Some Answers Are Not So Hard In The Copyright Debate. Or Are They?

By Dave Rein

One of my favorite sports columnists is Joe Posnanski who writes for Sports Illustrated and periodically, for the Kansas City Star.  But, as insightful and funny as he is about sports and life, he's not the first place to turn for intellectual property issues.  I don't think Posnanski would disagree.  

So why am I reading a copyright article written by one of my favorite technology columnists, David Pogue?  I guess that I can't help myself.

One of Pogue's posts, "No Easy Answers In The Copyright Debate" highlights the never-ending debate about whether it is okay to download someone's creative work without their permission.  The blog post described a song writer's efforts to stop people from downloading his sheet music for free.

The song writer, Jason Robert Brown, was frustrated by the thousands of people who were trading his work for free when he was trying to make his living by selling the sheet music.  His correspondence with one teenager who had a different view is not only an interesting read in that it highlights many of the arguments made by both sides of the debate, but also sheds some light on the cultural issues as well.  A post by Digital Society provides another view supporting the song writer.  But, Pogue's post raises one argument that I had not heard before.  

In the post, he quotes a classical pianist who justifies his downloading of sheet music without permission as an effort to preserve works that would otherwise be lost to the ages of time.  Of course, anyone could justify illegal downloading on this basis.  Nobody would have to honor a copyright if all that he had to say was that his intentions were pure and he was simply acting as his own Library of Congress.

Yet, Pogue does end the post with an interesting question:  Is digital piracy justified if it is difficult or impossible to figure out if the item is for sale?  I think another way of asking the question is  should you be able to use a work if the copyright owner cannot be found?  

I don't think one gets to use a work for free just because it is difficult or even impossible to find the artist or copyright owner of the work.  It is frustrating, however, when a work does not identify the copyright owner.  Unfortunately, after several attempts, Congress has not been able to agree on Orphan Works legislation -- resolving how someone can use a copyrighted work when its owner cannot be realistically determined. 

The failure of Congress to act doesn't justify violating a copyright, but does this debate suggest the need to revisit passing Orphan Works legislation? 

Less Hope For Shepard Fairey in Obama Hope Poster Case?

By Dave Rein

If the street artist, Shepard Fairey, initially thought the copyright litigation over the Obama Hope poster would be a good-natured pillow fight with the Associated Press, he probably knew that it was going to get ugly once it came to light that he was less than truthful to the court in representing which photograph he used to create the Hope poster.

Mr. Fairey sued the AP last year asking the court to declare that the Hope poster does not infringe any of the AP's rights.  The AP countersued for copyright infringement and others have joined or been brought in as well.  It is now getting uglier for Mr. Fairey.  An earlier post describes Mr. Fairey's confession, but the saga continues. The court has shown that it is receptive to allowing discovery not just on which photograph Mr. Fairey actually used, but also on making him name names.

Specifically, Judge Alvin Hellerstein ruled on April 5, 2010 that Mr. Fairey must disclose who was involved in destroying documents in an effort to hide how the Hope poster was actually created:  "Plaintiffs shall disclose the identities of those who did the deletion and destruction and of those who knew about such deletion and destruction."  Mr. Fairey will have to disclose who performed the destruction, who supervised it and who knew about the destruction.   

The court's April 5th order itself may not elicit much excitement, but it raises several questions:  why did the court agree to allow discovery on the destruction of documents?  Although documents bearing on the creation of the Hope poster would be relevant, Mr. Fairey has already admitted that he used the photograph that the AP believed he used.  Does the discovery go to potential sanctions against Mr. Fairey and others who assisted in the destruction of documents?  If so, does the court intend to impose sanctions on top of the related criminal investigation?  Is such discovery relevant to undercut Mr. Fairey's fair use defense?  Neither the court's order nor the joint letter that the parties submitted to the court address the relevancy of the discovery.  

Regardless, the potential that others may have helped destroy documents on Mr. Fairey's behalf means that we may have more twists and turns to come in this case.

Supreme Court Rules On Copyright Registration: What Does It Mean?

By Dave Rein

I previously wrote that I was hoping the United States Supreme Court’s decision in Reed Elsevier Inc. v. Muchnick would finally answer the question of whether copyright registration is necessary for courts to have subject matter jurisdiction. We now have a ruling – it is not jurisdictional -- but the impact of the decision is somewhat unclear.  Certainly, some will cheer (can anyone say Google?) the decision, but for the vast majority of copyright cases, will the decision matter? Maybe, but probably not.

