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.

Owners, Borrowers & Thieves 2.0

By Pete Salsich III

Coming soon to a blogoshpere near you . . .

As regular readers of this blog know, we have often used this space as a means to follow and comment on the continuing tension that results from trying to fit new technologies, new types of content and new content delivery systems into old paradigms of intellectual property law.  Sometimes it's copyright -- for example, YouTube's assault on (or defense behind) the DMCA;  sometimes its trademark -- for example, whether Google Keyword ads constitute trademark use for purposes of an infringement claim; sometimes it's even Comics!

Recently we've realized that our mutual interest in emerging technologies and how the law practice can adapt to a changing IP environment has been prompting us to adapt our blogging to fit our own new paradigm.  We're very excited about some changes that will be coming shortly, including adding a fresh new voice or two.

We hope we've been "fairly useful" (to borrow Professor Sag's great blog title) so far, and hope you'll check in regularly as we go forward.

Stay tuned . . .  

Judicial Ideology and Right of Publicity Cases

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William Patry, the Mack Daddy of Copyright, has a fascinating post entitled, "The Effect of Judicial Ideology in IP Cases," on his eponymous blog.  (Ah, I finally found a way to use "eponymous.")

Patry discusses an empirical study by Professors Matthew Sag, Tonja Jacobi and Maxim Stych, posted here on the Social Science Research Network, in which the authors present the results of their examination of the past 22 years of Supreme Court decisions in the fields of patents, copyrights and trademarks.  According to the abstract of their article, their analysis shows "that ideology is a significant determinant of cases involving intellectual property rights."  Even more interesting, ideology seemed to dictate different results depending upon the type of intellectual property involved, e.g., the Justices were more likely to vote against a trademark owner but for a copyright owner.

On a less scholarly basis I have noticed similar -- and similarly unexpected -- ideological divides in lower courts in the field of right of publicity.  Given that the right of publicity is a property right, judges from which end of the political spectrum are more likely to protect it?  Wrong.

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Contracting Away Fair Use Rights: Amazon's MP3 Store, Lucasfilms and Blanket Licensing

By Pete Salsich III

It used to be pretty simple.  You went to a record store (or mailed in your record-club form), bought an album or CD, and you owned it.  As the owner, you had certain rights--under the First Sale and Fair Use doctrines, you could make a copy for your own personal use, give it away,  share it, even sell it.  Easy, right?

Well, the times they are a'changin'.  Like many people, I haven't bought a new CD in a long time -- I have all my music on my iPod and download it from iTunes (legally, of course).  Now I'm excited about Amazon.com's new MP3 Store, which promises cheaper music downloads, better sound, and--most importantly--the music is DRM-free, meaning I can play it on any device.  Great! 

But not so fast . . .

 

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Empire Declares Truce with Rebel Alliance

By Geoffrey Gerber

Sunday night, my multiverse collapsed upon itself. The Season Six premiere of Family Guy: Blue Harvest has been stalking me all summer.

At Comic-Con International in San Diego, Friday was Star Wars Day and Seth MacFarlane discussed the premiere episode during the Family Guy panel. You may have noticed sketches of Yoda and an Imperial Stormtrooper (along with tagline “May the Force be With You”) on the menu I used to discuss enforcement practices. Two weeks later, I was at the ABA Annual Meeting in San Francisco attending the Intellectual Property Law Section’s activities. While there, I had the opportunity to hear David Anderman Senior Director of Business Affairs (and lead attorney) for Lucasfilm Ltd. speak on a panel entitled “‘The Whole World is Watching!’ Privacy, Copyright and Parental Control in the Age of YouTube, MySpace and Beyond,” sponsored by the Forum on Entertainment and Sports Industries. During Anderman’s portion of the panel he discussed the Lucasfilm approach to enforcement and the Family Guy premier. Anderman explained how Lucasfilm’s relationship with Family Guy exemplifies a realistic approach to enforcement that understands branding and that has evolved with technological changes in content creation and distribution.

