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).
(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.
(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.
(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.
(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?
(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.
(This is the second in a series of posts on Fairey v. Associated Press, a copyright infringement case filed in New York on Monday involving the Obama “Hope” poster at right. See the first post.)
There’s one big mystery that AP needs to clear up right away in this case: who owns the copyright in the photograph at left, taken by Mannie Garcia at the National Press Club on April 27, 2006? If the AP doesn’t own any portion of the copyright, but is merely a nonexclusive licensee, then it can’t sue for infringement. Intriguingly, Garcia himself says that he believes he owns the copyright, not AP:
The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.
So what are the odds that the AP doesn’t own the copyright in the photo at issue? And if it doesn’t, what does that do to Fairey’s suit for a declaratory judgement?
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?