Bruce E. Boyden – Page 49 – Marquette University Law School Faculty Blog

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

Post author:Bruce E. Boyden
Post published:February 11, 2009
Post category:Intellectual Property Law

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?

That Was the Copyright Year That Was

Post author:Bruce E. Boyden
Post published:January 20, 2009
Post category:Intellectual Property Law

I recently compiled a list of the biggest developments in copyright law in 2008, based on a not very systematic survey. I thought it would be worth sharing here, as I know that I often wish for lists like this myself. So here for your perusal is my list, grouped by topic:

A Reminder: You Can’t Subpoena Non-Party ISPs for Emails in Civil Suits

Post author:Bruce E. Boyden
Post published:January 9, 2009
Post category:Computer Law Federal Civil Litigation

I ordinarily wouldn’t blog about an unpublished short opinion from a magistrate judge in the Northern District of Mississippi (even though great things do come from there), but I view this as the leading edge of a wave of such opinions. In J.T. Shannon Lumber Co. v. Gilco Lumber, Inc., 2008 U.S. Dist. LEXIS 104966 (N.D. Miss. Aug. 14, 2008), Magistrate Judge S. Allan Alexander quashed the plaintiff’s Rule 45 subpoenas on Microsoft, Google, and Yahoo, which sought the “entire contents” of the email accounts of three of the individual defendants, employees of Gilco.

In addition to the ridiculously overbroad nature of the requests (all of the emails in their personal accounts?), J.T. Shannon’s subpoenas ran up against the Stored Communications Act (SCA), Title II of the Electronic Communications Privacy Act. The SCA prohibits a non-party ISP from disclosing emails to litigants in a civil case without the consent of its subscriber. This law may seem counterintuitive to litigation attorneys, who are used to being able to subpoena whomever they want within the scope of the Federal Rules of Civil Procedure. But the SCA is not incredibly onerous; it just means you have to request that the party produce their own emails, not the ISP.