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.

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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Fantasy Baseball 2, Real Baseball Zero

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The Eighth Circuit handed down its much awaited fantasy baseball decision in CBC Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., the appeal of the district court's summary judgment in favor of CBC.  CBC had brought a declaratory judgment case in St. Louis to establish its right to use -- without license or compensation -- the names and statistical information of real major league baseball players in its fantasy baseball products.  The players had counterclaimed, maintaining that CBC's fantasy baseball products violated their rights of publicity.

Although the Eighth Circuit concluded that use by CBC of the names and statistics of the players in its commercial fantasy baseball operations satisfied all three elements of the Missouri tort -- namely, (1) use of the player's name as a symbol of his identify, (2) without his consent, and (3) with the intent to obtain a commercial advantage -- it held that this use was nevertheless a "fair use" under the First Amendment.

But of more interest to me -- and to those concerned that right-of-publicity has become the tort of choice for celebrities seeking to avoid the First Amendment barriers to libel and privacy claims -- is the Eighth Circuit's treatment of the controversial  First Amendment test created by the Missouri Supreme Court in the Tony Twist case, which is also the same case that articulated the three elements of the tort claim set forth in the preceding paragraph.

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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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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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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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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.

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What is your porn star name?

By Geoffrey Gerber

Apparently you take the name of your first pet and add the name of the street on which you were raised. Sorry I couldn't find a safe link to cite for authority, but there is an R-rated monologue on point in YouTube.  -- Warning! If you do not employ this somewhat random name generation technique, you might be inviting a lawsuit.

No there isn't one yet, but the New York Post's Page Six reported that Katie Holmes, former Dawson's Creek ingenue, is considering available recourse (presumably legal) to pursue against Katee Holmes. Apparently Ms. Holmes ("ee" not "ie"), a self-proclaimed virgin, announced her intention to launch a career as a porn star by filming her first sexual encounter. I will  not provide the link to her website (with its countdown clock), but the Defamer blogs about it.

Normally the career choices and self-promotional efforts of eighteen-year-old fashion students do not merit much serious consideration for litigation. The difference in this case: the New York Post reports that the young woman in question "changed her name" to Katee Holmes to launch her direct-to-video career. Such a calculated move invites a right of publicity lawsuit, the crux of which is invoking a celebrity's identity to obtain a commercial advantage.

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The Year of the Blond Bombshells - or - Time to Scour the Obituaries.

By Geoffrey Gerber

SUX 2B CMG — CMG Worldwide that is. On May 7, CMG took a sizable summary judgment hit. CMG and Marilyn Monroe, LLC, the companies previously claiming all of the rights to control/profit from the most famous nativity songbird of all time, lost their right of publicity claim against the Shaw Family Archives, Ltd. (and others). CMG took issue with the licensing of Marilyn photographs taken by Sam Shaw without also paying CMG its licensing fee for Marilyn's identity. Photographs taken by Sam Shaw can be seen at these websites. CMG took issue with Marilyn's image on a T-shirt and label (as shown in the Court record), and on a licensing website.

This is a very big deal. The Art Law Blog has had three posts on this decision.

So far, the journalists are outperforming the law bloggers on the analysis. To its credit, the Law Blog at the Wall Street Journal linked to the pre-decision Wall Street Journal story about the case, which has great background on the post-mortem commercialization of Marilyn's identity. The Art Law Blog had a link to CMG’s own Indianapolis Business Journal, which had a more thorough discussion of the possible ways this decision could play out.

Normally one of the better legal voices on intellectual property issues, The Center for Internet and Society misses the point in this case. The folks at Stanford read the case to hold “that Marilyn Monroe’s heirs cannot claim post-mortem publicity rights because she died before the enactment of the statute that creates them in California (and, for reasons that are not important here, Indiana). So, according to this Court, her image, likeness and persona are all in the public domain.” That is not the holding.

The Trade Regulation Talk stated that “any publicity rights that Monroe enjoyed during her lifetime were extinguished at her death by operation of law.” This too, is not quite accurate.

This very important decision held that the post-mortem right of publicity could not be bequeathed by testamentary conveyance because the right did not exist at the time of Marilyn’s death. Accordingly, Marilyn Monroe, LLC — and by connection its agent CMG — did not acquire any post-mortem right of publicity because all of its rights arose from Marilyn’s will. The decision — extremely well-reasoned — does not hold Indiana’s attempt to create a retroactive post-mortem right invalid. It leaves that for another decision and leaves open the possibility that such a statutorily created right might vest in the dead celebrity’s statutory heirs.

The power of this decision and its future impact are not in suddenly delegating the post-mortem right of publicity to the public domain waste basket. Its power is in its sensible approach to a post-mortem right. Undoubtedly the decision will be appealed, either through a certified interlocutory appeal, or when the there is a final judgment; but, its careful position seems solid. According to the Indianapolis Business Journal, CMG manages a bundle of rights that “include branding rights, trademarks on Marilyn Monroe’s name and signature, and copyrights of certain photographs.” I suspect these trademarks and branding rights may be subject to attack if the putative owner has no corresponding right to Marilyn’s identity.

The real issue is how to fairly treat concurrent right of publicity and copyright rights in works, just as in the June Toney case last year (discussed in the Photoshop Blog and the Patry Copyright Blog). Surely it cannot be fair to require a photographer to negotiate a model contract for a post-mortem right of publicity that does not exist. Nor could it possibly be fair to make a photographer's heirs negotiate with a model's heirs over their respective inherited rights when the model and photographer could not have contemplated the issue.