H. Brian Holland, Associate Professor of Law at Texas Wesleyan School of Law, is publishing Social Semiotics in the Fair Use Analysis in a forthcoming issue of the Harvard Journal of Law and Technology. I haven’t had time to read it yet, but here’s a bit from the abstract.

This article presents an argument for an expansion of fair use, based not on theories of authorship or rights of autonomy but rather on a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this matter for the purpose of a fair use analysis based on a claim of transformativeness?

You may access the article here.

Not sure where this is going, but according to the Boston Herald, Judge Alvin Hellerstein, presiding over the Shepard Fairey vs. Associated Press lawsuit, said today 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.”

With this in my back pocket, and I’m the AP, I don’t think I would settle. In fact, it’s surprising that Fairey doesn’t take the “hint” that he’s likely to lose, and lose badly in terms of monetary damages. Not only that, but for those that are looking for a restriction or narrowing of the already loose fair use standards, this case could be a gift from heaven (and a nightmare for the “free culture” tea party movement).

Seems like the AP is on a similar wavelength. The AP’s 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.”

Via the Boston Herald. More from the Village Voice here.

Update: June 1, 2010

Shepard Fairey lawyer says fair-use case isn’t over yet.

I’m sure I’m not the only one who noticed the main image in today’s front section of the New York Times. The image (seen above on our site) captures a store in Beijing selling notebooks. On the lower right quadrant is a notebook with a front cover image featuring Shepard Fairey’s “Hope” poster. Aside from obvious proof of global piracy and infringement, a couple of questions come to mind: whose copyright is the young woman in the picture infringing, the AP’s, Mannie Garcia’s, or Shepard Fairey’s copyright? Assuming the Associated Press or Mannie Garcia ends up winning the court battle over Fairey’s use of the AP’s photograph, is Fairey liable for making the “Hope” image available for further global infringement? I’m going to research this, but if anyone knows the answer to the second question, please e-mail me at sergio_sarmiento@clancco.com.

U.S. District Judge Alvin K. Hellerstein granted artist Shepard Fairey’s request to change lawyers. Judge Hellerstein did stipulate that Fairey can be questioned by lawyers on why he changed his story about which 2006 photograph he used to create the famous Barack Obama HOPE poster.

Hellerstein also stated that he had “never seen anything like this,” calling Fairey’s actions a ”serious transgression.” Hellerstein allowed the switch because he wanted “this case to be decided on the merits.”

The Associated Press has asked a federal judge to deny a request by the attorneys of street artist Shepard Fairey to withdraw as his legal counsel.

According to the Boston Globe,

Last Thursday, Stanford’s Fair Use Project asked the Southern District of New York that they be allowed to withdraw from representing their client, Shepard Fairey. The motion identifies the lawyers who would take over the case as Jones Day partner Geoffrey Stewart, William Fisher III, director of the Berkman Center for Internet and Society at Harvard University, and John Palfrey, a professor and vice dean at Harvard Law School. The parties are due back in court this coming Thursday for a status conference.

The AmLaw Daily has more here.

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.

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.

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.

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 here, made available by the Associated Press.