Fairey et al v. The Associated Press

Filing 235

MEMORANDUM OF LAW in Support re: 234 MOTION in Limine No. 5 to Preclude Obey Clothing from Presenting Shepard Fairey's Expert Witnesses at Trial.. Document filed by The Associated Press. (Attachments: # 1 Exhibit A, # 2 Exhibit B - Part 1, # 3 Exhibit B - Part 2, # 4 Exhibit C, # 5 Exhibit D)(Cendali, Dale)

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Fairey et al v. The Associated Press Doc. 235 Att. 5 EXHIBIT D TO THE AP'S MOTION IN LIMINE NO. 5 TO PRECLUDE OBEY CLOTHING FROM PRESENTING SHEPARD FAIREY'S EXPERT WITNESSES AT TRIAL Dockets.Justia.com Transcript of File Name 100407_000 March 2009 interview.mp3 Bates FAIREY1269O6 Custodian Simon Steinhardt Shepard basically Fairev SF So you know his didnt wanted to create an Obama by his image from at long while back in right after he announced candidacy on the to Id been impressed liked his speech the BNC that 2004 and then checked in out some Iraq information that web and ideas of liked the fact he had opposed the war wanted that to and he wanted reduce the power lot lobbyists in Washington causes actually So you make poster to support on him just like do with political of different political know want read or unlike am commenting of favorably or against Id just make hurt things that going on on But topic didnt to most my posters didnt and and where to an image comments without really arrested consulting anyone want didnt be Obamas cause because as Im too street artist thats been and 14 times at that point want to you know as liability be seen you know too radical too outside the mainstream seen So event put the word right out to some people and at finally my friend Yosi Sargent who that ran into at an Adidas people in around and Halloween the end of October for 2007 Um do He said he knew some the campaign from said him until maybe he could get permission wanna and an say me to an Obama image And didnt hear back he just the the middle of January light maybe about an 15th or 16th of January Got the green spoke portrait it um and Hey got the green theyre cool Go ahead making make Obama image light from campaign Google that with you that image That very evening would be it after for to him just did search for an really image in thought good reference be And the concept be patriotic to wanted the portrait was that would to it red white and blue would of but it would be slightly slightly more muted in colors slightly more muted mid tones blue work or better with the way image lighter into the shadows falling the face would actually work But wanted to split the face falling the the and one-half into deeper shadows which would be red and blue the other half into shadows and states highlights which would be and cream with the idea that the blue states the red were converging and blah blah blah also really liked that couple into of images very that Id seen over the years of One was the famous of portrait of Che Guevara of his turned very ubiquitous icon into that Che because was liked part of the gaze that he the position eyes sort of of looking sort of the future so that what was looking for Theres So at another looking Panel one Robert bunch Kennedy of was similar that So this was the general criteria of that that through images It eventually found and an image Obama if with George Clooney the the for Darfur from 2006 had the right look and stylized realized tinkered with the way as starting shadows were working and then refined the image that did could work point So tweaked the contrast and the shadow areas some photo shop work on the image and then adjusted thought then the angle of the gaze and the slant of the shoulders from really slightly And then had after what it was good rough it to start where could get the desired the colors and scanned results illustrated So illustrated illustrated each layer for them back into the computer and EXHIBif composited them First put the word PROGRESS the image of beneath the image it and that sent the image it out to be screen printed Ive acknowledged didnt think that it you know but it when have found recall that said was an AP photo which on the history to of didnt the name at all of the photographer that And based an image did that Pop Art was consequential and felt was making and this that was going to transform the aesthetics the photographer actually the intent in the original from neither as it need know but the name did or deal with the AP working image think reference Um days to not know that the photo was by Manny also of Garcia until was couple after the so inauguration But anyway course had it no idea that of the image was going become and lot famous thought on Um you was Super there know its when made the image for 5th was to couple weeks before Super Tuesday out quickly because theres my at um extremely important think me get an image stake Tuesday February of think to was when an it was and if dont have get an image did out the now the window started opportunity make and impact might be missed And so website quickly illustration print run of posters said posted the illustration on had...that my And the time knew illustration think that it Id actually done another poster that VOTE that make released at the same exactly But once to came out few days before the Obama able to release that illustration dont remember an might be might be able to it Obama them image vote in wanted first prime people by just putting an image out there that of was encouraging to the primaries in general Anyway reasons intent and you First know of all fair lot people have and asked to me why think to didnt license the image both Theres in multiple thought Icontinue transformative work license it aesthetics and falls under use and one shouldnt have Secondly licensing said involves