The Big Deal About the Shepard Fairey News

Yawning Grizzly BearThe Internet is all abuzz about the Shepard Fairey news.  In short, Fairey has admitted that he provided fake documents and destroyed evidence in his lawsuit against The Associated Press about his use of the Barack Obama photograph for his Hope poster. You can read the reports on The New York Times website, in the Associated Press’ press release,  and on the Los Angeles Times’ website. Shepard Fairey has a statement on his site, as well.

The Motion to Amend the Pleadings asserts: “After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference.

Some may wonder what is the big deal about all of this.  Shepard says he made a “mistake” and thus “submitted false images and deleted other images” to conceal his mistake.  Doesn’t everyone do this in a lawsuit? Well, they’re not supposed to and they can be subject to sanctions by the court if they do.

Courts impose a duty on parties to litigation to preserve evidence that is relevant to reasonably foreseeable issues in litigation.  Further, attorneys have a duty, as officers of the court and under the Rules of Professional Conduct, to ensure that this evidence is preserved.  Specifically, Rule of Professional Responsibility 3.4(a) states: “[A lawyer shall not] unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act.” The official comment to the rule provides guidance regarding its purpose and scope:

The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if the relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purposes of impairing its availability in a pending proceeding or one whose commencement can be foreseen.

Further, Rule 11 of the Federal Rules of Civil Procedure provides:

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

If the court finds that Rule 11 has been violated, resulting sanctions “may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.” In Shepard’s case, the court could strike his pleadings, order him or his attorneys to pay a penalty to the court, pay some or all of The AP’s attorneys’ fees, or other sanctions.

The AP press release states that “Fairey’s counsel [including the Stanford Law School Center for Internet and Society] informed The AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.”  Attorneys and their clients sometimes no longer can work together. While the specific rules to withdraw as a party’s attorney vary by court, the Rules of the Southern District of New York provide that: “An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the court and may not withdraw from a case without leave of the court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar.”

Local Civil Rule 1.4. Withdrawal or Displacement of Attorney of Record
An attorney who has appeared as attorney of record for a party may be relieved or displaced
only by order of the court and may not withdraw from a case without leave of the court granted by
order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory
reasons for withdrawal or displacement and the posture of the case, including its position, if any, on
the calendar.

Shepard also asserts in his statement that “regardless of which of the two images was used, the fair use issue should be the same.”  But when examining fair use, the “purpose and character of the use,” considered one of the most important indicators, courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.  Since the Hope portrait is more of a “paint by numbers” rather than a new work of the original photograph, the court is more likely to find that the use was not a fair use.  Read more about fair use in my article.

In sum, the Shepard Fairey news is a big deal. Unfortunately, this news may change the direction of the case. Stay tuned.

Thanks to Joseph J. Delconzo and David Sanger for submitting this topic.

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