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James Brown "Live": Papa's Got a Brand New Claim

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While death has ended James Brown's reign as Hardest Working Man in Show Business, his post-mortem litigation may yet snatch from Elvis the title Hardest Work Corpse in Lawsuits.  His latest appearance was in the Illinois Appellate Court, where he was the headliner in the appeal of a right-of-publicity claim against a company that licenses copyrights for stock photographs.  The case presents an intriguing and somewhat confusing fair-use struggle along the border between right of publicity and copyright law.

The basic facts are straightforward: The main defendant, Corbis Corp., licenses the use of stock photographs and images. Its customers range from newspapers and magazines to advertising agencies.  It had, for example, given Rolling Stone Magazine a license to use certain photographs of James Brown in a profile the magazine published under the title Being James Brown.

So far, so good.  Entirely proper, no cause of action.

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Go, Shorty, It's Your Copyright -- Not

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"The law is a seamless web."  Whether Oliver Wendel Holmes or Frederick Maitland first made that enigmatic claim, one way to put it to the test is to set aside the familiar cubbyholes we use to sort out legal issues -- antitrust, copyright, UCC, trusts & estates -- and instead pick a theme.  My fellow blogger Geoff Gerber has picked comic books as his theme.  Study the law of comic books, O Spidey, and you may indeed find yourself in a seamless web.  My current seamless -- or perhaps seamy -- web is the realm of dirty words and dirty pictures, a/k/a, "Censorship & the First Amendment," a course I teach at Washington University School of Law.

But if you'd prefer to earn a Juris Doctor Dre or would rather be sippin' on Gin & Jurisprudence, try the Law of Hip Hop, which traces its origins to the Mack Daddy of "fair use" cases, Campbell v. Acuff-RoseHow can you not love a U.S. Supreme Court decision that quotes these timeless lyrics from Luther "Luke" Campbell's version of the Roy Orbison classic, "Pretty Woman":

Big hairy woman, you need to shave that stuff
Big hairy woman, you know I bet it's tough
Big hairy woman, all that hair it ain't legit
Cause you look like "Cousin It"
Big hairy woman

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Beckham Beckons: Using Real People's Names In Movie Titles

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The recent explosion of media coverage over the California arrival of David Beckham got me thinking about the use -- or more precisely, the "fair use" -- of his name in the title of the motion picture Bend It Like Beckham.  When I first heard that title back at the time of the movie's release in 2002, I had only the vaguest knowledge of David Beckham and made no connection between him and the rest of the title.  Indeed, to this ignorant American the title had mysterious and vaguely erotic connotations, as if it referred to a position in the Kama Sutra.  But the rest of the world, of course, knew immediately that the Beckham in the title was THE most famous athlete on the planet and that the title itself referred to Beckham's amazing skill at scoring on free kicks by “bending" (curving) the ball, which makes it veer out of the goalie's reach.

Knowing Hollywood, we can assume that all of the necessary permissions were signed in triplicate long before the first scene was shot.  But what if Beckham had refused to give permission?  Could you still include the name of the most famous athlete on the planet in the title of your motion picture?  Could you use for free a name that had a commercial endorsement value worth tens of millions of dollars?

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"Hey! (hey!) You! (you!), I wanna be your lawyer!"

By Pete Salsich III

That might be an increasingly popular refrain heard by Canadian pop star Avril Lavigne, who is getting a lot of attention right now for her songwriting practices.  Last week, Lavigne was hit with a copyright infringement lawsuit over her song "Girlfriend."  The plaintiffs are the founder and former road manager of the '70's pop band the Rubinoos.  They claim that Lavigne's hit infringes their 1978 release "I Wanna Be Your Boyfriend."  As you would expect, you can already find many comparisons on YouTube and elsewhere, including the Rubinoos own website.  (Of course, all those who posted snippets of both Lavigne's and the Rubinoos' copyrighted music on YouTube and elsewhere should have a fair use right to do so, as long as they only used as much of the songs as was necessary to facilitate their commentary.)  Eminent copyright scholars like William Patry and almost everyone else seems to have weighed in on whether the suit has merit. 

Lavigne publicly responded this week by essentially asserting a "no access" defense -- that is, she claims she never heard the Rubinoos' song, so couldn't possibly have copied it.  Curiously, Lavigne does not say whether her co-writer, producer/remixer Dr. Luke, ever heard the song.

