Fairey et al v. The Associated Press

Filing 83

ANSWER to Counterclaim. Document filed by Shepard Fairey, Obey Giant Art, Inc, Obey Giant LLC, Studio Number One, Inc..(Lopata, Chris)

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Fairey et al v. The Associated Press Doc. 83 Geoffrey S. Stewart Meir Feder Chris J. Lopata Jones Day 222 E. 41st Street New York, NY 10017-6702 Telephone: (212) 326-3939 Email: gstewart@jonesday.com William W. Fisher III (admitted pro hac vice) 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-0957 Email: tfisher@law.harvard.edu Attorneys for Plaintiffs and Counterclaim Defendants 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 and STUDIO NUMBER ONE, INC. and ONE 3 TWO, INC. (d/b/a OBEY CLOTHING) Counterclaim Defendants. ANSWER AND AFFIRMATIVE DEFENSES OF PLAINTIFFS AND COUNTERCLAIM DEFENDANTS SHEPARD FAIREY, OBEY GIANT ART INC., OBEY GIANT LLC, AND STUDIO NUMBER ONE, INC. TO MANNIE GARCIA'S FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS 09-CV-01123 (AKH) ECF Case 1 Dockets.Justia.com 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. Plaintiffs-Counterclaim Defendants Shepard Fairey and Obey Giant Art, Inc. and Counterclaim Defendants Obey Giant LLC and Studio Number One, Inc. by and through their attorneys, answer the correspondingly numbered paragraphs of the First Amended Counterclaims of Defendant Intervenor Mannie Garcia (hereinafter "Garcia"), dated December 3, 2009, as follows: NATURE OF THE ACTION AND RELIEF SOUGHT 53. Deny 53, except admit that Garcia took the Garcia Photo and admit that Garcia purports to hold copyright Registration No. VA 1-665-426 in the Garcia Photo. 54. 55. 56. Deny information or knowledge sufficient to form a belief as to 54. Deny information or knowledge sufficient to form a belief as to 55. Deny information or knowledge sufficient to form a belief as to 56. 2 57. 58. Deny information or knowledge sufficient to form a belief as to 57. Deny 58, except admit that Garcia took the Garcia Photo on April 27, 2006 at the National Press Club. 59. Deny 59, except admit that Shepard Fairey used the Garcia Photo as a reference in creating the illustration that appears on the Obama Works and admit that Obey Giant Art, Inc. sold sweatshirts bearing the "Hope" image and posters based on the Obama Works and admit that Obey Giant LLC earned revenues from the sale of clothing by Obey Clothing based on the Obama Works. 60. Deny 60, except admit that Plaintiffs filed a complaint for declaratory relief and refer to that document for its entire contents. 61. Deny 61, except admit upon information and belief that The AP claims that it owns the copyright in the Garcia Photo. 62. 63. 64. 65. Deny 62. Deny 63. Deny 64. Deny 65, except admit that for a time period Obey Giant Art Inc. offered for sale a sweatshirt bearing the "Obama Hope" illustration at the Web site http://www.obeygiant.com/store. 66. 67. 68. 69. Deny 66. Deny 67. Deny 68. Deny 69. PARTIES 3 70. Deny information or knowledge sufficient to form a belief as to 70, except admit that the AP purports to be a New York not-for profit corporation with its principal place of business at 450 West 33rd Street, New York, N.Y. 10001. 71. Deny 71, except admit that Shepard Fairey is a visual artist, graphic designer, merchandiser and business owner who resides in Los Angeles, California. 72. Deny 72, except aver that Obey Giant Art Inc. is a California corporation located at 1331 West Sunset Blvd., Los Angeles, California, 90026, and engages in the business of selling and distributing Shepard Fairey's artwork, graphic designs and merchandise. 73. Deny 73, except admit that Obey Giant, LLC is a California Limited Liability Corporation located at 1331 West Sunset Blvd., Los Angeles, California, 90026. 74. Deny 74, except admit that Studio Number One, Inc. is a California Corporation located in 1331 West Sunset Blvd., Los Angeles, California, 90026. 75. 76. Admit 75 upon information and belief. Deny information or knowledge sufficient to form a belief as to 76. JURISDICTION AND VENUE 77. Deny 77, except admit that Garcia purports to base jurisdiction for his cross claims and counterclaims upon the authorities recited in 77. 