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.