Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Judge refuses to sanction Shepard Fairey.
The common wisdom seems to be that the judge in Shepard Fairey’s lawsuit with AP and Manny Garcia over the use Fairey made of Garcia’s photo in creating the Obama Hope poster would be sanctioned for having lied during the course of the lawsuit about knowing he used the photo that was
identified in February 2009 as his source. The sanctions could range from monetary “fines” all the way up to ruling against Fairey without ever having determined the legitimacy of his legal claims. But earlier this week the judge, Alvin K. Hellerstein, issued an order in which he denied AP’s pending motion for sanctions. The order states that AP has engaged in an “endless quest” for information from Fairey in an effort to pin him down. At the same time, the judge acknowledged that Fairey’s carefully phrased answers to questions and his earlier dishonesty would be left to be judged for themselves during trial: ”The Associated Press, in its effort to pin down Fairey, has engaged in an endless quest for discovery. If there has been willfulness, it will be proved at trial through Fairey’s evasiveness.”
August 6th, 2010 at 12:20 pm
Peter –
I think it’s really misleading to suggest, as you do in your post, that the judge has decided not to sanction Fairey “for having lied during the course of the lawsuit about knowing he used the photo that was identified in February 2009 as his source.” While unfortunately the 7-19-10 letter that resulted in the 8-2-10 order to which you link is not available on PACER, it seems clear that the sanctions referenced in the order were specifically about the routine discovery dispute addressed elsewhere in the order. As you know, parties routinely request sanctions under Rule 37 when they move to compel discovery responses.
In the very post of mine to which you link, I note that Judge Hellerstein said that he will address sanctions for Fairey’s (admitted) lies and evidence tampering/manufacturing *after* the resolution of the case on the merits:
“A transcript of a Nov. 10, 2009 hearing in the case sheds light on how Judge Hellerstein plans to deal with Fairey’s transgressions. It’s clear that Hellerstein views Fairey’s misdeeds as “serious,” and that he will impose sanctions of some kind. But it seems doubtful that the sanctions will include issue, evidentiary, or terminating sanctions, which would actually affect the outcome of the case: “I want this case to be concluded on the merits and then we’ll get into this,” i.e., sanctions for Fairey’s wrongdoing. And Hellerstein made clear that he plans to sanction Fairey even if the case settles: “[I]f the case is settled in some fashion, I don’t want this issue to be settled.” Of course, the AP still argues that Fairey’s lies and evidence creation and attempted destruction are relevant to the fair use analysis because they demonstrate his bad faith. See Harper & Row v. Nation (fair use “presupposes good faith and fair dealing”) and cases cited at p. 24 of the AP’s brief.”
August 6th, 2010 at 4:46 pm
Ben — I apologize for being misleading. Thank you for clarifying matters.
August 9th, 2010 at 11:57 am
Thanks, Peter. I think the judge made it pretty clear back at that 11-19-09 hearing that he does intend to sanction Fairey for the lying/evidence destruction/tampering, but only *after* the merits of the copyright case case are resolved.
August 9th, 2010 at 4:54 pm
[...] it’s interesting to note that, last week, apparently, a judge (surprisingly) denied the AP’s request for sanctions against Fiarey for some of his actions during this case. That seems like fairly big news in the case, but if you [...]