78. Deny 78, except admit that this Court has personal jurisdiction over Shepard Fairey, Obey Giant Art, Inc., Obey Giant, LLC and Studio Number One, Inc. 79. Deny knowledge and information sufficient to form a belief as to 79, except admit that this Court has personal jurisdiction over The AP. 80. Admit that venue is properly lain in this district. 4 FACTUAL BACKGROUND 81. Deny 81, except admit that Garcia purports to hold copyright Registration No. VA 1-665-426 in the Garcia Photo and admit that Garcia took the Garcia Photo on April 27, 2006 at the National Press Club. 82. 83. Deny information or knowledge sufficient to form a belief as to 82. Deny 83, except deny knowledge and information sufficient to form a belief as to the number of images taken by Garcia at the National Press Club Event and the number of images Garcia transmitted to the AP. 84. 85. 86. 87. 88. Deny 84. Deny 85. Deny 86. Deny 87. Deny 88, except admit that Obey Giant Art, Inc. registered the copyright Obama Hope (Reg. No. VA0001651318), Obama Progress (Reg. No. VA0001651319) and Obama Change (Reg. No. VA0001651320), works By Shepard Fairey, and admit that the copyright applications for the "Hope," "Progress," and "Change" works do not identify the Garcia Photo in the "Material Excluded" section of the applications. 89. Deny 89, except admit that the Clooney Photo is attached as Exhibit C to the Answer and Counterclaims of The AP. 90. 91. Deny information or knowledge sufficient to form a belief as to 90. Deny information or knowledge sufficient to form a belief as to 91, except admit that The AP purports to hold a copyright registration in the Obama Photo. 92. Repeat and reallege each and every response to 53 to 91 above as if 5 fully set forth herein. 93. 94. 95. fully set forth herein. 96. 97. 98. 99. 100. 101. Deny 96. Deny 97. Deny 98. Deny 99. Deny 100. Repeat and reallege each and every response to 53 through 100 Deny 93. Deny 94. Repeat and reallege each and every response to 53 to 94 above as if above as if fully set forth herein. 102. Deny 102, except deny knowledge or information sufficient to form a belief as to the truth of the allegations concerning how The AP obtained a copyright registration pertaining to the Garcia Photo. 103. Deny 103, except admit that Obey Giant Art, Inc. registered the copyright in the Obama Hope (Reg. No. VA0001651318), Obama Progress (Reg. No. VA0001651319), and Obama Change (Reg. No. VA0001651320) works. 104. 105. 106. 107. 108. Deny information or knowledge sufficient to form a belief as to 104. Deny 105. Deny 106. Deny 107. Deny 108. 6 109. Deny 109. PRAYER FOR RELIEF Deny Garcia is entitled to any relief. AFFIRMATIVE DEFENSES FIRST DEFENSE 1. Intervenor-Defendant's counterclaims are barred because the alleged infringement is a non-infringing fair use as set forth in 17 U.S.C. 107 and the common law. SECOND DEFENSE 2. Intervenor-Defendant's counterclaims are barred in whole or in part by the First Amendment of the United States Constitution. THIRD DEFENSE 3. Intervenor-Defendant's alleged copyright registration is invalid or unenforceable due to the failure to comply with the requirements of Title 17 of the United States Code. FOURTH DEFENSE 4. Any damages and profits sought by Intervenor-Defendant are limited, in whole or in part, 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 IntervenorDefendant's copyrighted work. FIFTH DEFENSE 5. Any statutory damages sought by Defendant pursuant to 17 U.S.C. 504(c) are limited, in whole or in part, because any alleged infringement was not committed 7 willfully and Fairey was not aware and had no reason to believe that his acts constituted an infringement of copyright. SIXTH DEFENSE 6. Intervenor-Defendant has failed to mitigate its purported damages and recovery of damages, if any, must be reduced accordingly. DATED: December 21, 2009 Respectfully Submitted, /s/ Geoffrey S. Stewart Geoffrey S. Stewart Meir Feder Chris J. Lopata Jones Day 222 E. 41st Street New York, NY 10017-6702 Telephone: (212) 326-3939 Email: gstewart@jonesday.com William W. Fisher III 1575 MA Avenue Cambridge, MA 02138 Telephone: (617) 495-0957 Email: tfisher@law.harvard.edu Attorneys for Plaintiffs and Counterclaim Defendants 8 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on all counsel via the Court's ECF system. JONES DAY By: /s/ Chris J. Lopata Chris J. Lopata 222 East 41st Street New York, NY 10017-6702 (212) 326-3939 9

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