permission use it the AP claims license it to be non-partisan Theres possibility they may it have no you cant you cant for that in purpose And also theres out If the time issue So definitely takes time to license think that things and have and drive for its there wasnt time photos Barack traffic lifted if order to get something its dont the AP should Clooney its used for original intent were doing an selling that that article article about George Obama to being on that panel discussing Darfur and or using that article to to the site was charging same for advertising on would impede the APs used the image it ability charge that same image for that purpose of However and it if the way anything photo was not competing Associated point with Press their original market or intent the image so gave extra value to The image Once the poster became remarkable the image it famous was that was reasonable that starting but not in and of itself and it now its associated viral with something became the remarkable Anyway putting quickly became sites became and it was being emailed as their all around web to people up on blogs news people were that to using Facebook pages MySpace those and which used their email then signatures and from from those shortly after sold printed screen print run sold the money to the 350 to print up another 10000 offset prints then switched the word several PROGRESS HOPE Within at week there were 10000 Michelle print outs there think know that thousands were given away was in Oprah and Obama Michelle Obama was 3000 there was away at Oprah UCLA the hospital for Madeline was being born but it Yosi went and the image gave posters Oprah rally Obama so immediately in was being seen and seeing it was being seen on the yosi national news was in remember being the hospital on CNN that and it sending me emails on the while the hospital out Google while Madeline and was being born hits saying was really going crazy web the checked poster looks saw to ton of for it Some but people saying it its great of some people saying and it too Communist be helpful to Obama was getting lot attention really should of There was because that lot of emotion about had Obama very himself which still think is the reason for the success that the image portrait that human connection to Obama hadnt been made being not just to logo for could become or that think symbolic that representation of him as need and those feelings to human website like slogan And such people of connection such especially populist that someone idealist Obama whos think good speaker seems be coming from and place that this type of image not just reinforced or amplified or those feelings people had think about it Obama worked the human being look at Obama the campaign of the rhetoric machine of Thats why really When all you what people got out came to the image the feelings hope optimism change go back to progress those things that be associated to with the image And you they dont feel that the source image the most people across singer and that fact Ive talked at say that the source image puts those concepts to in the time Obama was photographed but anyway stylized he was actually listening that conservative forgot the guys the features palate name were most people feel would agree idealized also the power turned as comes from this the way that Patriotic of color and and the fact that as hes been black into hes no little longer bit hes no longer perceived man much to which that lot people have like it maybe of discomfort with thats or something people have issue said it me they as to feel made him American not black the thing and just built white and there took the race ...I out of bit But anyway that most people know print out 10000 from sold every round as sold the 350 posters and used to money many more then we an offset of 750 and used that money by print thousand people if more would prints and we started making stickers well Then was asked and couple different make fine art pieces made those fine art pieces into the money from the fine art couple of fine art pieces making stickers and the money from at first those went paid making run of.. more posters think also we started the stickers were to just for sticker 50000 stickers but then until the sticker vendor thing is who cough dont up want name on because it ...l dont want him involved necessarily sell this resolved roll all to any royalties into But the sticker vendor then offered to the stickers and then the profits back producing that did more stickers that could be given away and so the sticker rolling vendor basically took the same into model prints was using selling the prints on my site the money back made and making thing more and the exact same thing the to Then there were was used flyer to t-shirts that were the same was done there Pennsylvania to college The money from it t-shirts make bus stop ads for Philadelphia before the Primary was used fund campus-wide also voter outreach flyers that went out campuses nationwide in And then we funded prints the and Manifest t-shirts that Hope had that art show sold at the democratic convention one... Denver mostly about with money from the inspiration for been had So for year no people asked and me no the image explained gotten the reference from So the internet it one ever asked me.. up to not one interview that who was the become original volatile photographer so actually actually never came me as an issue thought would never researched who the photographer was from or do you remember Interviewer all Did you ever bookmark the site or whoever you got it that at SF No see didnt Because you when know you go through Google it you can just click on the image and then itll say it larger size and think remember why being AP because it was maybe