Chipping Away At Fair Use: Judge Suggests AP Would Win Obama Hope Poster Case

from the fair-use-is-dying dept

While we're still not convinced you can trust the Associated Press's reporting on its own lawsuit with Shepard Fairey, the AP is now reporting that the judge in the case has indicated that the AP will almost certainly win, and that Fairey should give in and settle.

If you don't recall, the lawsuit is over Shepard Fairey's iconic Obama Hope poster. For over a year, no one knew what image it was based on, until a photojournalist pieced it together, and even got the photographer who took the original photograph to admit that he hadn't realized the poster was based on his photograph. That photographer, Mannie Garcia, even talked about how cool it was, and didn't seem upset by the issue at all, saying he hoped he might get a "signed litho" from Fairey. We wondered, at the time, if the AP, notoriously aggressive in its draconian interpretation on copyright law might get upset -- and, indeed, weeks later, the AP suddenly demanded money for the use of the photo:
barack-is-hope CLOONEY DARFUR
Of course, what made this ridiculous was that the AP had absolutely no idea that the poster was based on its own photo. It's difficult to think of a better definition of "transformative use" than that. Oh, and did we mention that the AP regularly used the poster as an image in its reporting? Fair use only goes one way according to the AP. Then, of course, to make matters more ridiculous, Mannie Garcia, the original photographer suddenly "forgot" how happy he was with the poster when it first came out and declared that he, too, wanted money.

It seemed like an open and shut case of fair use. The image was clearly transformative -- such that no one recognized where the original image came from for over a year, including both the original photographer and the company that claimed to hold the rights on it, despite both seeing the poster multiple times (and, in the case of the AP, using images of the poster in its own work). The idea that this poster harmed the market for the original image is laughable. The poster was also used for a non-profit political campaign, and Fairey donated any proceeds from the poster to charity. It practically screams fair use. This is what fair use was created to protect.

Ah, but then we found out that Fairey was an idiot. For no reason whatsoever, he went out and destroyed evidence in the case and lied to the court about what image he had used. It boggles the mind as to why he would do this. He had such a strong case, and in lying and destroying evidence he shot a huge hole through his credibility (and opened himself up to criminal liability).

Who knows what impact that actually had on the judge, but the fact that the judge is already claiming that the AP will clearly win this case in the end, suggests it certainly didn't help. And, because of that, we may end up with a ridiculous ruling on the books that an image that is about as fair use as you could possibly dream up is somehow not fair use.

The really amazing thing in all of this is that the AP itself doesn't seem to realize how much it relies on expansive fair use in its reporting. Even though the judge has more or less handicapped the case significantly in the AP's favor, the AP wants a clear ruling that the image is not fair use:
"Our primary objective is to make it clear to the world that The Associated Press is the copyright owner of that photograph and what he did was not fair use under copyright law," [AP lawyer] Dale Cendali said. "The Associated Press truly has been aggrieved here."
Wait, what?!? "Aggrieved"? How? Seriously. How has the AP lost anything here. This photo was a forgotten photo in the AP's vast archives before photojournalist Tom Gralish figured out where the original came from. Since then, however, that AP photo has received a ton of attention, all because of this silly stunt of a lawsuit. The only way in which the AP might actually be "aggrieved" is if it wins this abomination of copyright law, and stamps out one more clear case of fair use. Because it will almost certainly come back to haunt the AP. As a news publisher, it relies on expansive fair use to do its work. Taking that right away from others is an incredibly misguided move. That a judge has already made clear he's siding with the AP is troubling enough. That the AP still wants to push ahead is even worse.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    paperbag (profile), Jun 1st, 2010 @ 10:29am

    fair use faries

    Somewhere, a Fair Use Fairy loses it's wings.

     

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  2.  
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    Anonymous Coward, Jun 1st, 2010 @ 10:32am

    "It seemed like an open and shut case of fair use."

