Saturday, August 30, 2014
 


AP Files Amended Countersuit Against Fairey; Claims Fairey Continues to Fabricate Lies

Just released by the Associated Press.  

The Associated Press today filed a motion seeking to amend its Answer, Affirmative Defenses and Counterclaims from last March in the lawsuit filed against the news cooperative by Shepard Fairey and Obey Giant Art, Inc., based on Fairey’s recent revelations that he fabricated and destroyed, or attempted to destroy relevant evidence and other newly discovered information in the lawsuit. The AP disputes Fairey’s most recent allegations that he made a “mistake” about which AP photo he used to create the Obama Hope poster, saying such allegations are “simply not credible.” The filing was made with the U.S. District Court for the Southern District of New York.

Fairey was only forced to admit to the spoliation and fabrication of evidence after the AP spent months pressing Fairey in discovery and had found evidence that files were missing from Fairey’s production of documents.  As AP contends, only after catching him red-handed, did Fairey admit to his wrongdoing.

The AP also believes that Fairey has now concocted another story — that he was “mistaken” — to spin those bad acts in the best light possible to the Court and the public.  

“It is simply not credible that Fairey somehow forgot in January 2009 which source image he used to create the Infringing Works, which were completed only a year earlier in January 2008,” today’s filing says.

 “It also strains credulity that an experienced graphic designer such as Shepard Fairey misremembered cropping George Clooney out of a source image and making other changes … when no such cropping or other changes were ever made.” 

When AP first contacted Fairey about the use of AP’s photo, AP made clear that it believed Fairey had infringed the 2006 close-up photo of then-Sen. Barack Obama.  “Nevertheless, Fairey filed his claims apparently without first investigating the relevant records as one would have expected him to do, making the idea that he made a genuine ‘mistake’ even more suspect,” said AP Associate General Counsel Laura Malone. 

As part of today’s filing, AP also included an Oct. 9, 2009 letter sent to AP’s attorneys by Fairey’s lawyers, lead counsel Anthony Falzone, of the Stanford Fair Use Project, and Joseph Gratz, of the Durie Tangri law firm. In the letter, the lawyers advised AP for the first time that Fairey had not only “attempted to delete” evidence indicating which AP photograph he used in illustrating the poster, but also had fabricated evidence after he sued AP last February.  

In addition, AP’s proposed amended counterclaims add Obey Clothing, which is the exclusive licensee of Fairey’s trademarks and designs on clothing, as a counterclaim defendant.  AP also has added new allegations based on recently obtained evidence that counter Fairey’s claims that he has not profited from use of the AP image. The new allegations reveal commercial exploitation of the image by Fairey and his network of companies, on T-shirts and other merchandise.  

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.

You can read the AP’s federal court filings here. Regarding Mannie Garcia’s position vis-a-vis these new developments, the AP continues to assert that Garcia was an employee when he took both the Obama close-up photo and the Obama photo with George Clooney.

 

Another Bombshell Drops on Fairey

To the question, “why did Fairey all of a sudden have a change of heart?”, the answer, according to The American Lawyer, is quite simply that he didn’t.

Kirkland & Ellis partner Dale Cendali says the fuse that set off Fairey’s bombshell revelations was lit two weeks ago. That’s when The AP’s legal team, which also includes Kirkland’s Claudia Ray, confronted Fairey’s lawyers with “trace evidence” that the artist wasn’t being entirely forthcoming in the discovery process. In short, Cendali says, something that was turned over indicated that other items were being withheld.

Cendali says the evidence that she and her team turned up proved that Fairey was not telling the truth about which Garcia photo he used.

Armed with that information, the AP lawyers contacted Fairey’s legal team—led by Anthony Falzone, executive director of Stanford University’s Fair Use Project—on Oct. 2 with a demand that the missing material be turned over. [italics and bold mine]

The AP is expected to file its own amended pleadings and complaint in federal court today, according to spokesman Paul Colford.

Read more from The American Lawyer here.

 

Investigation at San Francisco Art Institute

The American Association of University Professors’ (AAUP) general secretary has authorized an investigation into issues of academic freedom, tenure, and due process posed by the release of numerous tenured professors on grounds of financial exigency at the art institute.
The committee will visit the institution where the event(s) under investigation occurred, meet with the principal parties, and prepare a report for submission to the AAUP’s national Committee A on Academic Freedom and Tenure. The investigating committee’s draft report will recount the facts of the case, and sets forth conclusions as to whether the actions of the administration were in procedural and substantive compliance with the principles and standards supported by the Association.
 

What Can Happen to Shepard Fairey?

What are the consequences to Shepard Fairey’s recent actions? Aside from the fact that he only strengthened the image of artists as clowns and buffoons in the eyes of judges and lawyers, Fairey’s recent actions could earn him serious consequences.

So what can happen? All sorts of bad things can happen under the Federal Rules of Civil Procedure. If a plaintiff fabricated and destroyed evidence, he can have judgment entered against him dismissing his case; if it was the defendant who fabricated and destroyed evidence, he can have judgement entered against him holding him liable on the merits of the claim. The fabricating/destroying party could be ordered to pay the costs incurred by the other party as the result of the misconduct, and a party could be held in contempt, as was the defendant in Jones v. Clinton (although technically civil contempt is inappropriate if the previously withheld information has been produced). Title 28 of the United States Code, Section 1927 also provides for counsel to be held liable for causing excessive costs.

But this isn’t it. There may also be criminal sanctions — obstruction of justice, perjury, and false statements come to mind. Or criminal contempt. The Department of Justice may find this of interest.

Shepard Fairey has posted his thoughts on his website, where he admits to the following:

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.

 

Shepard Fairey Admits He Sued AP Under False Pretenses

ap.fairey.lawsuit

This statement was sent to Clancco.com at 9:20pm EST, from the Associated Press.

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.

You can access court filings and a timeline of Shepard Fairey’s statements Read the rest of this entry »

 

’til Death Do Us Part

donorcard

During yesterday’s Frieze Art Fair, artist Carey Young signed a limited edition art project called, Donorcard – a version of the wallet-sized British organ donor card.  Visitors were able to take a card for free with the requirement that they countersign it in order for the donorcard to become art. From then on, the owners and the artist enter into a contract, which ends only with the death of the artist and/or the owner.  In a seemingly symbolic gesture, the artist attempts to make the artwork viable as an artwork only during the life of the artist and owner.

 

Huffington Post: “Censorship at Yale, and Now London?”

brooke.princeThe Huffington Post has a few thoughts today on the recent Richard Prince censorship scandal over at the Tate Modern.
 
Can the removal simply be attributed to the professional vigilance of the London police’s Obscene Publications Unit? The work of overzealous monitors of public morality? Perhaps. But then again, perhaps not. Or perhaps something far more sinister, a willful censorship, striking at the very heart of artistic creativity and ultimately at our basic freedoms of expression.

The pointed question arises, why banishment in London, and why not in New York or Minneapolis or myriad other locales? Is it because the London that once was, is no longer the London of today. That it is a city whose constituency and fabric has altered dramatically in recent times. A city that has had as its mayor and has been formed in part by one Ken Livingstone, whose ideology would be well suited to what Kimball terms “pre-emptive capitulation” that forfeit the prerogatives of truth for the dubious satisfactions of multicultural self-righteousness. Where draconian aspects of Shariah law filter through, purposely losing sight that living in a modern, secular democracy there is always plenty of offense to go around. That is what has happened to Yale. If now London, where next?

Read more from the Post here.

 
 
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