Why Is The AP Invoking The DMCA Over The Obama Poster?

from the dmca-abuse dept

We've been covering the ongoing legal brouhaha between the Associated Press and Shepard Fairey over whether or not his iconic Obama poster was copyright infringement of an Associated Press photo -- with most of the focus being on whether or not the use was protected by fair use. However, the EFF is noting something quite odd (and quite troubling) in the AP's countersuit against Fairey: it's claiming that his post violates the DMCA. That should leave you scratching your head, considering that the DMCA seems almost entirely unrelated to Fairey making a poster. But the AP seems to be claiming that in removing the little copyright notice beneath its photo, Fairey violated section 1202.

As the EFF notes, since Fairey didn't "strip" the data from the image, but merely appears to have cropped the image for his purposes, it's hard to see how Fairey actually violated the DMCA here. However, more to the point, the EFF explains why this is likely been thrown into the case by the AP. By invoking the DMCA, it adds much greater potential statutory fines, than for a straight copyright infringement case. That gives the AP a much bigger potential award -- which it can use to pressure Fairey into settling. As the EFF points out, such huge potential fines creates a pretty massive chilling effect on others -- something all too common with the DMCA.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Claes, Mar 25th, 2009 @ 5:36am

    "then for a straight copyright infringement case"

    You have a spelling mistake there. (Feel free to remove this comment once you have read it)

     

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  2.  
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    Matt, Mar 25th, 2009 @ 5:40am

    Also, a Reuters photo...

    www.reuters.com

    I'd still like to know whether this claim could throw out the whole thing. I haven't seen whether Fairey has actually admitted he used the AP photo. Reuters almost seems proud that he used their photo.

     

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  3.  
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    John Duncan Yoyo, Mar 25th, 2009 @ 6:08am

    The Fairey poster is the only reason that AP photo has a high value now. It was pedestrian and now it is a star after the red and blue make up. Fairey should give them a single dollar and tell them to cash in on the link to his image.

     

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  4.  
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    ScaredofTheMan, Mar 25th, 2009 @ 6:37am

    Boycott the AP

    I have, you should too.

    If I see a link going to the AP, I simply ignore, maybe find the routers version of it.

     

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  5.  
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    Dan, Mar 25th, 2009 @ 6:39am

    Yet another reason the DMCA was a bad idea. They should repeal the DMCA in favor of a new law that re-codifies fair use and the safe harbor provision (the only good part of the DMCA).

     

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  6.  
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    Weird Harold, Mar 25th, 2009 @ 7:19am

    I would agree Dan, provided that the new law also provided a few other things:

    1) Eliminate safe harbor provisions for any "file host" that adds anything to the image / video / copyright material, including things like advertising on the page. If you are a host, you aren't making web pages, you are just serving a file outside of your control. Put it on a page, or modify it's format for distribution, and you are no longer an innocent host.

    2) Provide stiffer penalties and potential for criminal liability for companies that are repeat copyright offenders. If your business model is based on ripping other people off, you need to be shut down.

    3) Stiff penalties and criminal prosecutions for people who use DMCA style takedown notices on content they do not own or control. Not for borderline stuff judged not to infringe, but rather clear cases of malicious intent.

    4) Solid guidelines for fair use, "hot news" and other terms. This is particularly in reference to things like current news pictures and such.

    Those things alone would solve many of today's problems.

     

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  7.  
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    R. Miles, Mar 25th, 2009 @ 7:28am

    Re:

    Sorry, Harold, but I disagree. All these rules do is help others who can't help themselves.

    Personally, I see nothing wrong with this entire topic. The image isn't being used, but a likeness.

    I don't see how copyright comes into play here. The image almost reminds me of Warhol's work when using images of celebrities.

    I can understand the grievance had the painter taken the image, put some text on it, and call it his. That's blatant infringement as the image itself has not been modified.

    I see "infringement" all the time when someone takes a photo, icon, artwork, or hell, even music, and creates something new with it.

    If you really want to get technical, we're all infringing. After all, all the shapes ever created in art would be classified as infringement.

    For example, if I created a digital picture of a white circle, then anyone else using a white circle is infringing?

    Please. That's just stupid thinking.

    Oh, and one more thing: I believe copyright should not extend to photos taken of people, animals, or man-made structures.

    Those are facts, not creative arts.

