Friday, May 28, 2010

Court: AP 'is going to win' Shepard Fairey case

The judge presiding over the copyright dispute between the Associated Press and Shepard Fairey regarding the "Obama Hope" poster today indicated that the AP "is going to win" the case, and urged the parties to settle. According to the AP's report:

Federal Judge Alvin Hellerstein said Friday at a hearing in New York that he has a feeling that "whether it's sooner or later, The Associated Press is going to win" the case.

He suggested that artist Shepard Fairey and the news organization move on to settlement talks and consider dropping penalties. Neither side seemed ready to do so.

AP lawyer Dale Cendali says the news organization wants to make it clear that the AP owns the copyright to the photograph that Fairey used to create the "HOPE" poster and that he violated the copyright.

As far as I'm aware (unless it was changed at today's status conference), the parties' summary judgment motions on liability are still due July 26.

Update: A later report by the AP includes the following:

U.S. District Judge Alvin Hellerstein made the suggestion at a hearing in which he ordered Fairey's lawyers to turn over records of communications Fairey had with his lawyers before he sued the AP in February 2009. He also said AP lawyers can depose Fairey a second time.

While it's hard to say for sure what happened without seeing a transcript (which I haven't), it appears the AP's attorneys successfully invoked the crime-fraud exception to the attorney-client privilege to get at the the communications between Fairey and his lawyers. As background, Fairey is under federal criminal investigation for perjury and evidence tampering, based on his admitted falsehoods regarding which photograph he used as a basis for the "Obama Hope" poster.

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