IP Colloquium Tackles Fairey v. AP

Intellectual Property Colloquium Doug Lichtman at UCLA is producing a fantastic series of monthly podcasts on IP issues, called the Intellectual Property Colloquium. This month’s episode is on fair use in the Shepard Fairey case, and features a terrific line-up of guests: Mark Lemley, attorney for Fairey; Dale Cendali, attorney for AP; and Ken Richieri, General Counsel at the New York Times, who adds the view of someone on both sides of the issue. Doug asks some pretty good questions, particularly about the notoriously circular fourth fair use factor (the effect on the potential market). It’s worth a listen, and you can also use it for CLE credit in six states, “and any state that accepts any of those through reciprocity,” which I believe includes Wisconsin (do not rely on me for this).

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The Obama “Hope” Poster Case — Mannie Garcia Weighs In

(This is the 7th in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

[Update (7/23): The court granted Garcia’s motion to intervene, which was unopposed. AP’s and Fairey’s answers are due Aug. 14, fact discovery will continue until October, and the next status conference in the case will be Nov. 20, meaning we will most likely not get a summary judgement hearing until 2010.]

With the crunch at the end of the semester, my series on the Obama Hope poster case petered out unexpectedly. Among the events I noted silently to myself in the interim were Fairey’s answer to AP’s counterclaims and a trio of NPR interviews on the case with Shepard Fairey, Mannie Garcia, and law professor Greg Lastowka.

There’s nothing like a fresh filing to get one out of the doldrums, however. On Thursday, the other shoe in this case dropped when Mannie Garcia, the photographer who shot the Obama photograph at issue, filed a motion to intervene in the case as a defendant. (Quick, Civ Pro students: what rule?) Garcia’s proposed answer, counterclaims, and cross-claims assert that the photograph is copyrightable, that Garcia, not AP,  is the copyright owner in the photograph, and that Fairey infringed his copyright. I’ll focus on two interesting aspects of the filing after the jump.

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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.

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