The "never heard it" defense won't help Miss Lavigne out of her most recent copying flap, however.  In the last two days, similar copying claims have surfaced regarding another of her songs, "I Don't Have To Try."  This time Lavigne allegedly copied the song "I'm The Kinda" by Peaches, an artist (and song) that Lavigne recently publicly stated was one of her biggest influences. 

I'm no musicologist, but at first blush both claims appear to have some merit, and they can't be good for the young pop star's reputation.  It may be great to be in Rolling Stone and on Perez Hilton, but there are better ways to be noticed.

Thoughts to ponder while camped out in front of the Apple store.

By Gary Pierson

Launch day for perhaps one of the most widely anticipated - and certainly one of the most wildly hyped - consumer electronics products in years seems an appropriate time to reflect on the state of the digital music revolution. Apple's iPhone combines, among other features, the high-end cell phone and the now ubiquitous iPod music player. (For deep background, see Marty Schwimmer's analysis of the brief trademark fight Apple stumbled into when it announced the name of the new product nearly six months ago here and here.) As such, it represents the convergence of the phenomenon often credited with pushing the music industry into its current state of plunging sales and the phenomenon much of the industry is looking to for salvation. Regardless of one's view of file-sharing web sites and CD-ripping laptops, the fact that the iPod has been a catalyst to major changes in the way consumers acquire and listen to music cannot be denied. Less certain is whether the practice of purchasing ring tones and other tunes for cell phones will provide the new and sustainable stream of revenue the industry so desperately needs.

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The Karaoke Case: Fair Use or Infringement To A Fair-Thee-Well?

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At some point early on in a copyright lawyer's career (or at least in this copyright lawyer's career), usually while you are seated in a chain restaurant listening to the waiters sing an unfamiliar birthday song to the beaming fellow at the next table, that mental lightbulb blinks on as you realize, "They aren't singing the Happy Birthday song because it's still covered by copyright, this is a commercial establishment, and they'd have to pay royalties."  And then you connect the dots to the "fair use" doctrine, realizing you can still sing it at home or at a friend's house without fear of a visit from an ASCAP goon.

Take that thought over to the realm of Karaoke, which is the subject of a fascinating recent decision by the Sixth Circuit in Zomba Enterprises, Inc. v. Panorama Records, Inc.  As Circuit Judge Karen Nelson Moore astutely observes in her opening paragraph:

Countless people have lined up at various venues to perform their favorite songs with, and in front of, their friends. But few participants (with the possible exception of IP lawyers) ever stop to consider the intellectual property regime governing karaoke.

While the decision offers important insights on various copyright topics, including calculation of statutory damages, the "fair use" discussion will, if nothing else, make you admire the moxie of the defendant's attorneys -- or at least make you sympathize with their plight.

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Dead Celebrities and Dead Presidents: Round 2

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Following up on Geoff's post on the recent New York federal district court decision finding that Indiana's privacy statute (and, in passing, New York's as well) does not grant celebrities post-mortem publicity rights, the New York State Assembly and Senate now have pending before them legislation to revive dead celebrities -- or, more precisely, to give heirs the ability to turn dear old mom into hard cash.  In my other life (which also includes the pen name Michael Baron), I am a member of the Authors Guild, which has launched a campaign opposing enactment of the legislation.  Check it out.

Carol Burnett and Fox TV: Who's Fair and Balanced Now?

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The rulings contained within District Judge Dean Pregerson's opinion dismissing Carol Burnett's lawsuit against Twentieth Century Fox could have been predicted the moment we heard about the case. If ever there were a textbook example of the "fair use" doctrine in copyright law and the "parody" exception in trademark and dilution law, this was it.

Burnett had sued over a short clip from Fox's animated television show, Family Guy. In the scene, Griffin family patriarch Peter Griffin and his pals visit a porn shop. Upon entering the store, Peter remarks that it is cleaner than he expected. One of his friends explains that "Carol Burnett works part time as a janitor."  The scene shifts to an animated figure resembling the Charwoman character from the Carol Burnett Show mopping the floor next to bin of life-size blow-up dolls and  a rack of XXX movies.  Judge Pregerson explains:

"As the 'Charwoman' mops, a slightly altered version of Carol's Theme from The Carol Burnett Show is playing.  The scene switches back to Peter and his friends.  One of the friends remarks, 'You know, when she tugged her ear at the end of that show, she was really saying goodnight to her mom.'  Another friend responds, 'I wonder what she tugged to say goodnight to her dad,' finishing with a comic's explanation, 'Oh!'"

