NYC judge orders disclosure of those who deleted or destroyed records in ‘HOPE’ artist case
By Larry Neumeister, APMonday, April 5, 2010
Evidence ordered released in ‘HOPE’ artist case
NEW YORK — Lawyers for artist Shepard Fairey must disclose the identities of anyone who deleted or destroyed records related to a copyright dispute over the Barack Obama “HOPE” image, a judge said Monday.
U.S. District Judge Alvin K. Hellerstein ruled in favor of The Associated Press in most of its requests for evidence, including when Fairey’s lawyers first knew the AP had asserted that it holds the copyright to a photograph the image was based on.
He said lawyers must disclose relevant documents that were deleted or destroyed from Fairey’s files and when the deletions or destruction occurred.
Hellerstein further said the lawyers must disclose the identities of anyone who tampered with or destroyed records, commanded and supervised the acts or was told about them.
An attorney for Fairey did not immediately respond to a request for comment on the ruling.
Dale Cendali, a lawyer for the AP, said the news organization was “very pleased” with the order.
“The discovery in this case has been unnecessarily burdensome for The Associated Press as a result of Fairey’s discovery abuses,” she said. “We’re very pleased that the court is requiring Shepard Fairey and his companies to comply promptly with their discovery obligations.”
Fairey sued the AP last year, asking a judge to rule that his artwork does not infringe copyrights held by the AP. The AP countersued a month later, saying the uncredited, uncompensated use of one of the news cooperative’s pictures violated copyright laws and posed a threat to journalism.
Earlier this year, it was disclosed in court that 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.
On Monday, the judge ordered Fairey and his companies to disclose how their computer files were searched for relevant legal records, rejecting arguments that doing so presented an undue burden because former lawyers conducted the search.
“The details of the search, and of what was searched, are relevant to the claims and defenses of this lawsuit, particularly in light of the destruction of documents that occurred in this case,” the judge wrote.
The judge also overruled the objections of Fairey’s lawyers and ordered the disclosure of financial records related to Internet sales of the Obama poster. Hellerstein said the information was relevant to resolve issues of copyright infringement and damages.
The judge said excuses offered by the plaintiffs for not producing all aspects of their financial records were frivolous, and said they must be turned over within two weeks.