The courts have been split as to whether to dismiss copyright cases for the lack of subject matter jurisdiction if the plaintiff has not registered its copyrighted works. The Supreme Court ruled that registration is not jurisdictional because Section 411(a) did not “clearly state” that it is jurisdictional. 

Instead of jurisdictional, registration is a precondition to filing a lawsuit or similar to a “claim-processing rule.” In other words, a plaintiff needs to comply with the requirements of the statute to proceed, but the failure to do so does not deny the court subject matter jurisdiction. 

Presumably, if the plaintiff sues for a work that is not yet registered, a defendant will now bring a motion to dismiss the claim for the failure to state a claim. If you are in a jurisdiction that previously dismissed cases for lack of subject matter jurisdiction, a court may likely still dismiss the case although the reason for dismissal will change to “failure to state a claim.” Only the label or rationale change. Likewise, if you are in a jurisdiction that took a different approach to registration, the court will likely continue to apply that approach.

The instances of where it does matter are probably few and far between. The background of the Reed Elsevier case illustrates at least one category of cases, i.e. settlements of certain class actions, that will feel the impact of this case. 

In Reed Elsevier, a group of publishers who wanted to publish certain works digitally reached a settlement with almost all of the members of a class of freelance authors – some of whose works were registered and some whose were not. When the district court approved the settlement, some freelance authors objected and appealed. The Second Circuit held that the district court did not have authority to approve the settlement because some of the works were not registered. The Supreme Court reversed and in effect, allowed the district court to approve the settlement even though some class members never registered their copyrights.

Sounds pretty narrow. Who else would care? The thousand-pound gorilla of copyright – Google. If the Supreme Court had said that a court cannot approve a settlement of copyright claims whose class included unregistered works, how would have changed the proposed Google Books Search Settlement?  If the final settlement proposal does not include unregistered works (except foreign works), then perhaps not much.  But, does anyone think that the book search is the last expansive project Google will take on?  I doubt it.

 

Federal Circuit Says Korean War Memorial Stamp Violated Sculptor's Copyright

By Dave Rein

Sometimes a 37¢ stamp does buy quite a bit.  One lucky sculptor, Frank Gaylord, may find that such a stamp could give him some extra spending money in the neighborhood of six or seven figures.

The Court of Appeals for the Federal Circuit recently reversed the lower court and ruled that the U.S. Postal Service violated Mr. Gaylord's copyright when it issued a stamp based upon a photograph of a sculpture called "The Column".  The Column is composed of 19 statutes representing a platoon of soldiers such as the one on the left and is part of the Korean War  Memorial.  

Years after the memorial was opened, the Postal Service decided to use a photograph of the Column that John Alli shot early in the morning after a snowstorm.  It paid Mr. Alli $1,500 to use the photograph.  

To show how difficult it can sometimes be to determine who owns a copyright, Mr. Alli believed he had authority to commercially exploit his photograph because he entered into a license agreement with an entity that said that it held the copyright in The Column.  Only later did Mr. Alli learn that Mr. Gaylord actually held the copyright.

While it may have been difficult for Mr. Alli to determine who owned the copyright in The Column, the government was certainly aware of Mr. Gaylord as it worked with him on certain aspects of The Column (the degree of which was disputed).  Surprisingly, it never required Mr. Gaylord to either share his copyrights or provide it with a license to use The Column. 

Mr. Gaylord sued the Postal Service claiming that he was owed a 10% royalty on the sales of $17 million worth of postage stamps plus other merchandise that featured images of the stamp.  

The parties agreed that Mr. Alli was entitled to his own copyright protection in his photograph as a derivative work. Although the parties stipulated that the photograph was a derivative work, as I noted elsewhere, this is still an open question.

There were multiple issues before the Federal Circuit, but the main one was whether or not the  stamp's depiction of The Column was fair use under 17 U.S.C. § 107.  It was not only the crux of the parties' argument, but also one of the first times that the Federal Circuit weighed in on fair use.

Typically, fair use is "for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research", but it also applies more generally to uses that fall within the four statutory factors.  The Federal Circuit agreed that the stamp did not effect the potential market or value of The Column, but it found that the other three factors weighed against the government.