     

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  8.  
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    Booger, Mar 25th, 2009 @ 7:58am

    Re:

    1) Eliminate safe harbor provisions for any "file host" that adds anything to the image / video / copyright material, including things like advertising on the page

    What would happen there is that the lobbyists would see that "file host" was removed from the language. Then all your celebrity pages which are using images that you haven't obtained explicit permission to use from the rights owners would subject you to stiff penalties and criminal liabilities according to your 2).

    You can use a celebrity's image to comment on them, that's fair use. However, you can't just grab some magazine's, web site's, or photographer's image of that celebrity and use it for that purpose without acquiring rights or permission. That is not fair use.

     

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  9.  
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    Weird Harold, Mar 25th, 2009 @ 8:04am

    Re: Re:

    R Miles, once again, you are creating examples that have little meaning and missing the boat entirely.

    You couldn't get a copyright on a white circle. However, you could get copyright on the lucent logo: http://en.wikipedia.org/wiki/File:Lucent_Technologies_logo.svg (see Dogberts "brown ring of quality" for how serious they are about this)

    part of the question will be how the work was made. If the artist took a digital copy of the original picture into photoshop and manipulated it from there, it is clear what the basis is. If the artist just used that image on another screen and hand drew a representation of it, there there is clearly no infringement.

    At this point, it appears to be a derivative work. The entire issue could have likely been cleared up if the artist had contacted them up front for written permission, likely would have been given freely or for a very small fee - potentially nothing more than mentioning the original source. It's the mistake made by many, the presumption of rights that don't always exist.

    Anyway, for purposes of the thread, I think that DMCA is probably just something they feel they need to do to cover their legal bases. It sort of sets a timer in place, and gives the offender a chance to either take the image down, or decide to fight based on one of the exemptions presented by DMCA. It's a good legal move, but certainly one not popular here.

     

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  10.  
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    CT, Mar 25th, 2009 @ 8:11am

    Re: Re: Re:

    "If the artist just used that image on another screen and hand drew a representation of it, there there is clearly no infringement."


    This is untrue. Non-literal copying constitutes infringement if it is substantially similar to the original. An example that will make this obvious is if someone simply re-worded a novel... or, more commonly, made a movie adaptation out of a novel.

     

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  11.  
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    Weird Harold, Mar 25th, 2009 @ 8:35am

    Re: Re: Re: Re:

    I am thinking about in application to "art" and photographs. Word novels, videos, and movies all have different issues to deal with.

    I am also sure that a hand drawn image of obama, done in this manner would not be substantially similar. The problem with this work is that there is substantial similarity, and it is easy to see the actual content of the original image under this rendering.

    Again on point, DMCA is just this side of a nuclear option when it comes to copyright, but it is likely the right card to play. It's sort of the "we're not fooling with you" statement.

     

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  12.  
    identicon
    CT, Mar 25th, 2009 @ 8:41am

    Re: Re: Re: Re: Re:

    The doctrine of non-literal infringement applies to graphical art and photography every bit as much as it applies to the textual arts. The assertion that there is no possibility of a finding of infringement if Fairey can prove he simply used the photo as a reference is incorrect.

     

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  13.  
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    SomeGuy, Mar 25th, 2009 @ 9:16am

    Re:

    I very much agree with (3), and depending on what guidlines you're talking about I probably agree with (4).

    I'm not sure how I feel about (2) because (a) it could be too easy to peg someone as a 'repeat offender,' and (b) I doubt that anyone who's just 'ripping other people off' and not adding additional value would survive as a business in the first place. That is, being a successful business to me indicates that you're adding value somewhere, and that should be encouraged.

    As for (1), I'm curious if you have an example of any such site. Are you saying that Flickr can't put ads on their pages, or do you mean that Flickr can't add in-image ads to a picture you're embedding on a non-Flickr site?

     

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  14.  
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    Anonymous Coward, Mar 25th, 2009 @ 9:43am

    I find this whole thing goofy. If you can't use a picture of Obama to create an artistic rendering of him then how could you ever create any kind of art with his likeness at all.

    I don't think he'll ever sit still long enough for me to paint a picture of him and I'll never be close enough to him to take a picture myself. How much different can a portrait of Obama be? He only has 1 likeness.

     

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  15.  
    identicon
    CT, Mar 25th, 2009 @ 9:48am

    Re:

    Anon Coward -- you raise the age old dilemma of copyright... distinguishing the line between an idea and expression.

