throbber
Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 1 of 36
`Document 242-1 Filed 03/11/11 Page 1 of 36
`Case 1:09-cv-01123-AKH
`
`Dale M. Cendali
`Claudia Ray
`Brendan T. Kehoe
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`Tel: (212) 446-4800
`Fax: (212) 446-4900
`dale.cendali@kirkland.com
`claudia.ray@kirkland.com
`brendan.kehoe@kirkland.com
`
`One 3 Twos Notes on the AP$ Complaint:
`
`GREEN SECTIONS: material believed to be out of the case,
`but which the AP refuses to remove
`
`GREEN UNDERLINE:allegations regarding fair use, which
`the AP refuses to remove; One 3 Twobelieves thesearestill at iss
`
`BLUE INTERLINEATIONS: admissions
`
`RED INTERLINEATIONS: denials. Manyare to allegations
`as to which One 3 Twohas no personal knowledge and so cannot
`admit or deny, although it does not dispute them. One 3 Two alsc
`disputes certain allegations to the extent the AP has defined the
`term Fairey and Counterclaim Defendants to include One 3 Two,
`and makesallegationsas to the conduct of Fairey or Counterclain
`Defendants as to which One 3 Twotook nopart.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Case No.:
`
`09-1123 (AKH)
`
`ECF Case
`
`THE ASSOCIATED PRESS’S FIRST
`AMENDED ANSWER, AFFIRMATIVE
`DEFENSES AND COUNTERCLAIMS
`
`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
`NUMBERONE,INC., and ONE 3 TWO,
`INC. (d/b/a OBEY CLOTHING)
`
`Counterclaim Defendants.
`
`And
`
`MANNIE GARCIA,
`
`Defendant, Counterclaim
`Plaintiff and Cross Claim
`
`
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 2 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 2 of 36
`
`Plaintiff/Defendant,
`SHEPARD FAIREY AND OBEY GIANT
`ART, INC.,
`
`Counterclaim Defendants,
`
`And
`
`THE ASSOCIATED PRESS,
`
`Cross Claim
`Plaintiff/Defendant.
`
`
`
`Defendant, The Associated Press (hereinafter “The AP”), by and through
`
`its attorneys, Kirkland & Ellis LLP, hereby answers the Amended ComplaintofPlaintiffs
`
`Shepard Fairey (“Fairey”) and Obey GiantArt, Inc. (“Obey Giant Art”) (collectively,
`
`“Plaintiffs”), in this action, dated October 16, 2009, as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in § 1 of the Complaint and therefore denies the same, except
`
`admits that Plaintiffs have asserted claims for declaratory and injunctiverelief.
`
`2.
`
`Denies the allegations contained in J 2 of the Complaint, except
`
`admits that The AP has asserted that Plaintiffs have created derivative worksthat infringe
`
`The AP’s rights in and to oneor moreofits copyrighted works, and further admits that
`
`Plaintiffs have asserted claims for declaratory and injunctive relief which seek, among
`
`other things, a declaration that Plaintiffs have not infringed The AP’s copyrights.
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 3 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 3 of 36
`
`PARTIES
`
`3.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in § 3 of the Complaint and therefore denies the same.
`
`4.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in J 4 of the Complaint and therefore denies the same.
`
`5.
`
`Denies the allegations contained in J 5 of the Complaint, except
`
`admits that its principal place of business is located in New York, New York and further
`
`admits that it is one of the largest, oldest and most prominent news-gathering
`
`organizations in the world.
`
`JURISDICTION AND VENUE
`
`6.
`
`States that the allegations contained in
`
`6 of the Complaint are
`
`conclusionsof law as to which no responsive pleading is necessary, but that to the extent
`
`any responseis required, admits that this Court has subject matter jurisdiction over
`
`Plaintiffs’ claims.
`
`i
`
`States that the allegations contained in {| 7 of the Complaintare
`
`conclusions of law as to which no responsive pleading is necessary, but that to the extent
`
`any responseis required, admits that this Court has personaljurisdiction over The AP.
`
`8.
`
`States that the allegations contained in { 8 of the Complaint are
`
`conclusionsof law as to which no responsive pleading is necessary, but that to the extent
`
`any response is required, admits that venueis properin this District.
`
`FACTUAL ALLEGATIONS
`
`9.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in J 9 of the Complaint and therefore denies the same.
