Fairey et al v. The Associated Press

Filing 231

MEMORANDUM OF LAW in Support re: 230 MOTION in Limine No. 3 to Exclude Evidence of Fairey"s use of Rubylith and for an Adverse Inference.. Document filed by Shepard Fairey, The Associated Press. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Cendali, Dale)

Fairey et al v. The Associated Press

Doc. 231 Att. 1

EXHIBIT A TO THE AP'S MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE OF FAIREY'S USE OF RUBYLITH AND FOR AN ADVERSE INFERENCE

Dockets.Justia.com

Frank Shepard Fairey
1 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

March 16, 2010

S. Fairey UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs, v. Civil Action No. 09-01123(AKH) THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff, v. SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC and STUDIO NUMBER ONE, INC. Counterclaim Defendants. and MANNIE GARCIA, Defendant, Counterclaim Plaintiff and Cross Claim Plaintiff/Defendant, vs. SHEPARD FAIREY and OBEY GIANT ART, INC., Counterclaim Defendants, and THE ASSOCIATED PRESS, Cross Claim Plaintiff/Defendant ------------------------------x FRANK SHEPARD FAIREY New York, New York Tuesday, March 16, 2010 Reported by: Steven Neil Cohen, RPR Job No. 308009

S. Fairey APPEARANCES JONES DAY 51 Louisiana Avenue N.W. Washington, D.C. 20001-2113 Attorneys for Plaintiff BY: GEOFFREY S. STEWART, ESQ. MEIR FEDER, ESQ. KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022 Attorneys for Defendant BY: DALE CENDALI, ESQ. BRENDAN T. KEHOE, ESQ. BLAIR A. SILVER, ESQ. CALDWELL LESLIE & PROCTOR, ESQS. 1000 Wilshire Boulevard Suite 600 Los Angeles, California 90017 Attorneys for Counterclaim Defendant 132 Inc. BY: ROBYN D. CROWTHER, ESQ.
4
S. Fairey KILE GOEKJIAN REED & McMANUS PLLC 1200 New Hampshire Avenue NW Suite 570 Washington, DC 20036 Attorneys for Manny Garcia BY: BRADFORD E. KILE, ESQ. LANKLER SIFFERT & WHOL LLP 500 Fifth Avenue New York, New York 10110-3398 Attorneys for Shepard Fairey BY: DANIEL M. GITNER, ESQ. ABIGAIL E. ROSEN, ESQ. ALSO PRESENT: William Fisher Laura Malone Karen I. Kaiser Ryan Ward Derwin Dume, Videographer

2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey March 16, 2010 10:01 a.m. Videotaped Deposition of FRANK SHEPARD FAIREY, taken by Defendant, pursuant to notice, at the offices of Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York, before Steven Neil Cohen, a Registered Professional Reporter and Notary Public of the State of New York.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Toll Free: 800.944.9454 Facsimile: 212.557.5972 Suite 4715 One Penn Plaza New York, NY 10119 www.esquiresolutions.com

Frank Shepard Fairey
229 231
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

March 16, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey 51 seconds to have created -A. No -Q. Let me finish. A. Sorry. Q. -- to create exhibits -- excuse me, pages 8 through 14 of Exhibit 30? MR. FEDER: Objection. THE WITNESS: Well, it appears that digital evidence, no. I do recall that a couple of my employees were around while I was working on this during that day so it is possible that one of them would remember -- have a better idea of how long they thought I worked on it. But my recollection was at least a couple hours to get to -- from the PhotoShop tinkering phase to the bitmap phase. BY MS. CENDALI: Q. What were the names of your employees that you say saw you working on this? A. A guy named Ernesto Yerena was

S. Fairey Q. She didn't see you actually working on making the poster? A. I think she saw near the end of the process when I was actually working on it in Illustrator. Q. She didn't see you working on it earlier than that? A. No, she didn't. Q. Then turning to page 15 of the exhibit, is this an e-mail from you to Yosi at January 23, 2008 at 8:40 p.m. and two seconds? A. Yes, it is. Q. And in that e-mail if you turn to page 16, did you e-mail to him the rough cut of what became the progress poster? A. Yes. I e-mailed him this colored version that basically consisted of just dropping the bitmaps into Illustrator and colorizing them and I was sending that to him for his thoughts. Q. So this rough cut was finished and sent to Mr. -- sent to Yosi at 8:40 p.m. and two seconds; is that right?

230
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

232
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey there and I believe Phil Lumbang was there, they shared an office with me but, yes -but -- and they don't work with me anymore but I could still ask them, I am still friends with them. Q. Did you list them on your initial disclosures of some people with knowledge as to the creation of the poster? A. Again I don't know but I know they have been brought up in a few discussions that I have had with -- first, with Mr. Falzone. MR. FEDER: Let's stop. We are getting into discussions with counsel. THE WITNESS: All right. BY MS. CENDALI: Q. Did Amanda see you doing any of this work? A. No. Amanda wasn't there when I was working on it. Q. So now, turning to page -A. Amanda did eventually see it further along than this but she didn't see this stage of it.

