Comments on: The Obama “Hope” Poster Case — Why New York?

By: @EFF via Twitter: Shepard Fairey admits lying in fair use case — Prof. Bruce Boyden weighs in –

Fri, 23 Oct 2009 14:27:26 +0000

[...] Why did Fairey file in the Southern District of New York? [...]

By: Bruce E. Boyden

Bruce E. Boyden — Sat, 17 Oct 2009 20:42:32 +0000

That’s an interesting case, Alicia, thanks. I hadn’t seen that one before. NAFP involved a dispute over checks issued to AP freelancers that bore the legend: “In consideration of the transfer of any and all copyrighted ownership in the news materials described above. Endorsement signifies consent.” The court held that this could conceivably satisfy the Section 204(a) signed writing requirement for a transfer of ownership, depending on the circumstances.

Is that what Garcia allegedly signed? Hard to tell. The AP answer to his counterclaims says he entered into two agreements: first, on being hired as a staff photographer (which is allegedly what he was at the time of the Clooney/Obama assignment), Garcia “acknowledged in writing that to the extent the staff photographer position for which he applied and was ultimately hired was covered by the Guild’s collective bargaining agreement, he would be subject to the terms and conditions of that agreement.” And second, PRIOR to that, he had worked as a freelancer, “at which time he signed a written agreement transferring any and all rights in and to any works he created for The AP, including any copyrights, to The AP.” If that’s referring to the check legends, it seems like pretty weak evidence.

By: Alicia Wagner Calzada

Alicia Wagner Calzada — Sat, 17 Oct 2009 17:08:48 +0000

The Southern District of New York is also a potential problem for intervenor Mannie Garcia, if he endorsed his paychecks from the Associated Press (as opposed to direct deposit).

See National Ass’n of Freelance Photographers v. AP, 1997 U.S. Dist. LEXIS 19568 (S.D.N.Y.)

By: The Obama “Hope” Poster Case — Who Owns the Photo? : Marquette University Law School Faculty Blog

Thu, 12 Feb 2009 20:12:17 +0000

[...] (This is the second in a series of posts on Fairey v. Associated Press, a copyright infringement case filed in New York on Monday involving the Obama “Hope” poster at right. See the first post.) [...]

By: Bruce Boyden

Bruce Boyden — Wed, 11 Feb 2009 21:08:23 +0000

They did take that risk. As it turns out, though, they wound up with a perfectly fine jurisdiction for them, despite the Blanch precedent, so maybe it wasn’t that much of a risk at all. But yeah, in general, if you want to control the choice of forum, don’t send a letter like that.

Another thought has occurred to me, which is that maybe Fairey and his lawyers, heartened by Blanch, are taking the fight to copyright owners on their home turf, so to speak, and seeking to make the Second Circuit more friendly for defendants. Fairey is someone who’s demonstrated he’s not afraid of legal liability, after all.

By: Chris King

Chris King — Wed, 11 Feb 2009 15:15:16 +0000

I wonder why the AP sent Fairey a letter with a sue or be sued deadline? It seems that the AP ran the risk of Fairey’s laywers picking a case-sparse circuit where neither side knows the devil. Just like the AP, Fairey seems like he would be subject to personal jurisdiction nationwide, at least with respect to the “iconic” HOPE poster. From the little I know about Fairey, he doesn’t seem to be the type to admit that his use of the AP photograph was not fair use and acquiese to the AP’s demands without a lawsuit. The AP seems to have voluntarily given up an important strategic advantage (chosing the venue) without a corresponding benefit.