`
`=B he
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 4 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 4 of 36
`
`10.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in § 10 of the Complaint and therefore denies the same.
`
`11.|Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in J 11 of the Complaint and therefore denies the same.
`
`12.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in § 12 of the Complaint and therefore denies the same.
`
`13.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in J 13 of the Complaint and therefore denies the same.
`
`14.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in J 14 of the Complaint and therefore denies the same, except
`
`- admits that a photographer named Mannie Garcia was employed by The AP asa staff
`
`photographer in 2006, and further admits that Mr. Garcia took photographsof then-
`
`Senator, now-President Barack Obama(“President Obama”) at an event held at the
`
`National Press Club on April 27, 2006, while on assignment for The AP.
`
`15.|Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in J 15 of the Complaint and therefore denies the same, except
`
`admits that among the photographs that Mr. Garcia took of President Obamaat the
`
`National Press Club on April 27, 2006 was a photograph depicting President Obama
`
`looking up andto hisleft.
`
`16.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in § 16 of the Complaint and therefore denies the same, except
`
`admits that Fairey has publicly stated that he has created various posters and other
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 5 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 5 of 36
`
`merchandise depicting President Obama, whichposters were based on a photographfor
`
`which The AP ownsthe copyright.
`
`
`
`17. Denies knowledge or information sufficient to formabelief as to
`
`the allegations contained in { 17 of the Complaint andtherefore denies the same, except
`
`admits that Fairey has publicly stated that he has created various posters and other
`
`merchandise depicting President Obama, which posters were based on a photograph for
`
`which The AP ownsthe copyright.
`
`18.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in J 18 of the Complaint and therefore denies the same, except
`
`admits that Fairey has publicly stated that he has created various posters and other
`
`merchandise depicting President Obama, which posters were based on a photograph for
`
`which The AP ownsthe copyright.
`19.
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in J 19 of the Complaint and therefore denies the same, except
`
`admits that Fairey has publicly stated that he has distributed various posters and other
`
`merchandise depicting President Obama, which posters were based on a photograph for
`
`which The AP ownsthe copyright.
`
`20.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in J 20 of the Complaint and therefore denies the same.
`
`21.
`
`Denies knowledgeorinformation sufficient to form a belief as to
`
`the allegations contained in § 21 of the Complaint and therefore denies the same.
`
`22.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in § 22 of the Complaint and therefore denies the same.
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 6 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 6 of 36
`
`
`
`23. Denies knowledgeor informationsufficient to formabelief as to
`
`the allegations contained in J 23 of the Complaint and therefore denies the same.
`
`
`
`24. Denies knowledgeor information sufficient to formabelief as to
`
`the allegations contained in J 24 of the Complaint and therefore denies the same, except
`
`admits that Fairey has publicly stated that he has created various works depicting
`
`President Obama based on a photograph for which The AP ownsthe copyright.
`
`25.
`
`Denies knowledge or information sufficient to form a belief as to
`
`the allegations contained in J 25 of the Complaint and therefore denies the same.
`
`
`
`26. Denies knowledgeor information sufficient to formabelief as to
`
`the allegations contained in J 26 of the Complaint and therefore denies the same, except
`
`admits that President Obama waselected on November4, 2008.
`
`27.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in J 27 of the Complaint and therefore denies the same.
`
`
`
`28. Denies knowledgeor information sufficient to formabelief as to
`
`the allegations contained in § 28 of the Complaint and therefore denies the same.
`
`29.
`
`Denies knowledgeor information sufficient to form a beliefas to
`
`the allegations contained in { 29 of the Complaint and therefore denies the same, except
`
`admits that Fairey has publicly stated that he has created various posters that were based
`
`on a photograph for which The AP ownsthe copyright.
`
`30.|Denies knowledgeor informationsufficient to formabelief as to
`the allegations contained in { 30 ofthe Complaint and therefore denies the same, except
`
`admits that an individual named James Danziger has posted material on the Internet
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 7 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 7 of 36
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`discussing Plaintiffs’ posters depicting President Obamaand the works owned by The AP
`
`on which such posters were based.
`
`31.
`
`Denies knowledgeor information sufficient to form a belief as to
`
`the allegations contained in 31 of the Complaint and therefore denies the same, except
`
`admits that an individual named Michael Cramer has posted material on the Internet
`
`discussing Plaintiffs’ posters speculating as to the source ofthe images depicted in
`
`Plaintiffs’ posters of President Obama.