watermark on something that or something cant remember exactly remembered was AP but there was alerted me and to the fact that it was an AP image you so knew it was an AP image but do never stuff bookmarked but once its the site when do these illustrations know make my tinkering to and Ive its hide like done the final always throw stuff look the stuff away it thats not stuff that on need keep Not because that not to the sketch phase anything If because just takes up memory the computer will Im trying that you through that if my computer stuff sometimes there because it be reference photo worked Ill from but stuff if usually throw you away just to takes up back and hard drive reference space sometimes it save that of wanna know wanted still be able to go for something are With thing made the sets which are have in those are the rubilyth think still sets Two Im of them here and have two them composited of in the show from to Boston but have pretty sure still just the printouts what worked do the illustration but dont have the digital files Interviewer Has your lawyer inaudible sounds like maybe turned off tape recorder and then restarted SF Especially if you dont talk about it with anybody Oh we have this tape of Shepard talking about the case Interviewer Right SF But anyway Im sure that when it all goes to court Ill have to produce whatever have so Interviewer Right SF Ill hold on to and some of the materials while But actually at think that the might even know that was at my house pulled reference was home home browser history Interviewer You could probably when find it in your history in your SF Except that my computer was have charging on that the ground the chair on at fell over on it and think thats the computer two computers work home think thats the computer where smashed the drive Interviewer Laughs duplicates of SF But keep that most of the stuff that either do on my office computer so it might be in there that but know have the print outs so but way what Im really fighting here is not the fact worked from the AP photo Interviewer Right SF Because Ive acknowledged especially likeness publicly that all along What and Im fighting of is that its that is it fair use to work and its of from photograph when is the market the intent the photograph people movie its well star are different that in leader that of public whose are public domain have Like you the same stars know known likenesses leaders of just dont rights as or rock star terms of reproduction their likeness public figure because movie if and rock stars are using their likeness to as part of their income Where however youre going make public figure people need to be able to critique them however in So that concept be think is well thought out concept then theres The likeness of leader but if people government should likeness public domain it However the next step which reference is youre able creating how do you create other than from portrait sitting photographic for unless youre to as an artist have the person come do you Interviewer Right SF Which for me as an artist thats done some lot of stuff that was anti what the government was doing session -- at the time the likelihood of me getting personal time to do photo Interviewer Four or five hours.. SF -- with Barack For Obama or have him pose while sketch him was most making for stuff likely if not definitely leader licensing is out of the question aspects of tons of other but need be cost think artists who whether theyre in thats of for or against their policy is to have likeness their that work that most them photograph part of going to prohibitive it and think kind of expression really important and works as political dialogue creates fair new meaning and biggest new communication issue for the art does you therefore tool of it should be considered use Thats the people me is how know art communication Kuntz frequently of when or it artists are of working from references whether you agree subject with Jack way working think Andy Warhols way has to be working case with using other pop culture in matter thats trying one thing to that create that analyzed on by case basis but at least fair the case of working extremely case you think images be about free the leaders should be game for commentary the AP but its in important also fighting more forum to for people and Thats why Im fighting this Im used the AP as because the AP came this me said oh you know we found out said well fee that one of our images have for so to reference for anything thing You owe us money And dont should been owe you but Id be willing to pay what the original licensing wouldve the image it And they said no we want damages And this is through to representative wasnt was actually willing to me do speaking and then to them directly but Brad Grossman was speaking and said them them told for him what my attorney after that and said no Id be willing to pay is the original are licensing fee but the AP came value of the original of this back we want damages enhanced that its in my been it question licensed what damages several that to its there The photograph it has been situation times over just because relevance had in case It never was had which was taken not going with the art strongly passed and The Darfur create panel with George for that Clooney So once It in 2006 was most became on lot likely be revived and the news market based piece of it well known piece about the value of the poster was the fact that it on it lot things and was based people feeling of Obama wasnt 2006 that was 2008 there was have for emotion based about on is him history potentially as well as being the next president there was the following the value that on even the uninitiated that my art my well would find in the aesthetics to of the art which also