The parties' argument about the first factor, i.e. the purpose and character of the infringing use, centered on whether or not the stamp was "transformative" of the original sculpture.  Mr. Gaylord argued that the stamp could not be transformative because the stamp and The Column both have the same purpose of honoring the veterans of the Korean War.  The court agreed and rejected the government's argument that the addition of snow and muted colors enhanced the sculpture's surreal character because they do not change the  "character, meaning or message" expressed in the sculpture.   As the court said:  "Nature's decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude."  

The Court of Appeals also seemed troubled that the stamp did not comment upon the original work nor was it part of a biography.   It will be interesting to see whether this case will be interpreted as narrowing the test for what constitutes a transformative use. 

Because the stamp was not a transformative use and was for a commercial purpose, the court held the first factor weighed against fair use. The second (the nature of the copyrighted work) and third (the amount and substantiality of the portion used) factors also weighed against fair use according to the Federal Circuit.  At least one commentator believes that the Federal Circuit's decision was right.  

Regardless of whether it is right or not, this case illustrates the importance of licensing.  The government decided it did not need a formal agreement that allowed it to use the sculpture.  I applaud public entities for making sure that they treat artists fairly, but they also need to make sure that they think through the repercussions of not obtaining some protection in the form of joint ownership in the copyrights or a perpetual license to use the copyrighted works upon terms that are fair for everyone.  

Frisbee and Picking the Perfect Trademark

By Dave Rein

Pluto is no longer a planet.  It is also no longer the name of the flying disc now know as a Frisbee, but which was once known as "Pluto's Platter."  I stumbled upon that bit of trivia in reading about the passing last week of the inventor of the Frisbee, Walter Morrison.  But, selecting or changing a product's trademark is no trivial matter as the iconic Frisbee shows.   

I can't say whether Mr. Morrison's selection of Pluto's Platter was a good choice from a marketing view.  As a group, lawyers are not the best people to tell you what mark makes the most sense for your product.  Your marketing team or advertising agency are the experts who can help you find a unique, credible mark that will stand the test of time.  Or perhaps you came up with the perfect mark yourself.

What lawyers are good at is helping you narrow your choices to select one that you can protect so as to keep your competitors and knock-offs from using your perfect mark.  They are also good at helping you avoid ones that are too similar to those that others are already using.  Mr. Morrison's selection of "Pluto Platter" for a flying disc was probably a good choice from a lawyer's view.  

Today, a lawyer helping Mr. Morrison select a mark would evaluate which category of trademarks the proposed mark falls within:

  • Coined or arbitrary marks -- made up words like XEROX that do not have any meaning or words that do have meaning such as Apple, but not in the context of computers.  Lawyers love these because courts give them strong protection, but marketing tends to cringe at these because they do not tell the consumer anything about the product.
  • Suggestive marks -- words that suggest some quality of the product or service, but require some thought or imagination to determine the suggestion.  Pluto Platter probably fits here in that the mark suggests its shape and that it flies -- especially in the context of the 1950s UFO craze.  Courts would likely protect this mark, but would not give it as much protection as a coined or arbitrary mark.  
  • Descriptive marks -- words that directly tell the consumer what the product is or describe its attributes.  "Flying Disc" arguably falls in this category.  Marks that fall in this category generally take more effort and time before they become a trademark.  

When the name changed from Pluto's Platter to Frisbee, the mark may have climbed to the strongest category of protection. But, before making the change, someone had to determine if Frisbee was available.  Today, someone looking to see if anyone was using the same or similar mark might search:

There are any number of places to search so not surprisingly, there are professional search companies who can help in this process.  A search for Frisbee might have come up with the Frisbie Pie Company.  Indeed, one story is that college students in New England were actually calling Pluto Platter's, "Frisbies" after the Frisbie Pie Co. whose empty tins were tossed like the Pluto Platters.  Some even suggest that the name Frisbee was used instead of Frisbie to avoid a lawsuit.  A good lawyer can evaluate names like Frisbie that came up in searching for marks and advise the client accordingly.  

Whether the toy company could have used "Frisbie" or whether changing to "Frisbee" avoided a lawsuit will have to be left for another post.  Until then, tell us what you think by flicking us a comment, an e-mail or a Tweet!

Who Dat? The NFL and Trademarks

By Dave Rein

Whether you were looking for false advertising claims on the Super Bowl commercials, roving the streets of Miami looking for counterfeit merchandise or just enjoying the game, the Super Bowl had a little something for everyone.  