`
`32.
`
`Denies knowledgeorinformationsufficient to form a belief as to
`
`the allegations contained in § 32 of the Complaint and therefore denies the same, except
`
`admits that Mr. Danziger has posted material on the Internet discussing Plaintiffs’ posters
`
`speculating as to the sourceof the images depicted in Plaintiffs’ posters of President
`
`Obama.
`
`33.
`
`Denies knowledge orinformationsufficient to form a belief as to
`
`the allegations contained in § 33 of the Complaint and therefore denies the same, except
`
`admits that an individual named Tom Gralish has posted material on the Internet
`
`discussing Plaintiffs’ posters speculating as to the source of the imagesdepicted in
`
`Plaintiffs’ posters of President Obama.
`
`34.
`
`Deniesthe allegations contained in { 35 of the Complaint, except
`
`admits that on or about January 29, 2009, The AP attemptedto contact Fairey regarding
`
`his unauthorizeduseofits photographsin creating Plaintiffs’ posters depicting President
`
`Obama.
`
`35.
`
`Deniesthe allegations contained in { 36 of the Complaint, except
`
`admits that on January 29, 2009 in-house counsel for The AP telephoned Fairey’s studio
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 8 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 8 of 36
`
`but was unable to speak with him, and further admits that an individual claimingto
`
`represent Fairey called The AP’s in-house counsel on January 30, 2009, during which
`
`call The AP’s in-house counsel informed Fairey’s representative that The AP was aware
`
`that a third-party had used technology to determine the source of the photo used to create
`
`Obama Hope, which was owned by The AP. Further admits that The AP told Fairey’s
`
`representative that it expected Fairey to provide attribution and compensation for the use
`
`of the photo consistent with The AP’s licensing practices.
`
`36.
`
`Deniesthe allegations contained in | 37 of the Complaint, except
`
`admits that on or about February 3, 2009 in-house counsel for The AP spoke with
`
`Plaintiffs’ counsel, during which conversation Plaintiffs’ counsel proposed a standstill
`
`agreement until February 6, 2009 to discuss a license agreement and The APreadily
`
`agreed to the proposal.
`
`37.
`
`Deniesthe allegations contained in § 38 of the Complaint, except
`
`admits that on February 4, 2009, The AP’s news department independently prepared and
`
`transmitted a newsarticle with the headline “AP alleges copyright infringement of
`
`Obama image”andrefers the Court to that newsarticle, which document speaksfor
`
`itself.
`
`38.
`
`Deniesthe allegations contained in § 39 of the Complaint, except
`
`admits that The AP’s news department independently prepared and transmitted the
`
`February 4, 2009 newsarticle entitled “AP alleges copyright infringement of Obama
`
`image,” which document speaksforitself.
`
`39.
`
`Deniesthe allegations contained in § 40 of the Complaint, except
`
`admits that The AP’s in-house counsel sent an e-mail to Plaintiffs’ counsel on February
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 9 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 9 of 36
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`6, 2009, after Plaintiffs’ counsel failed to respond to earlier communicationsstating that
`
`while The AP preferred an amicableresolution,it intendedto file suit on Tuesday,
`
`February 10, 2009 if the parties were unable to resolve matters before then.
`
`FIRST CAUSE OF ACTION
`
`40.
`
`Repeats and realleges each and every response to {J 1-40 above as
`
`if fully set forth herein.
`
`41.
`
`States that the allegations contained in { 42 of the Complaint are
`
`conclusions of law as to which no responsive pleading is necessary, but that to the extent
`
`any responseis required, admits that there is a dispute betweenthe parties as to whether
`
`the various unauthorized posters created by Plaintiffs using The AP’s copyrighted
`
`photograph infringe The AP’s rights in and to such photograph.
`
`42.
`
`Deniestheallegations contained in § 43 of the Complaint.
`
`SECOND CAUSE OF ACTION
`
`43.
`
`Repeats and realleges each and every responseto {| 1-43 above as
`
`if fully set forth herein.
`
`44.
`
`States that the allegations contained in 45 of the Complaint are
`
`conclusions of law as to which no responsive pleading is necessary, but that to the extent
`
`any response is required, admits that there is a dispute between the parties as to whether
`
`the various unauthorized posters created by Plaintiffs using The AP’s copyrighted
`
`photograph infringe The AP’s rights in and to such photograph andarenotfair use.