S. Fairey A. Yes. Q. And at least so far through the time of this rough cut, everything that has been done in the creation of the HOPE and progress posters was done on the computer; is that right? A. Up to that point, yes. Q. And coloring was done using Illustrator on PhotoShop, right? A. The coloring was all done in Illustrator but once the bitmaps are imported into Illustrator it is an Illustrator file, it is not PhotoShop anymore. Q. Fair enough. In fact, if you turn to page 17 of the exhibit, does that reflect that you had created an Adobe Illustrator file on working on the poster? A. Yes, that is correct. Q. The create date of that file was 8:08 p.m. and 42 seconds, is that right? A. Yes. That is the Illustrator file that this was jpeg'd from to send out.
Toll Free: 800.944.9454 Facsimile: 212.557.5972 Suite 4715 One Penn Plaza New York, NY 10119 www.esquiresolutions.com

Frank Shepard Fairey
245 247
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

March 16, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey did he get the jpeg? A. It looks like it was e-mailed but it is possible that I just told him which folder it was in and he grabbed it from the folder because -- well, I don't remember but we worked together in the same building so -Q. Okay. So -- and page 20 of Exhibit 30, that is the attachment, that is the progress poster that you posted on your web site, correct? A. That's correct. Q. On page 21 of Exhibit 30, January 25, 2008 at 4:34 p.m. and 26 seconds, you are e-mailing your friend Yosi the HOPE poster; is that right? A. Yes, that is correct. Q. And page 22 is the completed HOPE poster, is that right? A. Other than that very small hair tweak that you wouldn't even be able to see at this scale, yes. Q. And then on page 23 of Exhibit 30 you are now e-mailing Amanda on January 25,

S. Fairey put in a frame and were in my Boston museum show so there -- and I know that at some point you guys were supposed to get photos of the ones in the Boston show but for all practical purposes they are identical to each other. Q. You said two of them are and I think there is only three Rubyliths here and I will represent to you that we only got three. A. Okay. Q. So were there -A. Yes, that is a mistake. There is four. Q. There is four? A. Yes. Q. Do you know where the fourth Rubylith is? A. Well, I have -- I think I have all these materials as hard copies still in my office but the -- for whatever reason, the second -- the second layer of -- down of the Rubylith, if you look at the actual progress poster where it goes from dark blue to red

246
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

248
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey 2008 at 9:23 p.m. and 4 seconds the completed progress poster, is that right? A. Well, yes. The jpeg of it, yes. Q. You hadn't made any changes on it from the time that you had sent it to -that Dan had sent it to be posted on the web site, you were just informing Amanda that you had done it? A. Yes, exactly. Q. Now, let's take a look at what has been marked as Shepard Fairey Exhibit 31. These I will tell you are copies of Rubyliths that were produced to us in discovery in this case. Do you recognize those Rubyliths? A. Yes, I do. Q. What are they? A. They are the material I was explaining you to before, the red gelatin on the clear acetate backing. Q. Are these the actual Rubyliths that you used to create the progress poster? A. Two of them are. And the other two are recuts because the originals were

S. Fairey to medium blue to the lighter blue, that is really just made of a shading of the medium blue, but four tonal gradations, the red -what would be equivalent of the red layer for some reason is not here. And it was -I know it was produced but I don't know why it is not here. Q. Is the hair tweak, by the way, that you were mentioning earlier on the Rubylith? A. No. That was part of -- that was done in Illustrator and it would get really -- I probably have to show you on a computer but basically if you look at this field of this color blue and the way it goes underneath this red, there is a really small piece of it sticking out that interrupted this blue field that you would only see if you zoomed in but would be very visible in a large format poster. That was corrected in Illustrator. Q. For the record could you say what page you were look at, what page of Exhibit 30 were you just referring to?
Toll Free: 800.944.9454 Facsimile: 212.557.5972 Suite 4715 One Penn Plaza New York, NY 10119 www.esquiresolutions.com

Frank Shepard Fairey
249 251
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

March 16, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey A. 25. Q. You were looking at the area above then Senator Obama's head on page 25. Okay. Now, again, going to Exhibit 31, though, the Rubylith collection, the first one on the top of the page was given to us in discovery and we were told that it was a duplicate of something that was hanging in your Boston show. A. Yes. Q. And so a duplicate was made for us. Did you make the duplicate? A. No. I had one of my assistants make it. Q. And we were told that the duplicate was made on March 26 of 2009? A. Yes. Q. Is that correct? A. That's correct. Q. Which of your assistants made it? A. Ernesto or Phil, I don't remember which one. Q. Do they still work for you? A. No. They don't but they are still

S. Fairey Q. Is it -- I would assume that that -- that some amount of errors may come into that process? A. Yes. The two guys that work for me that I had taught those techniques, which aren't widely used techniques, had been working with me for a couple of years, actually about three years at that point. So I -- you know, I guess it is like, you know, no two people are ever going to play the same guitar solo exactly alike but if you hear the recording and listen to it over and over, it is close, it is very close. Q. There is also the potential for human error? A. Yes. That is true. I can definitely not say definitively that this is identical -- identical in every single way to the one in the Boston museum but it would be very similar. Q. Okay. The Rubyliths -- the other two Rubyliths that we have here in Exhibit 31, those were created at other end of the

