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. 4

EXHIBIT D 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 Cost

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs, vs. THE ASSOCIATED PRESS, Defendant/Counterclaim Plaintiff, vs. SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC and STUDIO NUMBER ONE, INC., Counterclaim Defendants. -----------------------------------------1:09-CV-1123 (AKH) 1

November 18, 2010
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

A P P E A R A N C E S: JONES DAY Attorneys for Plaintiff 555 South Flower Street 50th Floor Los Angeles, California 90071 BY: JORDAN A. GIMBEL, ESQ. WILLIAM FISHER, ESQ. KIRKLAND & ELLIS LLP Attorneys for Defendant 601 Lexington Avenue New York, New York 10022 BY: CLAUDIA RAY, ESQ. BLAIR A. SILVER, ESQ. BRENDAN T. KEHOE, ESQ.

VIDEOTAPED DEPOSITION OF FRANK COST Thursday, November 18, 2010 10:26 a.m.

Reported by: Joan Urzia

(Continued)
4

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

November 18, 2010 10:26 a.m. New York, New York

Videotaped Deposition of FRANK COST, held at the offices of Kirkland & Ellis, 601 Lexington Avenue, New York, New York, pursuant to Notice, before Joan Urzia, a 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

A P P E A R A N C E S: (Continued)

CALDWELL LESLIE & PROCTOR, ESQS. Attorneys for Counterclaim Defendant - 132 Inc. 1000 Wilshire Boulevard Suite 600 Los Angeles, California 90017 BY: LAURIE MARTINDALE, ESQ. (Via teleconference)

ALSO PRESENT: JOHN PROKO, Videographer MIKE ESSL

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

Frank Cost

229
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

November 18, 2010
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

F. Cost this was created. Q. Well, let's look back at the testimony. A. What's the purpose of this duplicate? I don't get that. Q. Well, I will tell you my understanding based on the testimony is that the duplicate was created to provide a copy of the Rubylith to the AP because the original was framed and hanging in a show? A. It was an art show. Q. Yeah? MR. GIMBEL: Is there a question that you have? MS. RAY: I did have a question which was: BY MS. RAY: Q. Did you see the existence of a duplicate Rubylith affect your opinion as to whether the image in figure 8 of your report on the left was created before or after the one on the right? A. It doesn't change it at all. It doesn't change it at all.
230

F. Cost Q. And that that is typical of the kind of normal fine adjustments that the artist would make to the Illustrator file before printing, correct? A. That is correct. Q. Those differences could result from the Rubylith having been created from the Illustrator file, correct? A. That is correct. Q. Then in paragraph 25, you say that, looking at the dark blue layer, which as I understand it appears both on the right in figure 8 in your report and also is the image in figure 10 in your report, that that dark blue layer shows the characteristic edges of a Rubylith mask that's cut with an exacto knife; is that correct? A. Right. Q. But that dark blue layer itself is not a Rubylith layer, correct? It's a digital image? A. The dark blue image was taken from the Illustrator file. I basically
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

F. Cost Q. You don't have any proof, though, as to which one was created first, correct? MR. GIMBEL: Objection. Vague. Which what? BY MS. RAY: Q. Which of the two images in figure 8 was created first, other than your looking at them -A. I don't have proof. Q. So it is at least theoretically possible that the image on the left in figure 8 was created first -- excuse me, on the right in figure 8 was created before the image on the left? A. It is theoretically possible. Q. Looking at your report on page 14, paragraph 24, you say that Mr. Fairey modified certain features of the digital scan of the Rubylith, correct? A. I say that. Q. And you say those modifications are evident in the very subtle differences in the contour of the edges. A. Right.

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

F. Cost extracted it from the Illustrator file. Q. And the Illustrator file is a digital file, correct? A. Right. Q. So that dark blue layer itself is a digital file? A. That's right. Q. And so it's fair that in the dark blue layer what you're seeing is a digital representation of an edge? MR. GIMBEL: Objection. Vague. BY MS. RAY: Q. You're not looking at an actual Rubylith edge, correct? A. No, I'm looking at -Q. Assuming Rubylith was used. A. Yeah, I'm looking at a digital file. Q. Okay. So looking at the edge in figure 10, which is a digital file, that edge could have also been accomplished in the digital process, correct A. Yes.
Toll Free: 800.944.9454 Facsimile: 212.557.5972 Suite 4715 One Penn Plaza New York, NY 10119 www.esquiresolutions.com