    Not to anyone who understands fair use. In fact, anyone who understands fair use would know that "an open and shut case of fair use" is sort of like a four-leaf clover: rare.

     

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  3.  
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    Anonymous Coward, Jun 1st, 2010 @ 10:44am

    Any drawing that anyone makes of Obama can be considered a infringement since most of the pictures taken of Obama come from the mainstream media and the mainstream media copyrights those pictures. Is this truly what copyright and IP have amounted to? If so, we need to either correct or abolish it. Right now I'm borderline favoring abolishment, I can't quote decide.

     

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  4.  
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    Anonymous Coward, Jun 1st, 2010 @ 10:45am

    Re:

    quite *

     

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  5.  
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    Anonymous Coward, Jun 1st, 2010 @ 10:49am

    Re:

    Abolish it.

     

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  6.  
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    Anonymous Coward, Jun 1st, 2010 @ 11:01am

    What if the AP is trying to use this ruling to claim copyright on any derivative work based on their images, etc.?

    Truly truly sad. Copyright seems to favour those with power and money... Time to abolish it!

     

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  7.  
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    Mike Masnick (profile), Jun 1st, 2010 @ 11:08am

    Re:

    Not to anyone who understands fair use.

    Interesting assertion. When this case first came to light, I spoke to two copyright lawyers who are considered some of the foremost leaders in the field on fair use, and both thought it was a clear fair use case.

    Should I believe them or an anonymous coward?

     

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  8.  
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    C.T., Jun 1st, 2010 @ 11:09am

    Originality....the underlying issue

    The image was clearly transformative -- such that no one recognized where the original image came from for over a year, including both the original photographer and the company that claimed to hold the rights on it, despite both seeing the poster multiple times (and, in the case of the AP, using images of the poster in its own work).

    In my opinion, the facts to which you point have a greater bearing on the issue of originality vis a vis copyrightability than on whether Fairey's use constituted a fair use. The reason that the AP didn't notice that Fairey had used "their" photo is because it is almost indistinguishable for tens of thousands of other photos. I think that the more interesting facet of the case was whether what Fairey used from the AP photo was sufficiently original to be protectable under copyright law. This is an issue that seems to be rising up with some frequency as of late, and it is one that I think courts are absolutely terrified to grapple with. Despite being over 300 years old, there is still quite a bit of gray area as far as the degree of originality required for a photo to be eligible for protection. It is not quite clear whether photographs are per se copyrightable, or whether a photographer must exercise some degree of creativity that is independent of the image that he is shooting. The stakes for this debate are extremely high...so it is somewhat understandable that courts have been reticent to go down this path.

     

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  9.  
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    Mike Masnick (profile), Jun 1st, 2010 @ 11:13am

    Re: Originality....the underlying issue

    In my opinion, the facts to which you point have a greater bearing on the issue of originality vis a vis copyrightability than on whether Fairey's use constituted a fair use. The reason that the AP didn't notice that Fairey had used "their" photo is because it is almost indistinguishable for tens of thousands of other photos. I think that the more interesting facet of the case was whether what Fairey used from the AP photo was sufficiently original to be protectable under copyright law. This is an issue that seems to be rising up with some frequency as of late, and it is one that I think courts are absolutely terrified to grapple with.

    That's a really good point.

    We did a post discussing that, after Peter Friedman tried to figure out what in the original photo could be covered by copyright: http://www.techdirt.com/articles/20090301/1246443934.shtml

     

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  10.  
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    Hulser (profile), Jun 1st, 2010 @ 11:14am

    Unfair

    Even though the judge has more or less handicapped the case significantly in the AP's favor

    Wait, judges are allowed to announce their opinion on who will win the case before the verdict? How is this fair? Wouldn't that break some rule on impartiality or bias?

     

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  11.  
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    Anonymous Coward, Jun 1st, 2010 @ 11:21am

    No mention of the creation and sales of bumper shirts and t-shirts etc...Wonder if anyone would have bought any of those if it was just the original photo?


