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Shepard Fairey Summary Judgment Order

Shepard Fairey Summary Judgment Order

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Published by Ben Sheffner
Order granting in part and denying in part AP's motion for summary judgment against One 3 Two, Inc. in Shepard Fairey "Obama Hope" case
Order granting in part and denying in part AP's motion for summary judgment against One 3 Two, Inc. in Shepard Fairey "Obama Hope" case

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Published by: Ben Sheffner on Feb 24, 2011
Copyright:Attribution Non-commercial

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07/10/2013

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
SHEPARD FAIREY, et aI.,Plaintiffs,-against-THE ASSOCIATED PRESS, et aI.,Defendants.
-------------------------------------------------------------x
ALVIN
K.
HELLERSTEIN, U.S.D.l.:On February 15,2011, Third-Party Plaintiff the Associated Press ("AP") andThird-Party Defendant One 3 Two, Inc., appeared for oral argument on their cross-motions forsummary jUdgment. The AP sought summary judgment holding One 3 Two liable for copyrightinfringement and for offending the Digital Millennium Copyright Act ("DMCA"),
17
U.S.C.§
1201
et seq. One 3 Two sought summary judgment dismissing the
AP's
claim
of
copyrightinfringement, its claim under the DMCA, and its claim for indirect profits under
17
U.S.C.
§
504(b); the AP opposed the last
of
these on the basis that
it
calls for findings
of
fact. For thereasons provided on the record, I rule as follows.The
AP's
motion is denied in part and granted in part. Genuine issues
of
materialfact exist on the issues (i) whether Shepard Fairey's rendering
of
Barack Obama is "substantiallysimilar" to the
AP's
photograph; and (ii) whether One 3 Two is liable for a violation
of
theDMCA. I hold, however, that should the AP establish copyright infringement, One 3 Two doesnot have a basis to rebut the finding on the ground
of
fair use. I therefore grant the motioninsofar as it seeks to pare the fair-use defense away from the case, but otherwise deny it.
SUMMARY ORDER
09 Civ. 1123 (AKH)
1 
Case 1:09-cv-01123-AKH Document 199 Filed 02/17/11 Page 1 of 2

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