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Hillary's Sopranos Spoof: Pretty Woman or the Candidate NOT in the Hat?

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Senator and Presidential candidate Hillary Clinton today unveiled her latest campaign video, the ostensible purpose of which is to reveal the theme song for her campaign.  But what makes it the cleverest campaign video this year also makes it the most interesting copyright "fair use" video this year because, in the words of Kate Philips of the New York Times,

[T]he entire video announcing her choice for a campaign song tracks so closely to the bizarre ending of “The Sopranos” less than two weeks ago - from the soundtrack (”some will win … some will lose”), to the diner, to Bill Clinton’s comment that Chelsea was outside “parallel parking” just like Meadow.

(The Clintons even have a little fun over the onion rings - Mr. Clinton picks up a carrot slice, longs for onion rings but the senator tells him she’s only looking out for him. How’s the campaign going? he asks. She replies, just like A.J., “Focus on the good times.”)

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Copyright Class Action: YouTube and Google Face Another Legal Front

By Pete Salsich III

Is YouTube guilty of massive copyright infringement?  Or is it protected by the so-called "safe harbor" of the Digital Millennium Copyright Act, 17 U.S.C. 512(c)?  Yet another lawsuit now seeks to determine the answer to that question. 

(For a good primer on the DMCA's Safe Harbor provisions, see this very helpful FAQ at the internet law collaborative Chilling Effects Clearinghouse.)

The first big copyright challenge to YouTube's business model came last summer with a lawsuit filed by Robert Tur, a Los Angeles photojournalist whose video footage of the beating of Reginald Denny in the post-Rodney King verdict riots in 1992 became world-famous.  See Robert Tur v. YouTube, Inc., No. 2:06-cv-04436-FMC-AJW, United States District Court for the Central District of California, July 14, 2006.  Tur alleged that his Denny footage, along with copyrighted footage of the OJ Simpson chase and other events was posted on YouTube without his consent and viewed more than 1,000 times.  YouTube has defended by claiming that it is an Online Service Provider (OSP) protected by the DMCA safe harbor because it is not aware of and does not receive a financial benefit from the presence of infringing works on its site and its notice and take-down provisions meet the statute's requirement that infringing works be quickly removed.  YouTube filed a motion for summary judgment on the basis of this defense, which is currently set to be heard on May 21.  Tur has also filed a motion for summary adjudication on more narrow grounds, specifically challenging YouTube's claim that it does not receive a financial benefit from the presence of infringing works on its site.  This motion is also currently scheduled to be heard on May 21. 

The second front opened up in March of this year, when Viacom filed suit against YouTube and its parent Google, alleging massive copyright infringement of hundreds of thousands of Viacom properties.  See Viacom International, Inc. v. YouTube, Inc., No. 1:07-cv-02103 (LLS), United States District Court for the Southern District of New York.  Like Tur, the Viacom case will likely turn on whether YouTube's business model fits within the safe harbor provisions of section 512(c).     

Most recently, just days after filing its Answer in the Viacom lawsuit, and while it awaits the summary judgment ruling in the Tur case, YouTube and its parent Google were hit with another legal challenge to its highly successful but highly controversial business model.  This time it comes in the form of a class action complaint filed by the Football Association Premier League Limited (the top division of English soccer) and Bourne Co. (an independent music publisher in New York). 

Many of the contours of this lawsuit are similar to Tur and Viacom, but the class action approach is a new angle.  For one thing, you too might be a class member if you own the copyright or relevant exclusive rights in a registered copyright or certain sound recordings that have appeared on YouTube any time after December 15, 2005.  Obviously, that potential class is enormous, and probably renders many of YouTube's most fervent devotees potential plaintiffs against it.  I'm not going to try to address all the class certification issues that may come up, but suffice to say that will be a battle in itself.