    Does this mean if they win AP controls and can sell and demand money even from Obama's campaign for the use of this/his photo????

    Imagine all of the money they could make instead of newspapers if they had a crack team of artists transforming their images into art...Oh wait there's that transform word again.

     

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  12.  
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    Anonymous Coward, Jun 1st, 2010 @ 11:36am

    Re: Re:

    Speaking generally, legal academics that "are considered some of the foremost leaders in the field on fair use" often have a broader idea of what is or should be fair use than judges do (whose opinions actually matter).

    I certainly wouldn't be surprised if there were some selection bias at play as well on your part. Were these foremost leaders of the pro-stronger-copyright-protection variety?

    At any rate, I'd be interested in which leaders you're talking about.

    I think the bottom line is, to paraphrase someting I saw on the Stanford Fair Use center website once, fair use is so murky and subjective, you usually won't know if it's fair use until the judge tells you so.

     

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  13.  
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    Anonymous Coward, Jun 1st, 2010 @ 11:39am

    Re: Originality....the underlying issue

    Originality is a *very* low hurdle to pass. Almost all photos are going to be sufficiently original to warrant copyright protection, because the photographer is at least using his/her judgment as to framing and angle, as well as aperture, exposure time, etc.

     

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  14.  
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    Comboman (profile), Jun 1st, 2010 @ 11:49am

    Re: Re:

    I think the AC was making the point that Fair Use is an Affirmative Defense and as such is never automatic.

     

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  15.  
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    C.T., Jun 1st, 2010 @ 11:55am

    Re: Re: Originality....the underlying issue

    I realize that is the standard that has been articulated ever since Burrow Giles . Until somewhat recently, there has been an assumption that just about every photograph meets that requirement. Recent court cases, brought on in some cases as a result of emerging technologies, have forced courts to begin grappling with this issue in more detail.

    The issue, here, is whether the Mannie Garcia's image of Obama features the types of originality that have heretofore been the basis of copyright protection for photographs. He took the image at a press conference where he had no ability to control the lighting or Obama's posing. His image is almost indistinguishable from 1000s of other picutres of Obama. Should the person who took the first picture of Obama be able to stop others from taking similar pictures? Surely the answer is no. Historically copyright law has evaded such outlandish results through the concept of "thin copyrights." A photographer who took a very generic picture would really only be able to stop someone from copying the photo verbatim. This raises very fundamental doctrinal questions about what, precisely, is copyrightable in a generic "snap shot."

     

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  16.  
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    Chuck Norris' Enemy (deceased) (profile), Jun 1st, 2010 @ 12:09pm

    That pose...off limits!

    Obama better avoid turning his head left, tilting his head slightly, looking slightly above the viewer or he could get sued by the AP.

     

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  17.  
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    Anonymous Coward, Jun 1st, 2010 @ 12:19pm

    Re: Re: Re: Originality....the underlying issue

    "His image is almost indistinguishable from 1000s of other picutres of Obama"

    I really don't think that's material to the originality issue. Using the standard set out my many circuits (regardless of media/technology), if the author uses his/her judgment/creativity (basically, at all) in creating the work, there's sufficient originality.

    Maybe if he had the camera on "auto" mode and was told he only had one place he could sit/stand, there's a good question, but even then he's framing the picture using his judgment (assuming a zoom lens).

    "Should the person who took the first picture of Obama be able to stop others from taking similar pictures? Surely the answer is no."

    Certainly, but the originality issue has nothing to do with that. That is an issue of copying. If you take a picture of Obama, but didn't copy the "first picture," then there's no infringement even if it's almost exactly the same.

     

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  18.  
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    C.T., Jun 1st, 2010 @ 12:43pm

    Re: Re: Re: Re: Originality....the underlying issue

    Certainly, but the originality issue has nothing to do with that. That is an issue of copying. If you take a picture of Obama, but didn't copy the "first picture," then there's no infringement even if it's almost exactly the same.

