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.

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.

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.

Copyright, copyright, copyright. It’s all copyright. Writing, sculpture, photographic images, paintings, a postage stamp. The Little Mermaid, web aggregators, J.D. Salinger, Mannie Garcia, Shepard Fairey, the Associated Press, Patrick Cariou, Richard Prince, Frank Gaylord, the United States Post Office: all involved in a copyright dispute of some sort. To say that heightened awareness of copyright issues is due in large part to the internet is an understatement. Realistically speaking, original creators are realizing the financial potential of their creations and, unlike before, the nice-guy attitude is relinquished, and rightly so. It is time that a nation founded on property principles revisits the dilapidated state of its property rights, primarily those of intellectual property. It is time that congress and courts restore to property owners their constitutional right to exploit or dispose of their property as they see fit.

This is not to say that all uses or transformations of an original artist’s work should be criminalized or made unlawful, but rather that the courts should look with utmost caution and skepticism at the secondary production and rigorously question the ease with which it was produced. It has become much too facile for artists to wake to a cup of coffee and sit at their desktops, click on Google Images and steal away. If the argument is that the internet has in fact heightened the mass dissemination of images, sounds, and texts, then it logically follows that finding the original author and creator is just as simple. Most websites have contact information for their creators and editors. Why can’t secondary users contact the original creators and ask for permission, license or, simply put, ask for an outright sale of the work?

And why the selective reasoning by artists on the applicability of fair use: the continued insistence that it’s ok to steal from someone else yet no one else better steal from me? Does this self-entitlement to anyone’s cultural goods hinge on the classist and elitist distinction made between fine artist and craftsman, between contemporary artist and technician? Isn’t this the same distinction that many of the artists siding with Shepard Fairey and the U.S. Post office helped to deconstruct: the blurring of craft and high-art? What makes Frank Gaylord (the sculptor and copyright owner of the Korean War Veteran’s Memorial) and Mannie Garcia (the photographer who shot the Obama image for the AP) any less of an artist? Should a “strict scrutiny” style structure be applied to “fair use,” favoring original authors and creators, regardless of their standing on the artist/craftsman scale? It’s time that U.S. courts put an end to the belief by many that it’s ok to make a bountiful living off the work of someone else.

How Will I Laugh Tomorrow?

While museums continue to suffer closings, layoffs and cutbacks, the College Art Association initiates an anti-deaccessioning petition. This position is absurd at best and irresponsible at worst. Donors will continue to gift artworks to museums and public art institutions regardless of deaccessioning. Barring a flop by Obama and the states on tax-deductible donations, the incentives (financial and tax-wise) are and will remain highly lucrative for and beneficial to donors. The financial calamity we have experienced should tell us that if the general “public” is skeptical of funding a nation-wide healthy system, they are most certainly against any further funding of the arts through higher taxes. There are more than enough ethical and legal arguments for allowing museums and public art institutions to deaccession artworks for general and operating support. Among these of course is a constitutional right of a property owner to exploit and dispose of her property as she sees fit. Barring any unbreakable donor intent clauses or other legal restrictions, if the gifted artwork is the sole property of a museum, it stands to reason that it is the museum, as property owner, that has sole discretion of the artwork’s use. The continued idealization of art and of artworks as existing outside a capitalist profit-driven structure and the perverse negation of its commercial status will only further the demise of its production and its reception.