Fairey et al v. The Associated Press
SUMMARY ORDER: The AP's motion is denied in part and granted in part. Genuine issues of material fact exist on the issues (i) whether Shepard Fairey's rendering of Barack Obama is "substantially similar" to the AP's photograph; and (ii) whether One 3 Two is liable for a violation of the DMCA. I hold, however, that should the AP establish copyright infringement, One 3 Two does not have a basis to rebut the finding on the ground of fair use. I therefore grant the motion insofar as it seeks to pare the fair-use defense away from the case, but otherwise deny it. One 3 Two's motion is denied. As stated, genuine issues of material fact exist on the issue whether Shepard Fairey created an image that infringes the AP's copyright, as well as on the issue whether One 3 Two, as Fairey's licensee via Obey Giant Art, LLC, is liable for infringement. Genuine issues ofmaterial fact also exist on the issues whether One 3 Two is liable for offending the DMCA, and whether One 3 Two is liable for indirect profits. The parties shall appear for the previously scheduled final pretrial conference beginning 10:00arn on March 16, 2011. By March 11, 2011, at 4:00pm EST, the parties shall submit any pretrial motions. Failure to submit a motion at that time shall constitute waiver. The parties' requested jury voir dire questions and charges are due at the beginning of the final pretrial conference.On a related note, the parties have sought to file certain submissions under seal, or alternatively to remove them from the record. Within one week ofthis Order, the parties shall submit a joint letter describing (i) which materials they wish to withdraw from the record and (ii) which things they would like to remain and be sealed. As to point (ii), the parties shall set forth justifications why any materials need to be sealed. The pending motion to strike is denied as moot. The Clerk shall terminate the motions (Doc. Nos. 147,148, and 190). ORDER denying 147 Motion for Summary Judgment; granting in part and denying in part 148 Motion for Summary Judgment; finding as moot 190 Motion to Strike. (Signed by Judge Alvin K. Hellerstein on 2/17/11) (db)
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