    Originality has a lot to do with it. To prove infringement, a plaintiff must show that the defendant copied a copyrightable element of the plaintiff's work. This is where the concept of de minimus lex curat comes into play. Given that Mannie Garcia's image was likely entitled to only very thin copyright protection, it is conceivable that Fairey didn't actually utilize that which is copyrightable in Garcia's photo. Said another way, it is possible that uses of Garcia's photo that fall short of verbatim copying are not actually infringing.

     

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  19.  
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    The Groove Tiger (profile), Jun 1st, 2010 @ 1:00pm

    Re: Re: Re:

    "Speaking generally, legal academics that "are considered some of the foremost leaders in the field on fair use" often have a broader idea of what is or should be fair use than judges do (whose opinions actually matter)."

    Speaking generally, "anyone who understands fair use" often have a broader idea of what is or should be fair use than legal academics that "are considered some of the foremost leaders in the field on fair use" (whose opinions actually matter).

    See how it works?

     

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  20.  
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    Anonymous Coward, Jun 1st, 2010 @ 1:02pm

    Re: Re: Re: Re: Re: Originality....the underlying issue

    I guess my thought was that "taking similar pictures" will almost never involve actual copying of the protected work, so originality doesn't come into it.

    Your point about whether and to what extent the famous Fairey image incorporates protectable elements is a good one. However, a verbatim copy was likely made en route to that image. Whether or not you can tie damages to that copy is a tougher question.

     

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  21.  
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    Anonymous Coward, Jun 1st, 2010 @ 1:03pm

    Re: Re: Re: Re:

    "See how it works?"

    No. Please explain.

     

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  22.  
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    zbeeblebrox, Jun 1st, 2010 @ 1:16pm

    This is one of those situations where I'm gonna have to disagree completely. Even putting aside that Shepard Fairey is a long-time repeat-offender at being a thieving asshole, he still used an asset to help create his art. It's like stealing paint to create a portrait. Yeah the portrait is clearly original, but damn it you still stole the paint!

    But even if you don't consider the photograph it's based on to be an asset, the fair use argument immediately falls apart once you realize he *made money off it*. How can you claim fair use when you're making a profit? It's that kind abusing the definition?

     

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  23.  
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    Anonymous Coward, Jun 1st, 2010 @ 1:43pm

    Re:

    Well, making a profit isn't an automatic bar to a fair use claim (e.g., the 2 Live Crew Supreme Court case), but it makes the argument a lot harder.

     

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  24.  
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    Anonymous Coward, Jun 1st, 2010 @ 1:49pm

    Re:

    How much profit did he make when he 'donated the profits to charity'?

     

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  25.  
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    Technopolitical (profile), Jun 1st, 2010 @ 2:00pm

    While we're still not convinced you can trust the Associated Press's reporting

    MIKE :"While we're still not convinced you can trust the Associated Press's reporting ....."

    ANS: Techdirt . Copyright. Trust ?
    Sorry.
    ------------------
    It might help your trust factor if you ans. my ans, to your reasons for fighting piracy questions.
    posted here for your pleasure :
    --------------------------
    MIKE :
    "Again, the whole thing is a worthwhile read, but highlights a key point that we keep trying to make over and over again. So many keep focusing in on the whole "piracy!" aspect, and that's such a huge waste of time. Why focus on trying to stop something you don't like, when you can put your energy into creating a positive situation that you do like? Why focus on trying to punish people you don't like, when you have so many opportunities to happily engage with people you do like? "
    ----

    MIKE :"Why focus on trying to stop something you don't
    like,?"

    ANS : MORAL PRINCIPLE... Mike . Pretty simple. Of you do not see that , well,, then Mike ,, you really are lost on this issue of Copyrights.

    ----
    MIKE : " when you can put your energy into creating a positive situation that you do like?"

