Fairey et al v. The Associated Press

Filing 201

MOTION in Limine NOTICE OF MOTION IN LIMINE NO. 1 TO EXCLUDE ALL EVIDENCE AND TESTIMONY CONCERNING INDIRECT PROFITS. Document filed by One 3 Two, Inc..(Crowther, Robyn)

Fairey et al v. The Associated Press

Doc. 201

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SHEPARD FAIREY AND OBEY GIANT ART, INC., Plaintiffs, v. THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff, v. SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC, STUDIO NUMBER ONE, INC., and ONE 3 TWO, INC. (d/b/a OBEY CLOTHING), Counterclaim Defendants. COUNTERCLAIM DEFENDANT ONE 3 TWO, INC.'S NOTICE OF MOTION IN LIMINE NO. 1 TO EXCLUDE ALL EVIDENCE AND TESTIMONY CONCERNING INDIRECT PROFITS ECF Case No. 09-01123 (AKH)

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that upon the accompanying memorandum of law, Counterclaim Defendant One 3 Two, Inc. d/b/a Obey Clothing ("One 3 Two") will move, before the honorable Alvin K. Hellerstein, United States District Judge at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., Courtroom 14D, New York, New York 10007, on March 16, 2011 at 10:00 a.m., to exclude evidence and argument relating to communications by One 3 Two and Fairey (and his affiliated companies) concerning indirect profits (i.e., profits that were not derived from the sale of the merchandise featuring the allegedly infringing Obama Image created by Shepard Fairey). One 3 Two moves in limine to exclude this evidence on

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grounds that Plaintiff The Associated Press (the "AP") has failed to meet its threshold burden of establishing a causal link between the sale of the t-shirts and sweatshirts featuring the Obama Image (the "Obama Merchandise") and the sales of other One 3 Two merchandise, which includes accessories, jewelry, and handbags which have no identifiable artwork by Fairey, among other things. Any such evidence in support of indirect profits is accordingly inadmissible because it is irrelevant under Federal Rules of Evidence 401 and 402 and the risk of unfair prejudice substantially outweighs any probative value under Federal Rule of Evidence 403.

Dated February 25, 2011 Los Angeles, California

Respectfully submitted, By: /s/ Robyn C. Crowther

Robyn C. Crowther Jeanne A. Fugate Laurie C. Martindale Caldwell Leslie & Proctor, PC 1000 Wilshire Boulevard, Suite 600 Los Angeles, California 90017-2463 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Theresa Trzaskoma Charles Michael Brune & Richard LLP One Battery Park Plaza, 34th Floor New York, NY 10004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Counterclaim Defendant One 3 Two, Inc. (d/b/a Obey Clothing)

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