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.

Fair Use or Copyright Infringement? Iconic Obama Poster Sparks Debate

By Pete Salsich III

Whether you view it as an iconic image for a hopeful progressive nation or nothing more than a thinly-veiled attempt at Soviet-style propaganda, you've almost certainly seen one of the now-famous Obama posters created by artist Shephard Fairey.  (above right)

Two weeks ago, the Associated Press accused Fairey of copyright infringement because the poster was based on a photograph taken in April 2006 by Mannie Garcia while on assignment for AP.  (above left)

Last week, Fairey countered by filing a declaratory judgment action in the Southern District of New York, claiming that his use of the original photograph is protected by the Fair Use Doctrine.  According to his Complaint (.PDF here), "Fairey used the Garcia Photograph as a visual reference for a highly transformative purpose; Fairey altered the original with new meaning, new expression, and new messages; and Fairey did not create any of the Obama Works for the sake of commercial gain."   

I think he's right.  Fair Use can be a notoriously slippery concept to apply, but in this case I think the transformative nature of Fairey's posters tips the case in his favor.  Moreover, he used only a portion of the original photograph--only as much as necessary to achieve his expressive purpose--and I think it unlikely that the AP could prove Fairey's posters have had a negative impact on the commercial market for the photograph.

In an added wrinkle, apparently the AP's claims of copyright ownership in the photograph are being questioned by Garcia himself.  This looks more like a PR blunder for the AP than anything else, but at least Garcia's work as a photographer is getting noticed along with Fairey's ubiquitous poster.

Parody without the porn - and without the parody

By Geoffrey Gerber

Hopefully some of you will be going to museums, book stores, and movie theaters this weekend. If you are in Olympia, Washington, you may want to check out the Olympia Comics Festival. I like this year’s poster. It reminded me of the famous scene from Stanley Kubrick’s Dr. Strangelove (winner of the 1965 Hugo Award for Best Dramatic Presentation). You know, the one where Slim Pickens rides the nuclear bomb to earth. It also reminded me of the subtitle for the movie, Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb. In fact, it is just like it.

 

There was a similar image in today’s St. Louis Post-Dispatch, which collected a political cartoon by Cam Cardow from the Ottawa Citizen.

Mike’s explanation of copyright parody raises a question about whether these two cartoons infringe the copyrights in Dr. Strangelove or in the character Major T.J. “King” Kong. Neither is a parody.

Continue Reading...

Fair Use of Presidential Debates: Scorecard Update

By Pete Salsich III

Since Professor Lessig and a large bi-partisan group of others issued their call to the Repubican and Democratic National Committees to require television networks to make the video recordings of all Presidential Debates available to the public for free -- either by placing the videos in the public domain or issuing them under a Creative Commons (Attribution) license (see earlier post here) -- several candidates and two networks have weighed in.

According to Lessig's blog, Democrats Barack Obama, John Edwards and Chris Dodd have all written strong letters to the DNC announcing their support for this proposal.  Apparently there is nothing yet from any of the Republican candidates, and Democrat Hillary Clinton has also remained silent. 

Among the networks, CNN has come out in support of this proposal and has announced that it will place no restrictions on presidential debate footage:

Due to the historical nature of presidential debates and the significance of these forums to the American public, CNN believes strongly that the debates should be accessible to the public. The candidates need to be held accountable for what they say throughout the election process. The presidential debates are an integral part of our system of government, in which the American people have the opportunity to make informed choices about who will serve them. Therefore, CNN debate coverage will be made available without restrictions at the conclusion of each live debate. We believe this is good for the country and good for the electoral process.

By contrast, Lessig and USA Today's OnPolitics blog are reporting that Fox News Channel will not follow CNN's lead and will not make its video footage available for all to use. 

No word  yet from either the RNC or the DNC.  Check with Lessig for regular updates -- he's keeping a good scorecard . . .

Fair Use of Presidential Debates, please.

By Pete Salsich III

Professor Lessig (and a long list of other prominent people) are calling on the Republicans and the Democrats to eliminate unnecessary regulation of political speech, particularly when it comes to Presidential debates.  Lessig talks about the increasing uncertainty surrounding the application of copyright laws -- and the confines of the "fair use" defense -- to internet-based forums such as YouTube, and the potential temptation for some politicians to use copyright law as a club to block critical commentary. 

While some might view this as simply an extension of Lessig's well known views in favor of less restrictive copyright laws in general, I think his key point is right here:

"I am confident that I won’t like much of what this freedom will engender. But if that were a legitimate reason to regulate political speech, this would be a very different world. We should all, regardless of our political persuasion, be encouraging a wide ranging debate about our political future. And we all need to hear more from those with whom we disagree."

I could not agree more, especially in today's world.  Read the whole post and consider adding your voice by contacting the RNC and the DNC directly.