Intellectual Property Law – Page 42 – Marquette University Law School Faculty Blog

The Obama “Hope” Poster Case — How Was the Poster Created?

Post author:Bruce E. Boyden
Post published:February 27, 2009
Post category:Intellectual Property Law

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

There are two intriguing mysteries in the Shepard Fairey case related to how the Obama Hope poster (above right) was created. First, while Fairey’s poster looks pretty similar to Mannie Garcia’s photograph at left, Fairey actually claims he based his poster on a very different photograph, albeit one taken at the same event, with Obama looking in the same direction. Second, the complaint is fairly cagey about the actual creation process behind the poster. In particular, it’s not clear from the complaint whether Fairey simply photoshopped the Garcia photo, or rather created the poster by hand.

Why do either of these things matter? The first issue matters doctrinally; the amount of the copyrighted work that was taken helps to determine both infringement liability and counts in evaluating any fair use defense. The second issue matters more atmospherically; it just seems easier to credit a claim of substantial similarity, or conversely harder to credit a claim of fair use, if Fairey copied the original and altered it down, rather than creating a similar-looking version from the bottom up. I’d venture that that may be true even if the two processes led to exactly the same end product, although that might not make much sense as a theoretical matter.

So what’s the truth? Which image did Fairey use, and what did he do to it?

Litman on the Prospect of Copyright Reform

Post author:Bruce E. Boyden
Post published:February 24, 2009
Post category:Intellectual Property Law

Jessica Litman, the John F. Nickoll Professor of Law and Professor of Information at the
University of Michigan, delivered the Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture yesterday at the Law School. (Audio available here; a print version will be forthcoming in the Marquette Intellectual Property Law Review.) The subject of Litman’s fascinating lecture was “Real Copyright Reform” — the word “real” referring not to what is likely to actually occur, but rather what sort of changes would truly reform the Copyright Act.

Litman believes that yet another wholesale revision of the Copyright Act, akin to those in 1831, 1870, 1909, and 1976, is in the offing. The warning signs are all there — practitioners are arguing that different meanings should be given to the same terms in different contexts, industry players are opting out of the Act’s provisions in private agreements, and the current Act no longer serves any of its constituencies very well. Those constituencies include not only creators and distributors, the primary movers behind previous reform efforts, but now also device makers and, increasingly, ordinary users of copyrighted works, who in the past were treated by copyright law with benign neglect. Now, as evidenced by the RIAA lawsuits and YouTube notice and takedowns, consumers are no longer below the fray; they are getting drawn into the battles between distributors and device makers.

What can legal scholars offer the copyright revision process? Litman was not optimistic that the legislative process would produce a worthy reform, or that scholars would get to play much of a role in it, but she offered three goals the ideal “Copyright Act of 2026” should meet.

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.