     

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  16.  
    icon
    ChurchHatesTucker (profile), Mar 25th, 2009 @ 10:35am

    Damned if you do, damned if you don't

    So the contention is that the poster was (a) entirely derivative, and (b) not derivative enough (because he cropped it in a way that didn't include the copyright notice?)

    This kind of crap is why people just ignore the entire regime. It's like Middle Ages theologians debating angels and pins.

     

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  17.  
    identicon
    Middle-aged Theologian, Mar 25th, 2009 @ 10:58am

    I still say the answer is seven.

     

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  18.  
    identicon
    R. Miles, Mar 25th, 2009 @ 10:58am

    Re: Re: Re:

    R Miles, once again, you are creating examples that have little meaning and missing the boat entirely.

    No, WH, you're the one missing the boat, but this is normal for you.

    First, the Lucent logo isn't a copyright, it's a trademark. There's a significant difference between the two.

    Trademark ensures you can't take the Lucent logo, modify it, and use it as your own, especially in the same industry as this can cause consumer confusion.

    However, there is nothing stopping you from using the design for your own logo as a starting point.

    The person who created the new Obama image definitely used the photo as inspiration, but did not copy it.

    This means no infringement was done. Just because they look similar doesn't make them so. There is NO WAY anyone would mistake the art for the AP image despite the similarities.

    The fact I can't get a copyright on the white circle should also mean no one should get a copyright on any individual, bet yet it does.

    Do a Google search on Obama and you'll see what I'm talking about. There are a ton of pictures that look similar, but are different. Especially in the "head turning smile" pose he so often is seen with.

    Does this mean someone else infringed? No, of course not, despite the similarities of the pictures.

    The AP is wrong here. Argue all you want, but they are. I'm betting there's another photo out there which looks very similar to the AP photo, somewhere. Did the artist infringe on that copy too?

    But this would mean the AP infringed as well if the photo exists.

    There's a clear distinction between copying works (hence the COPY in COPYright) and modeling from works.

    Just ask the author of Hari Puttar, who had to fight against infringement allegations based off the "Harry Potter" name. Similar, but clearly different.

    But ignorant people like you obviously can't tell the difference.

     

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  19.  
    identicon
    CT, Mar 25th, 2009 @ 11:15am

    Re: Re: Re: Re:

    "The person who created the new Obama image definitely used the photo as inspiration, but did not copy it.

    This means no infringement was done. Just because they look similar doesn't make them so. There is NO WAY anyone would mistake the art for the AP image despite the similarities."

    This is absolute false.

    As previously mentioned, non-literal copying can most certainly constitute copyright infringement.

    The fact that nobody would confuse the two works has absolutely no bearing on a claim for copyright infringement. Perhaps you are confusing the standard for trademark infringement... which does take into account the likelihood of confusion.

    A derivative work need not actually literally incorporate elements of the original work to be considered an infringement of the original author's right to prepare derivative works. The expansion of this right to derivative works is at the heart of many of the problems with the current copyright regime. However, as the law stands now, Fairey's image is most certainly a copyright infringement.

    The issue that will be disputed is whether Fairey's use constitutes a "fair use." Fair use is an affirmative defense to copyright infringement. There should be no mistaking the fact that the image certainly infringes the original copyright.

     

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  20.  
    identicon
    Weird Harold, Mar 25th, 2009 @ 11:18am

    Re: Re:

    for (1), the idea is that a "host" hosts only the file, doesn't represent it in any other way. So example flickr could not serve web pages with both the image and it's adds together, because that wouldn't be hosting. Really the same with youtube and all those other places that claim "innocent hosting". As soon as the compile, process, or redistribute the content in any other way than specifically by the file name, they are no longer hosting. At that point, they are at least co-publishers, and have a responsibility for the content their distribute and profit from.

    (2) follows 1, really. There are plenty of scammy "image hosts" and "file hosts" that are nothing but repositories for stolen content (music / videos ), pirated software, and copyright images. If a service is liable under (1), and does it repeatedly, there needs to be a way to shut the process down.

    Basically, my point is this: DMCA is broken because it created a massive, overwhelming loophole: Use whatever you want, and the copyright holder / rights owner / original artist must come back and prove you borrowed it / stole it / infringed it - and even then, all you have to do is remove the content and say "sorry!" (and sorry is optional) and nothing can happen. The process is backwards - if you want to use an image, file, whatever, you should be obliged to be able to say positively "I have the rights to it" and be prepared to suffer if you are lying. Entire business models are built on this hole in DMCA, which makes being a rights holder a pain, because you effectively need to hire staff just to spend all day looking for violations to protect your work - and you get no recompense when you do find them. Many services will take down your content on request, and then put it right back up 10 minutes later under another name or on another URL and you have to start the process over again at zero.