    ANS: The positive situation that I do like want , and will work for , and fight for ,

    , and yes,, even die for:

    is a world w/o Piracy.
    =================

     

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  26.  
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    Technopolitical (profile), Jun 1st, 2010 @ 2:13pm

    MIKE : "For no reason whatsoever, he went out and destroyed evidence in the case and lied to the court about what image he had used. It boggles the mind as to why he would do this.++ He had such a strong case,++ and in lying and destroying evidence he shot a huge hole through his credibility (and opened himself up to criminal liability). "

    ME : Maybe he destroyed the evidence , BECAUSE as an Artist , he knew, he violated fair use. Ever think of that ?

     

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  27.  
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    Technopolitical (profile), Jun 1st, 2010 @ 2:21pm

    "That photographer, Mannie Garcia, even talked about how cool it was, and didn't seem upset by the issue at all, saying he hoped he might get a "signed litho" from Fairey. We wondered, at the time, if the AP, notoriously aggressive in its draconian interpretation on copyright law might get upset -- and, indeed, weeks later, the AP suddenly demanded money for the use of the photo: "

    ME : this highlights what I have pointed out before , in that Artists rarely go after other good faith-ed ARTISTS on fair use , or copyright. ( Please Paul sue me for my Beatle cover!!)

    BUt the big biz corp. copyright holders , most always will once made aware of possible infringment.

     

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  28.  
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    Mike Masnick (profile), Jun 1st, 2010 @ 2:32pm

    Re:

    How can you claim fair use when you're making a profit? It's that kind abusing the definition?

    Um, because the law says that commercial use can still be fair use.

    Reporting is a commercial endeavor, and yet reporting is a condition of fair use.

    Other legal cases have found that commercial use can still be fair use:

    http://www.techdirt.com/articles/20060519/035207.shtml

     

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  29.  
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    Josef, Jun 1st, 2010 @ 2:36pm

    Techdirt as usual

    This is one of those new business models that the content industry as a whole is working to perfect; sue whomever you can for as much as you can.

    Someday someone in charge of music, newspaper, TV, publishing, etc. will wake up and realize that they no longer control the sole source of distribution. Suing consumers does not endear them.

    Whether this is fair use or not, there are plenty of artists out there that reproduce photos. If I want to draw the President of the US, it's not likely that I could invite him to my home. If I use a still image from TV or a photo, I can be sued. Is this the intent of copyright ? I thought it was to promote progress.

    And why can't I profit from an image that no one else is profitting from? Once the photographer took that pic and got paid for it, did he show it in galleries or attempt to profit in any other way? It just seems like the AP is trying to grab some profits they didn't earn.

     

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  30.  
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    Technopolitical (profile), Jun 1st, 2010 @ 2:42pm

    MIKE : Wait, what?!? "Aggrieved"? How? Seriously. How has the AP lost anything here.

    "In a countersuit, the AP has said the uncredited, uncompensated use of one of the news cooperative's pictures ++violated copyright laws and posed a threat to journalism."++

    http://www.huffingtonpost.com/2010/05/28/judge-urges-settlement-in_n_593861.html

    -------

    ++violated copyright laws and posed a threat to journalism."++

    Me: AP is suing on principle to defend copyright laws and a "posed a threat to journalism".

    Moral Principle.

    -------------------------

     

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  31.  
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    Technopolitical (profile), Jun 1st, 2010 @ 3:00pm

    Re: Techdirt as usual

    "And why can't I profit from an image that no one else is profitting from? Once the photographer took that pic and got paid for it, did he show it in galleries or attempt to profit in any other way? It just seems like the AP is trying to grab some profits they didn't earn."

    -----------

    ans:
    "In a countersuit, the AP has said the uncredited, uncompensated use of one of the news cooperative's pictures violated copyright laws and posed a threat to journalism."

    Me: AP is suing on principle. The lawyers are billing for profit. AP will spend more on legal fees than they could ever hope to recover,

    quote from:
    http://www.huffingtonpost.com/2010/05/28/judge-urges-settlement-in_n_593861.html

     

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  32.  
    identicon
    Anonymous Coward, Jun 1st, 2010 @ 4:50pm

    The AP is not suing on principals they want to build back stories they can point to so they can have munition in the future and because it is a PR stunt for them that will backfire.