`
`45.
`
`Deniesthe allegations contained in § 46 of the Complaint.
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 10 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 10 of 36
`
`46.
`
`Deniesthe allegations contained in { 47 of the Complaint, except
`
`admitsthatprior to Plaintiffs’ creation of their posters, The AP had published
`
`photographs of President Obama which were taken by Mr. Garcia.
`
`47.
`
`48.
`
`Deniesthe allegations contained in ¥ 48 of the Complaint.
`
`Deniesthe allegations contained in { 49 of the Complaint.
`
`49.__Deniesthe allegations contained in § 50 of the Complaint.
`
`DEFENDANT’S AFFIRMATIVE DEFENSES
`
`FIRST DEFENSE
`
`50.
`
`The Complaintfails to state a claim upon whichrelief may be
`
`granted.
`
`SECOND DEFENSE
`
`51.
`
`Plaintiffs’ claims are barred in wholeorin part by the doctrines of
`
`estoppel and unclean hands.
`
`DEFENDANT’S COUNTERCLAIMS
`
`NATURE OF THE ACTION AND RELIEF SOUGHT
`
`52.
`
`The AP’s claimsarise out of Plaintiffs’ and Counterclaim
`
`Defendants’ willful and blatant violation of The AP’s copyright in a photograph of
`
`President Obama, taken by The APstaff photographer Mannie Garcia in April 2006 (the
`
`“Obama Photo”). Counterclaim Defendants have used the Obama Photo without The
`
`AP’s consentin violation of the Copyright Act of 1976, as amended. Namely, Shepard
`
`Fairey, Obey Giant Art, Inc., Obey Giant LLC, Studio NumberOne,Inc., and One 3
`
`Two,Inc. (d/b/a Obey Clothing) (“Obey Clothing”) (all counterclaim defendants
`
`together, “Counterclaim Defendants”or “Fairey”), fully aware that the Obama Photo was
`
`x OE
`
`DENIED AS TO
`ONE 3 TWO,
`BUT ADMIT
`THAT ONE 3 TWO
`SOLD CLOTHING
`BEARING IMAGE
`OF OBAMA
`THAT HAD BEEN
`PROVIDEDTO IT
`BY FAIREY. THIS
`CLOTHING SHALI
`BE REFERRED TO
`AS OBAMA
`CLOTHING.
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 11 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 11 of 36
`
`a copyrighted image, misappropriated The AP’s rights in that image by developing a
`
`series of posters and other merchandise based on the ObamaPhoto(the “Infringing
`
`Works”) and selling such merchandise through various distribution channels.
`
`The Infringing Works copyall the distinctive and unequivocally DENIED.
`53.
`recognizable elements ofthe ObamaPhotoin their entire detail, retaining the heart and
`|
`essence of The AP’s photo, includingbutnot limited to its patriotic theme. As the
`
`following side-by-side comparisonillustrates, the striking similarity between The AP’s
`
`copyrighted image (displayed below onthe left) of President Obama and the poster that
`
`Fairey made based on that image (displayed below ontheright) is patently obvious:
`
`Fairey’s Infringing Work
`The AP’s Obama Photo
`A true and correct copy ofthis side-by-side comparisonis attached as Exhibit A.
`
`54. While Counterclaim Defendants have attempted to cloak their
`
`DENIED.!
`
`actions in the guise ofpolitics and art, there is no doubtthat they are profitingeaa
`handsomely from their misappropriation. As just one of myriad examples of
`Counterclaim Defendants’ commercialization of the Infringing Works, Obey Giant Art’s
`
`Website <http://www.obeygiant.com/store> sells a $60 sweatshirt (depicted below)
`
`-1ll-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 12 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 12 of 36
`
`bearing an imagederived from theObamaPhoto,in blatant disregard of The AP’srights,
`
`although it appears that Obey Giant Art removedthesweatshirt from its Website after
`
`The AP fileditsoriginal Answer, Affirmative Defenses,and Counterclaims
`
`(“Counterclaims”) on March 11, 2009.
`
`
`
`ADMITTHAT
`In addition, upon information and belief, Obey Clothing has
`55.
`‘ONE3TWO
`manufactured and sold hundreds ofthousands ofinfringing T-shirts and related items, SeeSOLD
`earningrevenues fromthe InfringingWorks.
