues

The below case cite is to a decision from the U.S. Court for the District of Delaware that held that a photograph posted on the Internet from a foreign server is not a “United States work” within the meaning of section 411 of the Copyright Act, and thus needs not be registered in the U.S. in order to bring suit for infringement.

Moberg v. 33T LLC, Civil No. 08-625(NLH)(JS) (D. Del. Oct. 6, 2009).

Shepard Fairey Motion to Amend Exhibits

The Exhibits to the Motion to Amend may be found at: http://www.ap.org/iprights/fairey.html.

October 21, 2009

AP's Response to Fairey's Motion

AP's Motion to Amend the Pleadings and exhibits thereto are available at: http://www.ap.org/iprights/fairey.html.

About October 2009

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in October 2009. They are listed from oldest to newest.

September 2009 is the previous archive.

November 2009 is the next archive.

Many more can be found on the main index page or by looking through the archives.