     

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  33.  
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    Anonymous Coward, Jun 1st, 2010 @ 4:58pm

    "Wait, what?!? "Aggrieved"? How? Seriously. How has the AP lost anything here. " - this basically explains why you just never get it mike. think slippery slope. they dont object now, they dont object the next time, and the third time they do, and someone goes "well look, you tolerated it before". ap may not specifically lose anything in this case, except for a certain level of control over their entire portfolio. you miss this sort of thing every time. it makes it much easier to understand why you misunderstand the applications of copyright law.

     

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  34.  
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    Technopolitical (profile), Jun 1st, 2010 @ 6:11pm

    Re: ap may not specifically lose anything in this case, except for a certain level of control over their entire portfolio. you miss this sort of thing every time. it makes it much easier to understand why you misunderstand the applications of copyright la

    thank you. well put.

     

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  35.  
    identicon
    Anonymous Coward, Jun 1st, 2010 @ 6:14pm

    Re:

    >they dont object now, they dont object the next time, and the third time they do, and someone goes "well look, you tolerated it before".

    >Because it will almost certainly come back to haunt the AP. As a news publisher, it relies on expansive fair use to do its work.

    Too late. They've already tolerated it before.

     

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  36.  
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    Technopolitical (profile), Jun 1st, 2010 @ 6:36pm

    Re: Re:Too late. They've already tolerated it before.

    "Too late. They've already tolerated it before."

    Details please. How ? When ? Why ?

     

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  37.  
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    Mike Masnick (profile), Jun 1st, 2010 @ 6:59pm

    Re: Re:

    Too late. They've already tolerated it before.


    Not just "tolerated" it, but actively used it themselves time and time again -- including in using photographs of Fairey's own poster.

     

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  38.  
    identicon
    Anonymous Coward, Jun 1st, 2010 @ 7:00pm

    What control exactly?

    The supposedly ridiculous claims copyright owners make about control or the de facto control they have that is ZERO.

    Besides this is where copyright gets ridiculous fast. Why copyright owners have rights over derivative works when they don't create it, they don't contribute to it, they don't promote it. Basically they are parasites on those instances.

     

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  39.  
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    Technopolitical (profile), Jun 1st, 2010 @ 7:02pm

    Re: Re: Re:Not just "tolerated" it, but actively used it themselves time and time again -- including in using photographs of Fairey's own poster.

    "Too late. They've already tolerated it before."

    Details please. How ? When ? Why ?

     

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  40.  
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    Technopolitical (profile), Jun 1st, 2010 @ 7:04pm

    Re: Re: Re: Re:Not just "tolerated" it, but actively used it themselves time and time again -- including in using photographs of Fairey's own poster.

    You like to cite interviews with lawyers you have had, Mike.

    Interview the AP lawyer in this case.

    I am sure he would be glad to.

     

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  41.  
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    Technopolitical (profile), Jun 1st, 2010 @ 7:07pm

    Re: Basically they are parasites on those instances.

    they are just following the law. And this time on moral principle,, not about $$

     

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  42.  
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    Technopolitical (profile), Jun 1st, 2010 @ 7:16pm

    AP, notoriously aggressive in its draconian interpretation on copyright law might get upset -- and, indeed, weeks later, the AP suddenly demanded money for the use of the photo:

    MIKE :AP, notoriously aggressive in its draconian interpretation on copyright law might get upset -- and, indeed, weeks later, the AP suddenly ++++demanded money+++ for the use of the photo"

    ME : you have to sue for $$ .

    we do not flog people in the USA. [ too bad :) ]

    They are suing on principle.
    ----
    It is always $$$ with you Mike .

    Get beyond it.

    go out and look at the stars.

    and count them.

     

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  43.  
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    Modplan (profile), