Fairey et al v. The Associated Press

Filing 242

JOINT PRETRIAL STATEMENT /Proposed Joint Pretrial Order. Document filed by One 3 Two, Inc., The Associated Press. (Attachments: # 1 Exhibit A - Part 1, # 2 Exhibit A - Part 2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Cendali, Dale)

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Fairey et al v. The Associated Press Doc. 242 Att. 3 Case 1:09-cv-01123-AKH Document 71 Filed 12/04/2009 Page 1 of 33 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. And MANNIE GARCIA, Defendant, Counterclaim Plaintiff and Cross-claim Plaintiff/Defendant, v. SHEPARD FAIREY and OBEY GIANT ART, INC., Counterclaim Defendants. And THE ASSOCIATED PRESS, Cross-claim Plaintiff/Defendant. ECF No. 09 Civ. 1123 (AKH) JURY TRIAL DEMAND OBEY CLOTHING'S AFFIRMATIVE DEFENSES MARKED BY THE ASSOCIATED PRESS AS DENIED, RESOLVED, OR AN ISSUE FOR TRIAL ANSWER AND AFFIRMATIVE DEFENSES BY COUNTERCLAIM DEFENDANT ONE 3 TWO, INC. d/b/a OBEY CLOTHING TO THE ASSOCIATED PRESS'S FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS Counterclaim Defendant One 3 Two, Inc. d/b/a Obey Clothing ("One 3 Two") hereby responds to the Counterclaims contained in Defendant, Counterclaim Plaintiff and Cross-claim Dockets.Justia.com Case 1:09-cv-01123-AKH Document 71 Filed 12/04/2009 Page 29 of 33 207. Answering paragraph 207, The AP's allegation states a legal conclusion to which no responsive pleading is necessary, but to the extent any response is required, One 3 Two denies this allegation. 208. paragraph. 209. paragraph. 210. Answering paragraph 210, The AP's allegation states a legal conclusion to which Answering paragraph 209, One 3 Two denies each and every allegation in this Answering paragraph 208, One 3 Two denies each and every allegation in this no responsive pleading is necessary, but to the extent any response is required, One 3 Two denies this allegation. 211. paragraph. 212. paragraph. RESPONSE TO PRAYER FOR RELIEF 213. Answering paragraphs (a) through (m) of the prayer for relief, One 3 Two denies Answering paragraph 212, One 3 Two denies each and every allegation in this Answering paragraph 211, One 3 Two denies each and every allegation in this that The AP is entitled to the relief sought in these paragraphs and denies that The AP is entitled to any relief whatsoever. AFFIRMATIVE DEFENSES As separate and distinct affirmative defenses, and without conceding that they bear the burden of proof as to any of these issues, One 3 Two asserts the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE 214. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Denied fails to state a claim upon which relief can be granted. - 29 - Case 1:09-cv-01123-AKH Document 71 Filed 12/04/2009 Page 30 of 33 SECOND AFFIRMATIVE DEFENSE 215. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Denied; evidence of this defense should not be permitted as it is deficient as a matter of law is barred by the doctrine of unclean hands. THIRD AFFIRMATIVE DEFENSE 216. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Denied; Obey Clothing has stated it is not asserting this at trial is barred by the doctrine of waiver. FOURTH AFFIRMATIVE DEFENSE 217. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Denied; Obey Clothing has stated it is not asserting this at trial is barred by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE 218. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Denied; evidence of this defense should not be permitted as it is deficient as a matter of law is barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE 219. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Resolved by Stipulation is s barred because The AP's alleged copyright registration is invalid or enforceable due to the failure to comply with the requirements of Title 17 of the United States Code. SEVENTH AFFIRMATIVE DEFENSE 220. The AP's First Amended Counterclaims, and each cause of action alleged therein, is barred by the First Amendment to the United States Constitution. EIGHTH AFFIRMATIVE DEFENSE 221. Any damages and profits sought by The AP are limited, in whole or in part, AP: Resolved by 2/17/11 Summary Judgment Order pursuant to 17 U.S.C. 504(b) and exclude deductible expenses and any elements of profit attributable to factors other than the alleged infringement of The AP's copyrighted work. AP: Denied that it states an affirmative defense - 30 - Case 1:09-cv-01123-AKH Document 71 Filed 12/04/2009 Page 31 of 33 NINTH AFFIRMATIVE DEFENSE 222. The AP's First Amended Counterclaims, and each cause of action alleged therein, is barred because One 3 Two's use of the subject material constitutes fair use. TENTH AFFIRMATIVE DEFENSE 223. The AP's First Amended Counterclaims, and each cause of action alleged therein, AP: Resolved by 2/17/11 Summary Judgment Order is barred because One 3 Two's use of the subject material is de minimis. ELEVENTH AFFIRMATIVE DEFENSE 224. AP: Denied; Obey Clothing has stated it is not asserting this at trial Any statutory damages sought by The AP pursuant to 17 U.S.C. 504 are limited, in whole or in part, because any alleged infringement was not committed willfully and One 3 Two was not aware and had no reason to believe that its acts constituted an infringement of copyright. wilfullness TWELFTH AFFIRMATIVE DEFENSE 225. As to each and all of the claims for relief based on alleged infringement of alleged AP: Denied; an issue for trial copyrights allegedly owned by The AP, the AP is barred from recovering damages based on such alleged infringement in violation of 17 U.S.C. 1202, or such damages should be reduced, because any infringement by One 3 Two was innocent and without notice or knowledge of The AP's purported rights. THIRTEENTH AFFIRMATIVE DEFENSE 226. As to each and all of the claims for relief based on alleged infringement of alleged AP: Denied; AP: Denied copyrights owned by The AP, The AP's actions constitute misuse of their alleged copyrights. Obey Clothing FOURTEENTH AFFIRMATIVE DEFENSE 227. To the extent that The AP is entitled to recover from One 3 Two, One 3 Two is AP: Denied; has stated it is not asserting this at trial entitled to equitable indemnity from other persons and parties causing or contributing to such Obey Clothing damages. has stated it is not asserting this at trial - 31 - Case 1:09-cv-01123-AKH Document 71 Filed 12/04/2009 Page 32 of 33 FIFTEENTH AFFIRMATIVE DEFENSE 228. Because there was no primary violation of the Copyright Act, 17 U.S.C. 101, et AP: Denied; an issue for trial AP: Denied; Obey Clothing has stated it is not asserting this at trial seq., One 3 Two cannot be held vicariously or secondarily liable. SIXTEENTH AFFIRMATIVE DEFENSE 229. The AP failed to mitigate their damages, if there were any, which One 3 Two expressly denies. SEVENTEENTH AFFIRMATIVE DEFENSE 230. The damages alleged in The AP's First Amended Counterclaims are impermissibly remote and speculative, and, therefore, The AP is barred from the recovery of any such damages. AP: Denied EIGHTEENTH AFFIRMATIVE DEFENSE 231. The AP's claims are barred by the doctrine of justification and privilege, in that all AP: Resolved by 2/17/11 Summary Judgment Order actions by One 3 Two were lawful and were fair and reasonable under all circumstances. NINETEENTH AFFIRMATIVE DEFENSE 232. One 3 Two reserves the right to assert additional affirmative defenses that may arise in the course of discovery or during any trial of this matter. PRAYER FOR RELIEF WHEREFORE, One 3 Two prays as follows: 1. 2. 3. The AP take nothing by reason of its Complaint; That judgment be rendered in favor of One 3 Two; That One 3 Two be awarded its costs of suit incurred in the defense of this AP: Denied action, including reasonable attorneys' fees to the extent such fees are authorized; and - 32 - Case 1:09-cv-01123-AKH Document 71 Filed 12/04/2009 Page 33 of 33 4. For such other and further relief as the Court may deem just and proper. DEMAND FOR JURY TRIAL Counterclaim Defendant One 3 Two d/b/a Obey Clothing hereby demands trial by jury in this action. Dated: New York, New York December 4, 2009 Respectfully submitted, By:_/s/ Theresa Trzaskoma Theresa Trzaskoma Charles Michael Brune & Richard LLP 80 Broad Street New York, NY 10004 Tel: (212) 668-1900 Fax: (212) 668-0315 ttrzaskoma@bruneandrichard.com cmichael@bruneandrichard.com Robyn C. Crowther (pro hac vice admission pending) Jeanne A. Fugate (pro hac vice admission pending) Laurie C. Martindale (pro hac vice admission pending) Caldwell Leslie & Proctor, P.C. 1000 Wilshire Boulevard, Suite 600 Los Angeles, CA 90017-2463 Telephone: (213) 629-9040 Facsimile: (213) 629-9022 crowther@caldwell-leslie.com fugate@caldwell-leslie.com martindale@caldwell-leslie.com Counsel for Counterclaim Defendant One 3 Two, Inc. (d/b/a Obey Clothing) - 33 -

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