The NFL even threw those who have a special interest in trademarks a big meaty bone to chew on when the NFL claimed trademark rights in the chant:  "Who Dat?"  

The origins of "Who Dat" are not entirely clear, but it certainly has been used for many years and most recently by New Orleans Saints fans who chant:  "Who dat? Who dat? Who dat say dey gunna beat them Saints?" 

A furor immediately broke out when the NFL sent cease and desist letters to T-shirt shops in New Orleans selling merchandise with "Who Dat" on them.  Days before the Super Bowl, the NFL appeared to change its position when it claimed that it would only pursue those who use "Who Dat" in connection with other Saints trademarks.

But, there are plenty of others besides the NFL who claim to own a trademark in "Who Dat".  A search at the United States Trademark Office shows applications for "Who Dat" for pretty much any kind of apparel that you can think of, action figures and variations of the mark including "Who Dat!!" for more apparel, "Who Dat? Blues Band" for entertainment and "Who Dat' Je Crois" for T-shirts.  For a store owner such as Lauren Thom, the NFL's announcement that it is no longer laying claim on "Who Dat" only provides some relief given the myriad of claims on the phrase.

I thought it was interesting to review the USPTO applications for "Who Dat", "Who Dat?" and "Who Dat!!" for apparel.  The only difference between the applications, of course, being that one has no punctuation mark and the others have either a question mark or two exclamation marks.  Likewise, other applications simply added "Je Crois" to "Who Dat".  While these applications may be of limited use to one defending against claims of trademark infringement, they do give attorneys who are untangling this web a lot to talk about. 

Regardless, the Saints and their fans had a lot to cheer about this weekend.  In the space of a few days, they not only beat the Indianapolis Colts to win the Super Bowl, but they also beat the NFL itself.  Who Dat!

Correction: the earlier post incorrectly referred to registrations instead of applications. 

You Choose: Four Years of Litigation or Taking Care of the Copyright Portfolio

By Dave Rein

As one of my daughters has discovered Calvin & Hobbes cartoons, I wonder whether she'll be inspired to try some of Calvin's outlandish ideas such as barreling down a steep hillside and over the abyss in a red wagon or if she'll make the proverbial "note to self" not to follow Calvin when the last frame shows the resulting crash.

I get it.  There are metaphors and life lessons and the yearning for a more exciting life.  But, I'm not sure that casting away the "dull and boring" best practices is a good way to protect one's intellectual property.  The Seventh Circuit in Schrock v. Learning Curve Int'l, Inc. helped clarify some lingering questions about derivatives in the copyright world -- at least in that circuit.  As I mentioned in an earlier post, to do so, the parties spent four years just to get to an oral argument before the Court of Appeals.

In reading the opinion, two things struck me that might have avoided the litigation or at least kept it from being so prolonged.  First, it could have registered its copyrights in the toys.  Some of the toy maker's registrations only applied to literary works related to the toys, but not the toys themselves.  Whether the toy maker was the owner of the copyrights and whether they were properly registered (and therefore entitled to all presumptions that follow) was a matter the judges expressed considerable interest in at oral argument.  

Second, the licensing agreement between the toy maker and the photographer consisted of the terms stated in the photographer's invoices.  Leaving the determination of who owns a copyright and its licensing terms to the battle of the forms should make the true copyright owner nervous.  In Schrock, the toy maker realized what happened years after it started doing business with the photographer and asked him to sign a "work for hire contract".   He refused, but even if the photographer had signed the contract years after he first provided photographs, that may not have solved the problem.  Some jurisdictions require that the contract be signed before the work is created or at least require that it memorialize an oral agreement made before the work's creation. That may have been too high a hurdle in this case although it likely would have been effective if entered at the onset of the work.

Regardless of whether a work-for-hire contract would have been effective, the court noted that the parties could have contractually agreed that the photographer would not register his copyrights in the photographs.  Actually, it did more than note that issue.  It remanded the case back to the district court to determine if the parties agreed to such a limitation.   

Certainly keeping up with copyright registrations and thousands of contracts is a constant struggle for companies or individuals that continuously create new content.  In these times when general counsels are under increasing pressure to reduce their departments' budgets, it is even harder to do so.  The challenge then is how can they convince upper management of the wisdom to spend money now to avoid paying even more later.

