(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.