Less Hope For Shepard Fairey In Obama Hope Poster Case?

If the street artistShepard Fairey, initially thought the copyright litigationover the Obama Hope poster would be a good-natured pillow fight with the Associated Press, he probably knew that it was going to get ugly once it came to light that he was less than truthful to the court in representing which photograph he used to create the Hope poster.

Mr. Fairey sued the AP last year asking the court to declare that the Hope poster does not infringe any of the AP’s rights.  The AP countersued for copyright infringement and others have joined or been brought in as well.  It is now getting uglier for Mr. Fairey.  An earlier post describes Mr. Fairey’s confession, but the saga continues. The court has shown that it is receptive to allowing discovery not just on which photograph Mr. Fairey actually used, but also on making him name names.

Specifically, Judge Alvin Hellerstein ruled on April 5, 2010 that Mr. Fairey must disclose who was involved in destroying documents in an effort to hide how the Hope poster was actually created:  “Plaintiffs shall disclose the identities of those who did the deletion and destruction and of those who knew about such deletion and destruction.”  Mr. Fairey will have to disclose who performed the destruction, who supervised it and who knew about the destruction.

The court’s April 5th order itself may not elicit much excitement, but it raises several questions:  why did the court agree to allow discovery on the destruction of documents?  Although documents bearing on the creation of the Hope poster would be relevant, Mr. Fairey has already admitted that he used the photograph that the AP believed he used.  Does the discovery go to potential sanctions against Mr. Fairey and others who assisted in the destruction of documents?  If so, does the court intend to impose sanctions on top of the related criminal investigation?  Is such discovery relevant to undercut Mr. Fairey’s fair use defense?  Neither the court’s order nor the joint letter that the parties submitted to the court address the relevancy of the discovery.

Regardless, the potential that others may have helped destroy documents on Mr. Fairey’s behalf means that we may have more twists and turns to come in this case.

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About Dave Rein

Dave Rein focuses on and will continue to focus on copyright, trademark and patent litigation until the National Geographic adds him to its staff of photographers. In addition to counseling and litigating on behalf of the firm’s clients, he also helps clients through the Kansas City Volunteer Lawyers and Accountants for the Arts where he also serves as a board member. Prior to representing clients, Dave clerked for a federal district court judge who kindly provided invaluable advice and mentorship
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