The parties' ordeal in Schrock may be useful to show that even companies with good copyright practices might benefit if more resources are devoted to auditing the company's contracts and copyrights and maintaining them. Litigation is not always avoidable, but anyone who owns copyrights and enters into contracts involving copyrights might be able to avoid prolonging the litigation and save money in the long run. At least it is better than throwing your copyrights on a red wagon with Calvin and hoping that they fly safely across the abyss.

Debate Continues Whether A Photograph Is A Derivative Work But 7th Circuit Issues Broad Ruling

By Dave Rein

Derivative.  Is there a less appealing or scarier word in which to start a horror novel or blog post? The very word conjures up everything complex in the financial world and is synonymous with our current economic disaster. Woe be to the one who missteps in the financial derivative world for he or she will quickly be escorted by a torch-lit mob to the nearest Congressional inquiry!

So it is in the wide world of copyrights.  The simple mention of the phrase "derivative work" is likely to spur many a copyright lawyer to dust off the copyright statutes and brandish them in one hand while holding a Tiki torch in the other.

When one makes a movie which is substantially based upon a novel, he or she is making a derivative work.  A derivative work is one "based upon one or more preexisting works such as a . . . musical arrangement, dramatization . . . or any other form in which a work may be recast, transformed, or adopted. 17 U.S.C. § 101.   As the owner of the underlying work has the exclusive right to make derivative works, whether a work is or is not a derivative work matters. 

Is a photograph of a sculpture or a toy a derivative work?  Professor Patry  has firmly stated more than once that a photograph of another copyrighted work is not a derivative work, but the extensive comments to his blog posts demonstrate that others are not persuaded.  Likewise, the courts have yet to find their footing on this issue as well. 

And so I've been curious to watch the reaction to the 7th Circuit's decision in Schrock v. Learning Curve.  Short of a few comments including one from Michael Kahn, the reaction has been muted.  No torches, no dramatic readings from 17 U.S.C. § 101 . . . nothing.  Admittedly, the Seventh Circuit two-stepped around the question that we were waiting for it to answer: "Is a photograph a derivative work?"  It did so by assuming -- without deciding -- that the photographs were derivative works.  But, the case is still worth a read whether or not you have any interest in photographs because it did address two broader questions about derivative works: 

(1) Should the new derivative work be subject to a higher standard of originality before it receives its own copyright?

(2) Does the creator of the derivative work need the original creator's permission to register the copyright of the derivative work?

The 7th Circuit said "No" to both questions and changed its prior rulings or at least its dicta that was followed by the lower courts.  The case involved the maker of Thomas & Friends toy trains, Madeline and other toys along with Daniel Schrock who was hired to photograph the company's toys for marketing.  Just like in all good litigation, the relationship soured.  When the toy maker allegedly breached the terms under which the photographs were licensed, Schrock sued for copyright infringement. 

Surprisingly, the toy maker spent considerable time in oral argument pressing that the photographs themselves were not sufficiently original to to be copyrightable.  The 7th Circuit stood fast that the test for whether a photograph is entitled to a copyright is not a high hurdle to overcome and found, like most every court, that originality can be found in the staging of the scene, the choice of perspective, focus, lens and lighting.  As the court said, the toy maker's alternative argument, i.e. that a heightened standard of originality should apply to determine if a derivative work is copyrightable was a more interesting argument -- even if it was equally unsuccessful: 

If the photographer's rendition of a copyrighted work varies enough from the underlying work to enable the photograph to be distinguished from the underlying work . . . then the photograph contains sufficient incremental originality to qualify for copyright.  Schrock's photos of the 'Thomas & Friends' toys are highly accurate product photos but contain minimally sufficient variation in angle, perspective, lighting, and dimension to be distinguishable from the underlying works; they are not 'slavish copies.'

The 7th Circuit also changed course on one other question about derivative works.  The toy maker argued that:  (a)  even though the photographer had permission to take the pictures (it hired him to do so), it never gave him permission to register the copyrights and (b) without registration, the photographer could not sue for copyright infringement.  This had seemed to be the rule of law in the 7th Circuit.  Therefore, any creator of a derivative work would not only have to have permission to create the work, but also the underlying copyright owner's permission to register the copyright in the derivative work.  After Schrock (at least in the 7th Circuit), one who creates a derivative work no longer has to get permission from the owner of the underlying copyright to register the new copyright.  

