The Obama “Hope” Poster Case — What’s a “Visual Reference”?

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

This is a (second) unplanned additional post in my series on the copyright and litigation issues raised by the Obama “Hope” poster case. One of the key fights in the case is going to be over what, exactly, the relationship between the two images above is. Is it the use of a photograph for a transformative purpose, or is it merely plagiarism for commercial benefit?

One hint at how Fairey’s lawyers are going to argue this question is in the complaint‘s use of the phrase “used as a visual reference.” (Compl. ¶¶ 18, 34.) In a previous post, I expressed puzzlement at that phrase, which appeared to me to be just a way of obfuscating the creation process behind the poster. The AP’s lawyers may have been puzzled too, because they did not refer to the term at all in their lengthy counterclaims; instead, they simply referred to Fairey’s “copying.” (Answer ¶ 129.) But I’ve since come across an indication that “reference” may be a technical term in the art world, one that appears to mean the target of an intended visual allusion.

Assuming that’s what it means, I’ve got three quick comments on the use of the term “reference” in the complaint.

Continue ReadingThe Obama “Hope” Poster Case — What’s a “Visual Reference”?

The Obama “Hope” Poster Case — AP Strikes Back

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

Today, the AP filed its response to the Fairey complaint—and as I predicted, the AP is asserting counterclaims for copyright infringement. Like Fairey’s complaint, the AP’s counterclaims go well beyond merely stating a cause of action, and attempt to win the battle for positive publicity as well. (Note to my Civ Pro students: Take a look at these pleadings if you want to see skillful examples of what I was talking about when I mentioned complaints that go beyond a “short and plain statement.”) Both sides in this case have their eye not just on the law, but on the ordinary, nonlegal intuitions of the press, the judge, the jury, scholars, and bloggers such as myself. (Indeed, I got a copy of AP’s press release by email. To Fairey’s attorneys: Feel free to reciprocate!)

I have a few quick observations.

Continue ReadingThe Obama “Hope” Poster Case — AP Strikes Back

The Sex Crimes Panic

I have a new paper on SSRN regarding the seemingly endless fascination of American legislators with sex crimes.  Here is the abstract:

Sex crimes continue to be a matter of intense legislative interest at both state and federal levels of government, as evidenced by a flurry of recent enactments expanding sex offender registration requirements, prohibiting sex offenders from participating in “Halloween-related” activities, and facilitating the exclusion of sex offenders from social networking websites. Although legislative activity in the area of sex crimes has gone through regular phases of high and low intensity across the past century, the current high-intensity phase, dating from the 1980s, has lasted an unusually long time. Moreover, this high-intensity period displays the characteristics of what historians and sociologists have termed a “moral panic,” marked particularly by the rapid adoption of many new laws that seem poorly designed to achieve their community-protection aims. This Essay, which introduces a forthcoming issue of the Federal Sentencing Reporter devoted to recent developments in the punishment and management of sex offenders (Vol. 21, Issue 2), offers a critical overview of the new laws and considers why the sex crimes panic has proven so much more durable than the crack cocaine panic, which also arose in the 1980s.

Laws aimed at controlling sex offenders are invariably couched as child-protection measures — and, really, who can vote against protecting children? — but pay little attention either to the social scientific evidence regarding the greatest threats of sexual violence to children (family members and acquaintances, not the random strangers caught in the ever-widening web of sex-offender registration laws) or to the possibility that scarce criminal justice resources are being increasingly diverted from more productive uses to dubious new social control measures.  Sex offenders, of course, will draw no public sympathy when it comes to legislative overreaching, but in the current fiscal climate all taxpayers have an interest in ensuring that new laws are cost-effective responses to serious social problems.  And, as the New York Times recently reported, fiscal concerns seem to be driving a backlash against one of the more misguided recent enactments in this area, the so-called Adam Walsh Act.

Continue ReadingThe Sex Crimes Panic