One of the main substantive challenges brought by the plaintiffs in all three of these cases focuses on YouTube's claim that it does not derive a financial benefit attributable to the presence of infringing material on its site.  YouTube sells advertisements that run along side its video clips, including infringing clips, but these ads are not directly triggered by or connected to any particular video clip, infringing or otherwise.  There can be no doubt that YouTube has made huge amounts of money from these ads, and the plaintiffs all argue that YouTube would not be making the money it has but for the presence of so much infringing material on its site.  This could ultimately be a decisive factor in these cases, in part because a court could find YouTube outside of the safe harbor without having to address the propriety of its notice and take-down procedures.

It will be interesting to watch if any more suits are filed, or if other potential plaintiffs will wait for a key ruling in one of these cases.  The Tur case could lead the way depending on how the court rules on YouTube's pending summary judgment motion.  While the Central District of California's ruling will not be binding on the Southern District of New York, it will likely carry significant weight. 

Almost certainly aware of this, and obviously interested in the pending motions on YouTube's assertion of the DMCA's safe harbor defense, last week Viacom and NBC Universal asked permission to file an amici curiae ("friends of the court") brief in support of Tur's claims on this issue.  According to the court's electronic filing database, however, on Tuesday the court denied this request, finding that the brief was not offered to aid the court in its decision-making (as required for submission of such briefs), but was in reality "an effort by parties engaged in similar litigation against Defendant, to intervene in this case for their own benefit."  Like the rest of us, Viacom and NBC will just have to watch from the sidelines.

We'll be watching these cases closely, and should have more analysis of some of the specific legal issues later. 

Scène à Faire from an Italian Restaurant

By Geoffrey Gerber
Billy Joel played St. Louis in concert last week. As I dropped one of my kids off at school, the DJ on that station played a Weird Al Yankovic parody called "It's Still Billy Joel to Me." I thought nothing of it until the DJ stated he was playing a bootleg copy because Billy Joel refused to give his permission for the parody. Who needs permission for parody?

According to the world's leading treatise on legal issues -- Wikipedia -- parody is an allowed fair use and the artist does not need to get permission. "However, as a personal rule, and as a means of maintaining good relationships within the music community, Yankovic has always requested permission from the original artist before recording his parodies."

So without permission, although Yankovic has apparently performed "It's Still Billy Joel to Me" in concert, he has not recorded the song for release. If that is the case, who is getting the royalty when a DJ plays the "bootleg" performance?

And . . .  because "you can't copyright a name," there are other "It's Still Billy Joel to Me," parodies out there.

It is a little unclear to me how much Weird Al's personal code of conduct requiring permission is driven by his desire to maintain good relationships and how much it is driven by record company concerns. Some of the problems in getting permission over the years appear to have involved differences of opinion between artists and their labels.

When it is not a produced song on one of his albums, Weird Al doesn't shy away from throwing a punch or two. When Eminem refused permission for Weird Al to parody the Eminem music video "Lose Yourself" after previously giving permission for an audio parody called "Couch Potato, " Weird Al pieced together an "interview" he did with Eminem in which he explored the rapper's views on the First Amendment. This is probably more interesting than the song parody itself.

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Copyrights and Music Downloads: Selling or Licensing?

By Pete Salsich III

Confused or conflicted about copyrights and music downloads and the RIAA's aggressive practice of suing its customers?  Me too.  In fact, I don't know how many times this has happened to me:  I'm talking with someone (old friend or brand new acquaintance, it doesn't matter) and it comes up that I am an attorney with a copyright and entertainment practice, and the other person says some version of  either "I can't believe the record companies are suing their customers over music downloads" or "I can't believe people think it's OK to just steal music", etc., etc.  I usually just make a serious face and say "well, of course it depends on several factors, and lawyerblah, lawyerblah, lawyerblah . . . "

I found this post today and I think it neatly sums up the two camps on this issue, and even offers a "modest proposal" for a future "annual license" model as a way to resolve the issue.  It's very interesting reading -- well written and thoughtful (along with the comments and internal links).  I'm not sure it would work, but it's an example of the kind of creative thinking that becomes necessary when new technology stretches the limits of old legal models.