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