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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

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.

February 1, 2013

How to Value a Celebrity Athlete's Right of Publicity

Beyond the Field of Play:
Analyzing and Valuing a Celebrity Athlete's Rights of Publicity

By CONSOR Intellectual Asset Management

The Right of Publicity (ROP) is "the inherent right of every human being to control the commercial use of his or her identity." (Thomas McCarthy, Rights of Publicity and Privacy, 1:3)

However, unlike patent,trademark, and copyright law, ROP is governed by a patchwork of state statutes and common-law decisions, rather than by a single federal statute (Thomas McCarthy, Rights of Publicity and Privacy, 6:3, 6:8); and unlike trade secret law, ROP is not the subject of a uniform state law adopted in the vast majority of states.( Roger M. Milgram, Milgram on Trade Secrets 1.01[2][b]) As with the analysis of other intellectual property assets, ROP valuations need to consider the unique characteristics of the subject asset and the context of the valuation assignment.

Typically, ROP valuation assignments are needed for one of three reasons: when negotiating a transaction (such as endorsements and licensing); calculating infringement damages for ROP violations; or valuing celebrity estates and trusts. Each ROP asset is unique and each of these contexts varies, posing some unique challenges for reasonable analyses of ROP assets.

Read the complete article (PDF)

June 26, 2014

MA Senate Passes Post-Mortem Right of Publicity Bill

By Barry Werbin

The Massachusetts Senate has passed a bill (S. 2022) that approves a post-mortem right of publicity for Massachusetts residents. The bill would apply to a person's name, likeness and character if it has commercial value, and extend protection for 70 years after the celebrity's death. Such rights would pass to the person's heirs or an entity that was representing the individual. The bill was supported by actor Bill Cosby, who is a resident of Massachusetts. It still must be approved by the Massachusetts House.

The text of the bill is available here: https://malegislature.gov/Bills/188/Senate/S2022.

September 30, 2015

Defamation 2.0 - Defamation Liabilities for Internet Operators in Hong Kong


By David Ma

Unlike in the U.S. (with the Communications Decency Act, §230, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider") and the U.K. (with the Defamation Act 2013, § 5(2), "It is a defence for the [website] operator to show that it was not the operator who posted the statement on the website"), internet operators in Hong Kong do not receive statutory protection from defamation. This blog reviews the findings in recent Hong Kong cases.

(1) Internet Forum Operator

An internet forum operator that actively encourages user postings is different from a notice board owner ambushed with a defamatory message in trespass. (For example, Byrne v Deane [1937] 1 KB 818) The operator, unlike a post office or a telephone company, is not a mere conduit or passive facilitator. However, the operator would not be deemed to have authorized defamatory posts if it lays down rules prohibiting offending contents, despite inefficient enforcement.

A forum operator is a publisher, as it provides the platform for the postings. However, as long as it does not know of the gist or substance of the postings and cannot prevent their publication, it would be considered a subordinate, rather than a primary publisher. As a subordinate publisher, the operator would qualify for the innocent dissemination defense if (a) it exercises reasonable care and is not aware of the defamatory content, and (b) upon notice promptly takes "all reasonable steps to remove the offending content from circulation as soon as reasonably practicable". (Oriental Press v Fevaworks [2013] HKCFA 47)

(2) Content Aggregator

Posting hyperlinks onto a website is not equivalent to publishing the defamatory content contained in the hyperlinks. The former act does not fall within the strict publication rule. Mere linking is content neutral and analogous to having a footnote bringing attention to readers that a source existed, without repeating the content.

However, the situation is different if there is a deliberate act to make defamatory information readily available to a third party in comprehensible form, i.e. by deep linking, with actual receipt by a third party. (Crookes v Newton [2011] 3 SCR 269 (Supreme Court of Canada), as cited in Fevaworks) Content aggregators reproducing excerpts from and hyperlinking to external sources may attract publisher liabilities if the excerpts contain defamatory wording.

(3) Search Engine Operator

(a) Basic search engine (Edmond Yeung v Google (Hong Kong) Limited DCCJ 4322 of 2013)

A search engine operator that displays snippets of information with hyperlinks generated from automatic algorithmic web-crawling is a facilitator and not a publisher, on the basis of authorship or acquiescence. This is so because there is no human input from the operator, no control over search terms typed in by future users, and no mental element for publishing on the part of the operator.

As long as the search engine has a notice and takedown procedure and makes reasonable efforts in complying with legitimate requests, "it is hardly possible to fix [the search engine operator] with liability on the basis of authorisation, approval or acquiescence". (Metropolitan International Schools v Designtechnica [2009] EWHC 1765 (QB), as cited in Edmond Yeung, at paragraph 58)

(b) Autocomplete and related searches

Although there is no human input, "autocomplete" and "related searches" functions go beyond mere crawling and automatic reproduction of snippets and hyperlinks. By aggregating prior user searches and generating predictive keywords, the search engine operator may have ventured from the territory of a mere conduit or a passive facilitator into that of a publisher. The matter will likely receive further judicial attention in the near future.