    It's stupid, wasteful, and has lead to an online world where everyone thinks there are few if any rights on produced content (movie, photos, software, whatever).

     

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  21.  
    identicon
    CT, Mar 25th, 2009 @ 11:20am

    Re: Re: Re: Re: Re:

    As to your point about the existence of another similar picture -- if you compare the pictures side by side there is almost no doubt that the Fairey's work is based on the AP image that is at the heart of this dispute. I could go into more detail as to why, but I don't really think that this is a point that is much in dispute.

    Furthermore, even if the AP is unable to provide direct evidence of copying, a court can infer copying based on what is referred to as "probative" or "striking" similarities.

     

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  22.  
    identicon
    JSS, Mar 25th, 2009 @ 11:23am

    response from Shepard Fairey on his website

    Everyone

    Shepard Fairey made a comment on the AP matter yesterday on his website. Check it out:

    http://obeygiant.com/headlines/the-ap-obama-referencing

     

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  23.  
    identicon
    R. Miles, Mar 25th, 2009 @ 12:51pm

    Re: Re: Re: Re: Re: Re:

    almost no doubt that the Fairey's work is based on the AP image
    BASED! Even you, while defending the infringement, knows the difference. Why didn't you say copy?

    Oh, because it's not a copy.

    Regardless, Fairey even admitted where the inspiration came from, so it's not as though he's even claiming the original image is his!

    The notion an image of a person is subject to copyright is stupid. While not the letter of the law, there sure is enough wiggle room to invalidate this infringement lawsuit.

     

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  24.  
    identicon
    CT, Mar 25th, 2009 @ 12:59pm

    Re: Re: Re: Re: Re: Re: Re:

    R. Miles -

    It is my opinion that the scope of copyright law has gotten entirely out of hand. However, I am just apprising you of the actual state of the law.

    Copyright infringement does not require literal copying. Authors have the exclusive right to prepare "derivative works" based on their works of authorship.

    The fact that Fairey has admitted that his image is based on the AP photo essentially forecloses any argument that it isn't infringing. The issue that will be litigated is whether or not the infringement is nonetheless permissible under the doctrine of fair use.

     

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  25.  
    identicon
    Anonymous Poster, Mar 25th, 2009 @ 2:26pm

    The DMCA is the single worst piece of legislation ever concocted in the United States of America.

    Massively higher copyright fines just for invoking it in a legal case!
    "Take down first, ask questions in two weeks" protection system!
    Backups of DVDs, CDs, etc. are legal, but if they're copy-protected, then you're breaking the law by making a backup!

    I hope that the DMCA is eventually repealed and replaced with something a little less restrictive and Draconian.

     

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  26.  
    icon
    ConceptJunkie (profile), Mar 25th, 2009 @ 4:21pm

    Re:

    You seem to be mistaken here. The DMCA perfectly serves the constituents of Congress, the media companies. You think individual citizens matter to Congress? They'd just as soon turn us all into dog food or fertilizer except that could possibly affect their re-election prospects.

    Face it, individuals are non-existent in the eyes of those 535 whores who buy and sell us on a daily basis.

     

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  27.  
    identicon
    Jim Walker, Mar 25th, 2009 @ 7:13pm

    What, Where, When

    I just looked at the image in question. You have got to be sh**in me!!! This topic even debatable by anyone? This guy made a patriotic poster from Obama's image and now hes getting sued? Only in America!! Is the AP mad cause they didn't think of it first and now that someone else has done it they want that person to pay them for doing it AND give them the image back so they can continue to make profits on it while the other guy gets screwed? Unbelievable!!!

     

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  28.  
    identicon
    Anonymous Coward, Mar 25th, 2009 @ 9:12pm

    Harold has all the answers. It really is that simple.
    I would not want to live in Harold land, but that's my choice.

     

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  29.  
    identicon
    R. Miles, Mar 26th, 2009 @ 4:22am

    Re: response from Shepard Fairey on his website

    WTF?!?

    Who the hell designs a web page with white text on a solid black background using such small font??

    As an artist, his web page sucks.

    I quit reading after paragraph 2. My eyes just couldn't take the strain.

     

    reply to this | link to this | view in thread ]


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