Bruce E. Boyden – Page 48 – Marquette University Law School Faculty Blog

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

Post author:Bruce E. Boyden
Post published:February 14, 2009
Post category:Intellectual Property Law

(This is the third in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

Shepard Fairey has sued the Associated Press preemptively. Before the AP could sue him for infringement, he sued for a declaratory judgement under the Declaratory Judgment Act, 28 U.S.C. § 2201, that his poster does not infringe on any copyrights held by the AP, and in the alternative that his poster is a fair use. The advantage of bringing a declaratory judgement action, of course, is that the defendant, not the plaintiff, gets to pick the time and place of the suit.

But if the AP hasn’t yet registered the copyright in the photo, Fairey might be caught in what I’ve described previously as a “Copyright Catch-22“: unable to sue until the AP gets its registration, at which point they’ll promptly sue him rather than waiting around for his declaratory judgement action. In other words, the Declaratory Judgement Act may simply be unavailable, as a practical matter, for some copyright defendants. Assuming the AP hasn’t gotten a registration yet, is Fairey caught in this bind? Maybe, unless the Second Circuit decides to chart a new path on this issue.

ABA Journal Story on YouTube and Copyright Infringement

Post author:Bruce E. Boyden
Post published:February 13, 2009
Post category:Intellectual Property Law

I’m quoted in a story in this month’s ABA Journal on the interaction between copyright law and websites that host user-generated content, such as YouTube. YouTube is defending itself right now in a lawsuit pending in the Southern District of New York brought by the media company Viacom. I analyzed the Viacom complaint in a post over on Prawfsblawg shortly after it was filed—all the way back in March 2007. (I recently checked the docket, and the case appears to still be in discovery. The gears of litigation turn slowly.)

The quote in the article is from a later post looking at the implications of a recent Northern District of California decision—Io v. Veoh—for the YouTube case. While most observers saw the defense win in Io to be good news for YouTube, I saw elements of the reasoning that I thought could pose problems for YouTube. That’s because I’ve long argued that the key good fact for Viacom, and possibly the main reason it sued, was not simply the wide availability of Viacom content on YouTube, but this allegation, from Paragraph 7 of the complaint:

The Obama “Hope” Poster Case — Who Owns the Photo?

Post author:Bruce E. Boyden
Post published:February 12, 2009
Post category:Intellectual Property Law

(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.)

There’s one big mystery that AP needs to clear up right away in this case: who owns the copyright in the photograph at left, taken by Mannie Garcia at the National Press Club on April 27, 2006? If the AP doesn’t own any portion of the copyright, but is merely a nonexclusive licensee, then it can’t sue for infringement. Intriguingly, Garcia himself says that he believes he owns the copyright, not AP:

The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

So what are the odds that the AP doesn’t own the copyright in the photo at issue? And if it doesn’t, what does that do to Fairey’s suit for a declaratory judgement?