`one
`56.
`The following images depict Counterclaim Defendants’ infringing
`
`T-shirts — yet another example of the commercial nature of the Infringing Works:
`
`
`
`=! TD i
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 13 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 13 of 36
`
`Moreover, upon information and belief, Counterclaim Defendants
`57.
`have authorized and made revenuesand royalties from the sale of T-shirts bearing only
`the infringing image ofPresident Obama withoutthe words “Hope”or “Progress.”
`=
`on
`eeeTT |
`HIB ILSRIE OE Oban eat
`=
`
`
`:
`setae
`=D
`—_
`Otepp Geared "an
`aint%
`
`hart
`
`
`
`ADMIT THAT
`
`SOLD OBAMA
`
`ONE 3 TWO
`Sree
`THE WORDS
`HOPE OR
`PROGRESS
`AND EARNED
`REVENUES
`FROM THOSE
`SALES.
`
`~ lat
`58.|Nowhere in Fairey’s Complaint for a declaratory judgment and=ppny
`other reliefdoes it mention that Counterclaim Defendants have made, and continue to
`|
`make, substantial revenue from the Infringing Works. Accordingto published reports,
`
`however, as of September 2008 alone, Counterclaim Defendants’ profits from the
`
`reproduction anddistribution of the Infringing Works had already exceeded $400,000.
`
`Uponinformation and belief, in the intervening months, and with the publicity generated
`
`by this lawsuit, Plaintiffs’ profits from the reproduction,distribution and sale of copies of
`
`the Infringing Works have far exceeded the level they had reached in September 2008.
`
`59.
`Fairey could have selected from any one of countless images of
`President Obamain making his posters and other merchandise, or simply drawn him from
`life or taken his own photograph to use for his posters and other merchandise. Instead,
`nares
`
`DENY.
`|
`
`Fairey was drawnto the unique qualities ofthis particular photograph, made distinctive
`by Mr. Garcia’s creative andartistic input, including(1) his deliberate selection of a
`
`-13-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 14 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 14 of 36
`
`specific momentin time to capture President Obama’s expression; (2) his choice in using
`
`a particular type oflens andlight for optimal impact; and (3) his careful and unique
`
`composition of the photograph. These facts, combined with Mr. Garcia’s experience,
`
`skill and judgment, resulted in the creation ofa distinctive image of a unique moment and
`
`expression of President Obama.
`
`60.
`
`The Infringing Worksdo notalter any of the distinctive
`
`DENY.
`
`characteristics that make the Obama Photosostriking — from theselection of subject
`
`matter, to the composition, to the exacting details of the photo. All the recognizable
`
`elements remain completely and unmistakably intact in the Infringing Works, including
`
`the angle andslant of President Obama’s head, and his gaze and expression; the contrast,
`
`focus, and depth offield of the photograph;as well as the shadow lines created by the
`
`lighting in the original photo. Fairey even used the red, white and blue flag imagery that
`
`Mr. Garcia worked to capture in the background of The AP’s photo. Fairey has done
`
`nothing that would excusehis blatant copying of, and creation of derivative works based
`
`on, the Obama Photo withoutfirst obtaining a license to use that photograph from The
`
`APand agreeingto provide attribution to Mr. Garcia.
`
`61.
`
`Asis detailed below, Fairey’s use of The AP’s Obama Photo
`
`DENY.
`
`without notice, credit or compensation to the copyright owneris part and parcel ofhis
`
`willful practice of ignoring the property rights of others for his own commercial
`
`advancement. Asis also detailed below, Fairey’s practice contrasts dramatically with his
`
`aggressive and hypocritical enforcementagainst others of his own intellectual property
`
`rights. This highlights Fairey’s knowing willfulness here and showsthathis use of The
`
`aaaeeerrrere
`AP’s Obama Photois anything butfair.
`———————
`
`-14-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 15 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 15 of 36
`
`62.
`
`Simplyput, the fair use doctrine cannot be contorted to permit
`
`Fairey to wholly replicate a photographer’s prescient photograph and exploitit for his
`SNE
`own commercial benefit in utter disregard of The AP’s long-established licensing,
`_ae
`program, which provides needed revenue to support The AP’s not-for-profit mission of
`jt
`reporting the news as well as funding The AP’s charitableefforts.
`
`Licensing is an important source of revenuefor contentcreators,
`63.
