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Judge Urges Settlement In Shepard Fairey Vs. AP Copyright Dispute Over Obama HOPE Poster

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NEW YORK — A judge urged Friday that a copyright dispute between an artist and The Associated Press over the Barack Obama "HOPE" image be settled quickly, saying it was likely the AP would win the case.

U.S. District Judge Alvin Hellerstein made the suggestion at a hearing in which he ordered Shepard Fairey's lawyers to turn over records of communications Fairey had with his lawyers before he sued the AP in February 2009. He also said AP lawyers can depose Fairey a second time.

"I have a feeling ... that whether it's sooner or later, The Associated Press is going to win," Hellerstein said. He said a settlement might be possible if the AP dropped some of its demands that Fairey be punished for copyright infringement and for his actions in the case.

Fairey has sued the AP, charging that his artwork does not infringe copyrights held by the AP. In a countersuit, the AP has said the uncredited, uncompensated use of one of the news cooperative's pictures violated copyright laws and posed a threat to journalism.

Neither side embraced the judge's suggestion to settle the case.

AP lawyer Dale Cendali told Hellerstein the news organization was seeking "substantial damages."

"Our primary objective is to make it clear to the world that The Associated Press is the copyright owner of that photograph and what he did was not fair use under copyright law," Cendali said. "The Associated Press truly has been aggrieved here."

She said depositions and other evidence in the case had revealed that Fairey has earned at least $2 million from the sale of products derived from his depictions of a 2006 AP photograph of then-Sen. Obama at the National Press Club in Washington.

She said another $2 million has been earned by a company that sells merchandise such as T-shirts and posters based on Fairey's depictions of the photograph.

Fairey attorney Geoffrey Stewart said it was not true that his client had earned millions of dollars, especially since he has donated proceeds to charities. He said a financial award against his client would likely bankrupt the artist.

Fairey's current art show in Manhattan contained "not a single Obama image and it's sold out," he said.

In a statement after the hearing, Stewart said he didn't think Hellerstein's statement that the AP would win "indicates a prejudgement of the case."

"We continue to believe there is a strong basis for fair use in this case, and Judge Hellerstein made clear that he hasn't even begun to focus on the fair use issues," he said.

Hellerstein ordered the disclosure of some of Fairey's communications with his lawyers under an exemption that allows the disclosure if a possible fraud or crime is involved. The judge said he questioned the credibility of Fairey, who was not in court.

Fairey is under criminal investigation after he said he erred about which AP photo he used as a basis for "HOPE." He acknowledged that he had submitted false images and deleted other images to conceal his actions.

Hellerstein ruled after Cendali said Fairey revealed in a deposition that he did not realize he had made a mistake about which photograph he had based his Obama poster on until two days after he filed his lawsuit against the AP.

He claimed in his lawsuit that the poster was based on a photograph of Obama seated next to actor George Clooney.

The difference could be pivotal in a fair-use case because a photograph of Obama with someone else would have to be changed more than a picture of him seated alone. The degree to which a work of art transforms copyrighted material is a major factor in fair-use claims.

Cendali said the AP was interested in the communications between Fairey and his lawyers to show that he purposely chose the wrong photograph, thinking it would help his legal position.

"If we can show he's continuing to lie, it would be another blow to his credibility," she said.

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