Could the parties have avoided four years of litigation and lawyers with Tiki torches?  Absolutely!  How they could have done so is the subject of my next post. 

Now For Something Completely Different: Mattel Licenses "Barbie Girl" From Aqua

By Dave Rein

commercial that played this Halloween promoting a new line of Barbie Fashionista dolls reminded me of an earlier blog post in which I wrote about some of the legal lessons learned from Barbie.  One of those lessons involved the parody of Barbie in the song "Barbie Girl" by the group Aqua to which Mattel did not take kindly and sued.  In 2002, the Ninth Circuit ruled against Mattel in an opinion written by Judge Kozinski and in the process, helped shape the contours of the First Amendment and the trademark fair use defense.

The commercial shows that it took seven years, but the parties have apparently heeded Judge Kozinski's admonition that the:  "parties are advised to chill."  In a "Now For Something Completely Different" moment, Mattel and Aqua have joined forces in a series of commercials to promote the Barbie line of dolls and Barbie's first music video by using a reworked version of the "Barbie Girl" song:

I am not privy to the licensing deal, but in answer to a number of commentators and bloggers, Mattel is not using the song for free.  Aqua and MCA Records were successful in their fair use defense because the song is a parody of Barbie.  The reworked song is not.  Nor could Mattel say that it was making fun of itself or of the song.  Instead, Mattel acknowledges that is is using the song because the song has become the "epitome of Barbie" and is now "iconic."

There may be those like Charlie Brown's sister, Sally, who decry that Aqua has "sold out" (7:25 into the video clip) to Mattel, but even Sally can agree that Aqua is getting its "restitution" through this licensing deal even if she lost out on trick-or-treating this Halloween.

A Stunning Confession Potentially Destroys Fairey's Fair Use Defense

By Dave Rein

Source of Poster:  Stephen Fairey; Source of Photograph:  Mannie GarciaDespite depictions in TV shows and the movies, most court cases do not involve dramatic confessions, cover ups and Presidential politics.  Of course, most court cases don't involve Stephen Fairey.  From pasting the Obey Giant (now his Twitter name) and other "Obey" posters on public property (much to the ire of city officials around the country) to talking smack with the Associated Press over the Presidential candidate Obama Hope poster, he seems to seek and thrive on controversey.

But the controversey with the AP over the Obama Hope poster may have seriously backfired on Fairey.  On February 9, 2009, Fairey filed a Complaint in the Southern District of New York saying that his use of a photograph claimed by the AP fell within the fair use defense and therefore, he owed the AP nothing for using the photograph to create the Obama poster.  One former blogger on this site thought that if Fairey's inspiration for the poster did come from the picture of Obama and George Clooney at a press conference as Fairey claimed, then Fairey might succeed.  It is unlikely that we will find out if he was right. 

On October 16, 2009, Fairey confessed that he used a different picture from the same press conference, one that more closely resembles the Obama poster.  A number of bloggers including Tom GralishPhoto District News and others had suspected as much, but Fairey had denied their claims until now.

An AP article appearing in the New York Times could barely conceal its delight of the confession and the news that Fairey's legal defense team from the Stanford Fair Use Project intend to withdrawal their representation because Fairey lied to them and tried to cover it all up. 

Fairey can likely afford to hire other legal counsel, but the legal arguments for his new defense team just got a lot more difficult.  One of the four fair use factors analyzes the amount of copyrighted work taken.  When the Obama Hope poster is compared to the picture that Fairey now confesses to using, this prong may now weigh against him where it may have helped in in the other picture.  

But beyond the simple analysis of the factors, it should be remembered that the fair use defense is an equitable rule.  Fairey's confessed dishonesty undercuts his ability to ask for equity, i.e. fairness.  In other cases, the courts have not looked kindly on those accursed of infringing a work who denied that he or she used the accuser's work and then later tried to invoke the fair use defense.  Further, should this case go to trial, the AP will likely be able to tell the jury that Fairey initially lied about the picture and that he lied because he thought that he would lose if the actual photograph was known.  Much of the jury sympathy that Fairey might have had has likely been lost.

While Fairey's case against the AP still raises interesting questions such as whether the AP or Mannie Garcia, the photographer, own the copyright to the photograph, it now looks like a much anticipated case analyzing the fair use defense will disappoint many.

More Posts