`aa DENY.
`be they newsor entertainment companies. This is especially true for The AP and
`
`particularly in these difficult times. As a news agency, licensing of content is
`
`fundamental to The AP’s existence. Theruleof law that Fairey argues hereessentially
`
`Le
`using such revenue streams to support the ongoing creation of new content.
`
`would permit someoneto take and commercialize a content owner’s property withoutaattribution or reasonable compensation, undermining the long-established practice of
`
` Tocreate such a rule harming content owners is urinecessary as
`64.
`DENY.
`——=—sss.
`licensing programsalreadyexist that strike a fair balance between the rights ofthe
`a
`original content owner and the newcomer whowishesto use existing content to make a
`eee
`derivative work. Here, The AP had made every effort amicably to enter into a license
`el
`and avoidlitigation but, as detailed below, in the midst of discussions Fairey jumped the
`sl
`gun and filed this lawsuit anticipatorily in an attempt to gain a procedural advantage.
`
`65.
`
`In light of Counterclaim Defendants’ willful, unauthorized use of peeDENY.
`
`The AP’s Obama Photo, The AP has no choicebut to assert claims for damages and
`
`injunctive relief based on Counterclaim Defendants’ copyright infringement under the
`
`Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., and violation of the Digital Millennium
`
`Copyright Act (“DMCA”), 17 U.S.C.§ 1202, as well as a declaratory judgment pursuant
`
`-15-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 16 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 16 of 36
`
`to 28 U.S.C. §§ 2201 and 2202that Counterclaim Defendants have no copyrights in the
`
`Infringing Works.
`
`PARTIES
`
`Counterclaim Plaintiff The AP is a New York not-for-profit
`66.
`corporation with its principal place ofbusiness at 450 West 33" Street, New York, New
`York 10001. The AP is oneofthe largest and oldest news organizations in the world,
`serving as a source of newscontent in all formats — text, photos, graphics, audio, video
`
`DENY
`
`and multimedia.
`
`67.
`Counterclaim Defendant Shepard Fairey is an individual who
`resides at 1331 West Sunset Boulevard, Los Angeles, California 90026. Heis an artist,
`
`graphic designer, merchandiser and business owner.
`68.
`Counterclaim Defendant Obey Clothing is a California corporation ADMIT.
`located at 2313 Susan Street, Santa Ana, California 92704. Upon information and belief,
`Obey Clothing is the exclusive licensee of Obey Giant LLC for the use ofFairey’s
`
`trademarks and designs on clothing.
`
`69.
`Counterclaim Defendant Obey Giant Art is a California
`corporation located at 1331 West Sunset Boulevard, Los Angeles, California 90026.
`Obey Giant Art engagesin the business ofselling and distributing Fairey’s artwork,
`
`graphic designs and merchandise.
`70.
`Counterclaim Defendant Obey Giant LLC is a California limited
`liability corporation located at 1331 West Sunset Boulevard, Los Angeles, California
`90026. Upon information and belief, Obey Giant LLC engagesin the business of selling
`and distributing Fairey’s artwork, graphic designs and merchandise.
`
`-16-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 17 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 17 of 36
`
`71.
`
`Counterclaim Defendant Studio Number One,Inc. (“Studio One”)
`
`is a California corporation located at 1331 West Sunset Boulevard, Los Angeles,
`
`California 90026. Upon information and belief, Studio One engagesin the business of
`
`corporate brand identity and manages the Obey® and Shepard Fairey brands, as well as
`
`distributing Fairey’s artwork, graphic designs and merchandise.
`
`JURISDICTION AND VENUE
`
`72.
`
`This action asserts counterclaimsarising under the Copyright Act,
`
`ADMIT
`
`17 U.S.C. § 101 et seq., and the DMCA,17 U.S.C. § 1202. This Court has federal
`
`question jurisdiction over The AP’s counterclaims pursuant to 28 U.S.C. §§ 1331,
`
`1338(a) and 1338(b) and subject matter jurisdiction pursuantto the Declaratory Judgment
`
`Act, 28 U.S.C. §§ 2201 and 2202. This Court also has subject matter jurisdiction over
`
`The AP’s state law claims pursuantto the principles of pendantjurisdiction under
`
`28 U.S.C. § 1367(a).
`
`73.
