In the last several weeks, it’s been revealed that artist Shepard Fairey, who created the iconic “Hope” poster for the Obama campaign on the right, based his poster on a photo taken by AP temporary photographer Manny Garcia, at left. Last week, AP sent a letter to Fairey, requesting “credit and compensation.” (AP) In response, Fairey, represented by the Stanford Fair Use Project and Mark Lemley‘s new law firm, filed suit for declaratory relief in the Southern District of New York. (Complaint)
This suit could raise a number of fascinating copyright issues, some of which I’ve already noted in dispersed comments on other blogs. I’m going to do a series of posts, addressing the following questions:
- Why did Fairey file in the Southern District of New York?
- Does AP actually own the copyright in the Garcia photo?
- Is Fairey’s suit doomed to fail before it even gets off the ground?
- What’s the “original” photo?
- What does the complaint say about the poster creation process?
- What if anything is copyrightable about the photo? Does the poster infringe on that?
- Is the poster subject to a fair use defense?
Why did Fairey file in the Southern District of New York?
Fairey’s lawyers were short on time; their complaint alleges that AP gave them a deadline of February 10 to sue or be sued. Nevertheless, I assume they gave some thought as to where to file. Indeed, that’s the whole reason for bringing declaratory judgement action in a case like this: to allow the would-be defendant a chance to pick a favorable forum instead of the plaintiff. Given that the AP is probably subject to personal jurisdiction nationwide, why did Fairey and his lawyers pick the Southern District of New York, which is within the Second Circuit?
The Second Circuit has long been one of the forums of choice for copyright owners; it doesn’t leap out at me as having a large body of favorable caselaw for Fairey. But there is one shining bright spot for artistic defendants: Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), involving appropriation artist Jeff Koons, who used a piece of a photo from a Gucci ad in a collage in what he claimed was an effort to mock modern consumer culture. The district court (Judge Stanton, now hearing the YouTube case) found Koons’s use of the photo to be fair use, and the Second Circuit affirmed. To determine whether Koons’s use was “transformative,” the Second Circuit looked at whether Koons’s borrowing of the photograph “had a genuine creative rationale” — and to find that rationale it looked to Koons’s own testimony about his purpose. If the court does that here, Fairey will have a big advantage. (I’ll look closer at how this will play out in a later post.) I suspect this explains the choice of forum.
Nevertheless, the Second Circuit is also full of landmines for Fairey. It’s got Boisson v. Banian Ltd., 273 F.3d 262 (2d Cir. 2001), the alphabet quilt case in which a rival alphabet quilt with slightly different colors and shapes was held to be infringing — as a matter of law. That’s right, the judges thought the infringement was so obvious it never even made it to the jury. That’s probably just a flat-out mistake, but it’s still good law in the Second Circuit. If applied faithfully, Boisson means that even copying a thinly copyrighted work with substantial public domain elements can be held infringing.
The Second Circuit’s also got Ringgold v. Black Entertainment Television, 126 F.3d 70 (2d Cir. 1997), in which a background use of a print of a quilt was held to be infringing when it was used as set decoration in a television program (i.e., art, just like Fairey’s) for all of 26 seconds. The fair use defense was rejected in part because the use of the poster deprived the artist of a potential market. What market? Not the market for the quilt, which no one would use a TV program as a substitute for. No, the market the program intruded on was the market for use of her quilt as a set decoration on television programs. So, Fairey’s fair use defense could get hung up on the argument that he deprived the AP of potential licensing revenue, not in its main market (news photos), but in the subsidiary potential market for use as a poster.
So the Second Circuit has the sheltered harbor of Blanch, but also the rocky shoals of Boisson and Ringgold and other cases. What were Fairey’s other choices for where to file? He could have filed in the Ninth Circuit, which also has a large body of copryight caselaw — but it’s extremely confused, and almost nonsensical on the issue of how to determine substantial similarity, which could be an issue here. (See, e.g., Bill Patry’s comments.) Fairey could also have filed in some other circuit, say one with a good transformative use case or two, but without much of a history of copyright precedents. In circuits that are case-sparse, it is more difficult to predict how courts will come out, and more likely that judges will simply follow their intuitions — which could be bad for Fairey, since one easy snap judgement to make here is that the poster is simply a copy of the photo. In choosing the Second Circuit, Fairey’s lawyers seem to have chosen the devil they know, or at least can predict, over the devil they don’t.