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)

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

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need

keep Not

because
that

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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

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thing

made the sets which
are

have
in

those are the rubilyth
think
still

sets

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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

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people
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Obama

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by TIME
find

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by Creativity photographer

do

portraits

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put them out there out to you

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time

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or

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to

be said about

the value of the image the image
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very vigorously

promoted

the public

You can

play

devils advocate

of this stuff

Interviewer

Laughs
might be helpful

SF

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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

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the two

images

to

me was

one

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art

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news

SF
of

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The

original

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until

you

check

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he

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interviews being

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my

philosophy

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democracy

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it

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So to diminish
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situation

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know Obama

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leader

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my
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But thats

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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
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SF You know
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bloggers from

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articles

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photos

from

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anybody

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on

current events content completely
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Im

not competing

with the AP

any

way

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serves

purpose
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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
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you

know
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it

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literally

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everythings

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much

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it

its

used

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to define
sort

copy

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literally

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it

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exactly

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its

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line

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What do you
copy and not

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would you draw the
other people never

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copy

SF

Well

think

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with
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have

made

parodies or incorporated because references without
for are

aspects of an

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Its

pursue any you

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only ever pursue purposes
think

legally things also

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copies

financially

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track

exploitative
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that

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on the case of the

Obama

poster

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of

my

financials

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made the poster obviously

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profit

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into

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support

presidential

candidate

and

all

of

the money was rolled
it

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itself
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--

more

materials or and the No

was donated

to

the and

Obama
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campaign America
things

or
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is all

to

charity

the ACLU

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movement
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have

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based

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have

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charities
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But
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Warhols
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Obama
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painting

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fame

And so would

painter
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You know

seems

me
as

Interviewer

Right

think Ive got to

go sounds

though the tape recorder

was turned

off

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on again

SF You know
house
prints

think that

whats going on
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royalties

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itself

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people

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me

there could be in
it

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reasons

why

people

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way thats

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art piece

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think

many

artists

proved
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over the years
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really

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here is

my

biggest

issue

with

how
is

the law

slanted
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favor where
vital

money
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the expression been

And
that

think

communication

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encourage

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that

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should be

fair

game
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copyright law should bootleg kind of Because
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direct

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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..