`
`Upon informationand belief, this Court has personal jurisdiction
`
`ADMIT
`
`over all Counterclaim Defendants because they have committed tortious acts outside New
`
`York causing injury within the State of New York, regularly solicit business in New
`
`York, and derive substantial revenue from interstate commerce. Upon information and
`
`belief, this Court also has personal jurisdiction over all Counterclaim Defendants because
`
`they transact business in New York. Additionally, this Court has personal jurisdiction
`
`over Obey Clothing becauseit contracts to supply goodsor services in New York.
`
`Further, this Court has personal jurisdiction over Fairey and Obey Giant Art because they
`
`have chosento avail themselvesof the laws and protections of this Court and The AP’s
`
`-17-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 18 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 18 of 36
`
`claims arise from the sameseries of operative facts that Fairey and Obey Giant Art
`
`allege.
`
`(d).
`
`The AP
`
`74.
`
`Venueis properin this district pursuant to 28 U.S.C. § 1391(b) and ADMIT.
`
`FACTUAL BACKGROUND
`
`75.
`
`The AP is oneof the oldest, largest and most highly-regarded news DENY.
`
`organizations in the world. Founded in 1846, today it operates as a not-for-profit
`
`membership cooperative that gathers anddistributes to news outlets worldwide news and
`
`information that is informative, educational or otherwise of publicinterest.
`
`
`
`76.|Tosupport its worldwide news mission, The AP employs DENY.
`
`approximately 3,800 people in approximately 240 locations around the globe, providing
`
`thousands of newspapers,radio stations, television stations, news agencies, Webservices,
`
`government and corporate clients with high-quality news aroundthe clock in the form of
`
`text, photos, graphics, audio and video. On any given day, The AP’s content can reach
`
`more than half the world’s population through its membersandclients.
`
`77.
`
`The AP mustinvest significant resources to create and deliverthis
`
`DENY.
`
`enormous volumeofconsistently high-quality reports. The AP’s journalists are actively
`
`engaged in gathering and reporting news, including textual, visual and audio materials.
`
`Accessto information is crucial for these journalists, who must be present to the greatest
`
`extent possible at the moment when newsoccursin order to capture it. This requires
`
`them to travel quickly to the places where newsis expected to happen, overcoming many
`
`obstacles and enduring significant hardships and risks to make sure that they are ina
`
`-18-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 19 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 19 of 36
`
`position to capture newsworthy events as they happen andtransmit their original material
`immediately to an AP center for editing and distribution.
`
`78.
`
` Asanot-for-profit news cooperative, The AP applies any
`
`DENY.
`
`incidental profit to its news operations.
`
`79.|The AP’s commitmentis not limited to time and money. Its
`DENY.
`
`reporters and photographers often put their lives in jeopardy to gain access to and report
`from dangerousand unstable regionsof the world or areas affected by catastrophes and
`natural disasters. More than 30 AP journalists have lost their lives in the line of duty
`since the cooperative wasestablished. In addition, in the last few years alone, nearly 20
`AP journalists have been incarcerated or otherwise detained, and at least several more
`have been harassed, intimidated or beaten. Most recently, a photographer from The AP
`was imprisoned for two years without any formal legal charges because ofhis dramatic
`
`and poignant photographsofwar.
`
`80.
`The AP’s newsgathering activities require it, often at great
`expense, to remain a strong advocate for the First Amendment and opennessto public
`records in the United States and in other countries; to protect its journalists who have
`
`DENY.
`
`been detained or imprisonedin the course of their duties; and to provide both security to
`
`journalists stationed in conflict zones and comfort to their families.
`81.
`Each story that The AP reports, whetherin text, visual, audio, or DENY.
`graphical form, represents and reflects the efforts ofreporters on the ground. With
`intimate knowledgeof their beats and sources, reporters spend many hours — if not
`weeks — getting their stories. In doing so, they benefit from The AP’s international
`physical presence, as well asits freedom of information actions, transparent editorial
`
`-19-
`
`

`

`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 20 of 36
`Case 1:09-cv-01123-AKH Document 242-1 Filed 03/11/11 Page 20 of 36
`
`standards,editorial checks and balances, and efforts that help to safeguard journalists
`
`from threats to their safety and defend journalists from incarceration. It is for all of these
`
`reasons that the public has cometo rely upon The APto inform it about the most
`
`significant events occurring around the world.
`
`82.
`
`In addition to payingits journal

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