documented validated the internet that all the response of the tributes that all people had of the art which can be further by the fact the knock offs of my Obama several image people even on were based on the style of the illustration lot not the style of original photograph of including who you know of people based did of their association with the power the image illustration on style and which is confused other Garcia illustrations Obama in that style with the HOPE based Mannie photo And this is not limited image on to but very very thoroughly of conveyed by many people saying of that it was that great that illustrated the HOPE ended up on the cover completely different TIME magazine that The cover TIME Magazine for was based is photograph TIME magazine provided if me really look Obamas at mouth it open the blue look and the red are on like opposite image sides of the composition for you the image doesnt team is anything the HOPE except the colors like and the illustration and to style My legal making the argument that could have Barack yielded in Obama looks Ba rack Obama theres that many many one but it is photographs not original lot out there that the same context as results happened choose enough to be copyrightable things at this the basis of an lot illustration So you know the theres campaign of difference work here but anyway to of people style of was asked by Obama and by TIME find and the by Creativity photographer do portraits in the same photo think Obama we for them they didnt photo say hey could you similar in who shot the original and can set up on the shoot thats style style to the original lastly photograph is The value the diligent Yosi was mostly based of illustration But the value also spent think to based on implementation the image put to in made lot the posters my own money studio to mail put them out there out to you Sergant who was helping of time Inaudible or my posters know critical people were volunteering go out so and give them away lot put them up places Things achieve mass not just by themselves it theres very to be said about the value of the image the image into becoming symbol because here on any was very very vigorously promoted the public You can play devils advocate of this stuff Interviewer Laughs might be helpful SF -like because it But Im just sort of like telling you all of my thoughts about the case Interviewer Yeah well You know think the biggest difference is between image the two images to me was one is clearly an art or design image and the other one news SF of Right The original image being news image did is think very relevant it and when until you check out some Mannie he Garcias interviews being Mannie Garcia familiar not realize was did his photo year later even though until acknowledges his with the poster with the then But he image not realize he was the photographer poster and well said someone put this it is photo and side by side this Obama he said with the Obama said hey you look your photo heres and well Well why.. of People in why didnt on realize was your photo theres no is it And he said can gives split shoot thousands all pictures day when Im an relevant assignment to this way remember something second even to of them If So the next issue is that comes up thats is case to thing me but what took value take and the argument that the photo of the most at valuable time and have event there were thousands it others taken the same those the photographer get to didnt realize that was its his photo its basically saying that who press access or run things that And you know whether Mannie Garcia having it photo To is pass for corporation can and wield its influence having ownership works through is whatever to outlets has me the idea that of being able to communicate which is gonna when did for be control-proof access participate the antithesis my philosophy that democracy better it more people can So to diminish is the value of what insulting to did which Its insulting took far longer than that him to take the original photograph to me recognized what would be good starting point make an image that might communicate produce of to to to people put it in new on context website took the time to to illustrate it took the all time to and all posters promote the thing my so use my studio Ive there used is of my so skills my resources put this thing out there so the value thats achieved based also on much more than the photograph created was not building that of And on thats really important factor think if And this when been the piece that photograph the qualities be competing the idea of the photograph lit You know had had been composed think of that and and be editorialized different with to say that situation you know Obama has leader that would because my is poster would then with the intent the original But thats not what the situation Interviewer Now lot of people have said that The AP is trying to use this case to really like make statement You know not just to you obviously but using this sort of landmark case SF Right Interviewer To send message How do you is interpret that like what the AP is doing here make with SF You know that it see what the AP high parts of visibility doing as for way to utilize the fame of the image you the created to had sure would be lifting situation them And then for things know theyve problems bloggers from AP articles and photos from web which is completely they can different what to did But think theyre confusing that these two issues would be Theyre thinking use my case as it way send is warning out to anybody ever use anything from the AP without high paying for thats But this used not an appropriate situation it in Theyd much better to off its going after profile blog If an image without of licensing article an