September 13, 2016

AME Awards® 2017 Competition

The AME Awards® competition is now accepting entries for the 2017 competition. Since 1994, the AME Awards® has honored campaigns worldwide that successfully demonstrate groundbreaking solutions to challenging marketing problems.

"The 2017 AME Awards® continues its 23-year tradition of showcasing brilliant creative delivering measurable results," said Deb Ryan, newly appointed Executive Director of the AME Awards®, "and AME diligently monitors the industry to provide relevant categories that mirror evolving creative industry trends across all platforms."

For 2017 competition, the AME Awards® unveiled a new category to showcase Olympic-themed advertising and marketing created for the 2016 Summer Olympics in Rio. This additional category compliments AME's robust category roster that included Technology in the Product & Services category group, which was added last year to showcase digital advertising and marketing applications utilized within the advertising industry to drive consumer engagement. The AME Awards rigorous monitoring of global technological advancements led the competition to previously launch categories in Augmented Reality and Social TV.

"AME's global Grand Jury is comprised of five regional juries, allowing entries to be judged with cultural relevance within their own region by jurors with the most up to date knowledge of that particular market.", said Ms. Ryan. "Entrants can be sure that their creative work is given the utmost attention and that all award-winning work is worthy of being called the World's Best Advertising & Marketing Effectiveness℠."

The AME Awards® Grand Jury is responsible for awarding Gold, Silver, and Bronze to the highest scoring entries through two rounds of regional judging to ensure scoring accounts for cultural and economic relevance. The Grand Jury also selects the AME Green Award winner -- the highest scoring, Gold-winning entry for a company whose emphasis is on resource conservation and negative environmental impact. Gold-winning works from all regions are judged by the full international Grand Jury to determine a Platinum Award for each of the five regions (North America, Latin America, Europe, Middle East & Africa and Asia Pacific) and the International Grand AME Award.

The 2017 AME Grand Jury of interactive and multidisciplinary marketers, media planners, strategy directors, social media experts, and creative directors will evaluate entries based on four specific criteria, each weighted by importance: Challenge/Strategy/Objectives - 20%; Creativity - 25%; Execution - 25%; and Results/Effectiveness - 30%.

In 2016, the AME Grand Jury presented the AME Grand Award and Regional Platinum Award/Europe to Grabarz & Partner/GGH Lowe Germany for its campaign "Nazis Against Nazis - Germany's Most Involuntary Charity Walk" for client ZDK Zentrum Demokratische Kultur. Leo Burnett Melbourne earned 2016 AME Regional Platinum Award/Asia-Pacific for "#MyFamilyCan" for client SPC. BBDO New York was honored with the 2016 AME Regional Platinum Award for "Vines in the Real World: Making the Digital Analog" for client Lowe's Companies. Impact BBDO Cairo earned the 2016 AME Regional Platinum Award for "Everyday Hero" for Sting, PepsiCo's energy drink.

The deadline to enter the 2017 AME Awards is October 31, 2016. Entry details and competition rules and regulations can be found on the AME website, at www.ameawards.com.

February 7, 2018

Defamation, Right of Publicity and Sovereign Immunity

By Barry Skidelsky
Edited by Elissa D. Hecker

The above issues and more were implicated in a recent case involving a photograph of a woman. The photo was licensed by Getty Images ("Getty") to the New York State Division of Human Rights ("DHR"), in connection with DHR's public service announcement ("PSA") campaign intended to enhance public awareness that HIV-positive New Yorkers should not be the targets of discrimination.

The photographer, who originally took the woman's picture in connection with an online magazine article about New Yorkers' music interests, later sold the photograph to Getty without the woman's knowledge or consent. The photographer had also neglected to obtain a release from the woman, and in turn Getty mistakenly led DHR to believe that she had signed one.

Failures by each of those involved to conduct proper due diligence, if not to consult with counsel before the you-know-what hit the fan, obviously contributed to the creation of a messy situation. A friend of the woman saw the advertisement in print, and alerted her to its existence (including the implication that the woman had AIDS). The woman then commenced litigation against New York State in the NY Court of Claims. That court granted her motion for summary judgment on the issue of liability on her defamation "per se" and Civil Rights Law §50 and §51 claims.

New York State then appealed. On appeal, the First Department modified to deny the Claimant summary judgment on her Civil Rights Law claims, to grant New York State summary judgment dismissing those claims, and to grant New York State summary judgment dismissing the standard defamation claim. In part, the appellate court held that the State of New York is entitled to sovereign immunity against the Civil Rights Law claims asserted.

The case is interesting for this and other reasons, including additional matters of interpretation regarding New York State's Right of Publicity as embodied in the Civil Rights Law (a proposed modification of which is currently pending before the New York State legislature), differences between per se and standard defamation, and whether people with HIV or AIDS have a "loathsome disease."

See Nolan v. State of New York, 2018 NY Slip Op 00269 (decided January 16, 2018): http://nycourts.gov/reporter/3dseries/2018/2018_00269.htm

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