During last Friday’s hearing in the copyright dispute between artist Shepard Fairey and The Associated Press, U.S. District Judge Alvin Hellerstein said he thought that sooner or later, the AP would win. Hellerstein urged the parties to settle.
Fairey’s attorney Geoffrey Stewart has issued a statement saying the legal team did not believe that this was tantamount to a pre-judgment of the case, because fair-use issues have not yet entered the discussion. Stewart stressed that such issues are central to the case.
The AP, however, also raises the issue of profit. The organization claims Fairey grossed something like $4 million from posters and merchandise bearing the HOPE artwork, which was based on an AP photo shot by Mannie Garcia. Fairey disputes the amount, though he has admitted both using the photo and previously misidentifying it—which led to a separate dispute as to whether the misidentification was a mistake (Fairey’s version) or a willful lie to best support a fair-use legal strategy (as per the AP).
Whichever was the case, it was a huge hit to Fairey’s credibility and had a legal cost: Hellerstein ordered Fairey’s lawyers to turn over their communications with their client to the AP. The disclosure will be used to determine whether there was intentional fraud or crime in Fairey originally identifying a different photograph as the source. Hellerstein also allowed AP attorneys to depose Fairey again.
A settlement, however advisable, seems highly unlikely.