identical identical that original form and on intent blog the idea is they take paying the using piece an the and photograph is went with and to it and repost that without blog is AP and APs function to create stories photos that serve the story then those things the AP is for exactly think how its they were intended in be that used That would make with lot more sense What doing think my case is confusing situation transformative art piece Thats going but to make that it more difficult for them You know that respect the role of the the AP provides AP dont dont create in blog relies on current events content completely different Im not competing with the AP any way My work serves purpose the blog thing Interviewer You know for think you sort of touched years everything copying like it on this with The world copyright you know so many was sort of like physical/tangible digital its you know easier it To copy to manipulate something you were things because consider literally it Now to everythings so much And you know so it its used be very easy to define sort copy Either was the same was literally copied or it wasnt exactly And now its of shades line of gray What do you copy and not constitutes copy Or where even in would you draw the other people never between copy SF Well think that with things my own work where that have made parodies or incorporated because references without for are aspects of an my work to they were doing Its pursue any you of that important of visual and usually communication So when you know cant have that in parody or satire context reference only ever pursue purposes think legally things also are just direct copies financially motivated you can track exploitative all that weighs on the case of the Obama poster because of my financials from the poster and the poster made the poster obviously not for personal back into profit made into it to support presidential candidate and all of the money was rolled it the campaign itself -- the poster campaign making -- more materials or and the No was donated to the and Obama also campaign America things or all it was donated money is all to charity the ACLU On Prop The- movement however absolutely feel have gotten based on the revenues stuff of from poster think one of the control AP might be seeing thinking go after the bootleg thats out there that have no over actually And theyre wanted rather to well we want of piece that action because And Id rather actually if the same the to way HOPE some those bootleggers the money from not just to the owned Obama image Id have those people those bootleggers going back just charities it care about Have the money going for good it benefit somebody in whos case doing that if for the money making But an clearly of wasnt political just doing for money However Nixon is this think youre image of sure image leader art piece whether with thing its Warhols think that or Vote McGovern or my Obama made the right to make an likeness think extremely for important Warhols Im political some money from and to the McGovern piece Just ifs fine him to his life both make that statement have he spent time and energy on hours of in he would receive some to return paid for the effort like anyone who works would make you decide that is as clerk store or as painter of this dentist they deserve be for their hours The analogy and your of it say youre the facade That and youre walking around house in is town with your going to paint hurt easel paints and well persons nice Im painting and It then be you able sell painting for painting is not going to been any for way the value of that Just like house photo will to be sold as it however before much it wouldve there is sold before painting the AP sold that for as much had However possibility if that becomes very famous of house becomes very famous through of its the painting that to and just the house because that becomes something theyre painting it greater value because house that that fame And so would painter paid from they saw on ridiculous to the street not deserve be for painting they created You know seems me as Interviewer Right think Ive got to go sounds though the tape recorder was turned off and back on again SF You know house prints think that whats going on the painter to now with the way this AP stuff the rest of their life is working if you get back the painting because to the or analogy of is would for whether they sold made the painting have pay the owners of the house the painting or the architect like royalties they would make itself the argument that To was that people the painting because like of the house the painting in It or the architecture me there could be in it many many reasons why people could be just the style ifs painted appealing that could be the most banal subject have value matter painted that way thats could make an art piece And is think many artists proved is over the years to is And really whats happening the corporate here is my biggest issue with how is the law slanted that Ifs slanted favor where vital money when is not where have the expression been And that think communication to encourage And that things things transformed is is should be fair game ifs think that less copyright law should bootleg kind of Because like it only protect when something that an exact facsimile think more or ifs very slippery slope beyond That People could say well or the style further looks may hove come from this thing could be coincidence not The you get away from direct facsimile to the more possibility there be an infringement think is for that someone with has real just good effect legal team to pursue what they consider chilling on creativity Interviewer Theres definitely some things in there that want to..

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