Comments on: The Obama “Hope” Poster Case — A Copyright Catch-22?

By: Jolanda-Pieta van Arnhem, M.F.A. » Blog Archive » @EFF via Twitter: Shepard Fairey admits lying in fair use case — Prof. Bruce Boyden weighs in

Fri, 23 Oct 2009 13:48:39 +0000

[...] Is Fairey’s suit doomed to fail before it even gets off the ground? [...]

By: Bruce Boyden

Bruce Boyden — Fri, 17 Apr 2009 20:01:39 +0000

Fawn, great question. Jason Mazzone asked the same thing over on Concurring Opinions a little while ago.

I haven’t thought this all the way through, but if Fairey’s poster is not infringing, I would think it’s because he didn’t borrow enough of the copyrightable expression from the photo — and relatedly, that the majority of the creative expression in the poster is Fairey’s own work. If that’s the case, then I think ironically Fairey might have a pretty good claim against at least some of the other HOPE posters, those that are not parodies. (Many of them probably qualify as parodies, however.)

As for why he hasn’t sued, he may be waiting the outcome of the AP litigation to determine his own rights in the image. Also, litigation is expensive; it may simply not be worth the time and cost to him, even if he wins. Or, he may not care, although he has had lawyers send cease and desist letters in the past.

By: Fawn Weaver

Fawn Weaver — Fri, 17 Apr 2009 03:38:32 +0000

This question is a bit off topic — but still relates. I’ve seen alot of “HOPE” posters that have been changed to include a picture of someone other than Obama or to include a symbol, etc. Since Fairey has the copyrights for both the HOPE and PROGRESS posters, would this be considered copyright infringement? If so, why were so many allowed to be created?

By: Bruce Boyden

Bruce Boyden — Thu, 26 Feb 2009 19:45:50 +0000

Thanks Peter, this is very helpful information. I figured something like this might be the explanation, but it’s interesting that the photos are getting registered as a compilation; that leaves me a little unclear on what the status of the underlying photos is. All I can see online is:

Authorship on Application: photos: Yasmin Aboyter, Christian Abraham, Rich Abrahamson, and 1,478 others; photos, text & compilation: Associated Press, employer for hire.

If I’m reading that right, Aboyter, Abraham, etc. are the authors of individual photos; AP is the author of the compilation, text, and perhaps other photos as works for hire. It will be interesting to see what AP submits with its answer and, I suspect, counterclaims.

By: Peter Hirtle

Peter Hirtle — Thu, 26 Feb 2009 00:19:54 +0000

I assume that if the AP owns the copyrights, they would claim registration under VA0001356885 in the Copyright Office’s database for “Group registration of an automated database entitled Associated Press news photographs published updates from 3/01/2006 to 4/30/2006.” (The image appears in the AP Images database.) My understanding of registrations of online materials is that it is not necessary to include an entire copy of the database in the application to be on file with the Copyright Office, but only 50 pages and/or records, and so it would be impossible to tell if the Obama image was actually part of the database registration.

Whether it is legit to use database registration rather than group registration of photographs (which would have provided information on author, etc.) is another question.