250
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

252
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey in the area. Q. So the top page of Exhibit 31, that was a recreated Rubylith to match the one in the Boston show; is that right? A. Yes. As closely as possible. Because this was -- this is basically created by taking that layer of the poster and then recutting it. So with the exception of changes that may have been made between the initial cut and the editing in Illustrator, it would be identical to it but -- and I -- the one in Boston is in a frame but to the naked eye I think it would be very, very similar. I think for the purpose of demonstrating the process it is virtually identical. Q. For someone like myself who has not done this before, you would take -- the way you went about recreating the Rubylith image on the first page of Exhibit 31 is, you made a computer printout of that layer in the poster and then you used that as a model to hand cut the Rubylith? A. Exactly, yes.

S. Fairey spectrum. In other words, those are the Rubyliths that you created in order to make the poster to begin with, is that right? A. Yes, those are two of the original ones. When I -- I frequently frame the Rubyliths as basically the original illustration for pieces that I do but I don't because they are all orange they don't look good layered too deep so I only showed the top two layers in Boston but those bottom two are the actual original ones. Q. Okay. Then there is the fourth one that is at your studio somewhere? A. Yes. And I could be wrong but in the second round of document production, October 9, the original scans of the Rubyliths are probably in there but I can't say for sure. I am almost positive that I saw that those were produced. So all you would have to do is look at those scans which will have, you know, some sort of digital date around the 24th of January 2008 with these and you can see if they are accurate.
Toll Free: 800.944.9454 Facsimile: 212.557.5972 Suite 4715 One Penn Plaza New York, NY 10119 www.esquiresolutions.com

Frank Shepard Fairey
253 255
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

March 16, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey Q. So in order for -- and you hand cut these two, other two Rubyliths, the original ones yourself, you didn't have your assistant -A. That's right, yes. Q. For those two once you did it, you then scanned the four original Rubyliths into the computer and used that to create the digital file, right? A. Yes. I scanned those and then I converted those to -- from a PhotoShop file once they were imported into Illustrator into a Vector. Each layer was then Vector art so that allowed me to do another stage of editing but that was a -- you know, a very important step was doing the illustrations and rescanning them. Q. Mr. Fairey, I will represent to you that we looked very hard for the electronic files reflecting the scanning of these Rubyliths and we couldn't find them having been produced to us in discovery. Are you sure they exist?

S. Fairey editing that I would have done in the Vector stage of the -- once they are converted to Vector -- the whole idea with Vector art is that it is editable, meaning that these are idealized and stylized the way I think they should be based on looking at them as separate layers. Once it is imported into Illustrator I have the power to make subtle or very dramatic changes from there because it is Vector art, it is editable. I think you would probably have to work as a graphic artist to know what I am talking about but this would be similar to but not necessarily identical to what is in file but it would be close. You would probably see idiosyncrasies in the Rubylith that would be, you know, slight -- very, very slight imperfections but a lot of time I try to fix those imperfections when I do my -- when I do my edits in Illustrator but there is always a little bit of an organic side to it.

254
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

256
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

S. Fairey A. No. I am not sure they exist but I thought that I saw them in the batch of stuff that was produced but it is possible that they were -- had been not saved because they don't -- once this part has -- once these have gone into Illustrator, they will never be used in that stage again. So -but I thought I saw them but I could be confusing the scans of the actual physical Rubyliths with the -- that were done for the purpose of discovery with the original scans but I am not sure. Q. But it is true that if you had made Rubyliths and then used those Rubyliths to make the final progress poster, there should have been a scan of those Rubyliths at some point in the computer, right? A. Yes. There would have to be. Q. Is the Rubyliths here in Exhibit 31, not the first page of it because that was the after the fact one, but the other ones should be identical to the layers of the final poster, right? A. Yes. Other than possible slight

S. Fairey Q. Wouldn't there be then other digital files such as in Illustrator showing those edits from the Rubyliths? A. Well, yes, that is what the HOPE and the progress files are. Q. Right. But, in other words, if you scanned the Rubyliths in to the computer and then altered those scans and edited them in some way, shouldn't there be documents similar to the ones that we have been looking at in Exhibit 30 showing creation date and other metadata reflecting those edits? A. Well, those definitely existed and I am sure that -- I actually thought that you already had those from the second round of delivery of materials from October but, yes, they definitely existed at one point but that doesn't mean -- they might have -might not have been saved but they were not intentionally deleted as part of the spoliation like the other materials. Q. Let's take a look at what we will mark as Shepard Fairey 32 which is -- I will
Toll Free: 800.944.9454 Facsimile: 212.557.5972 Suite 4715 One Penn Plaza New York, NY 10119 www.esquiresolutions.com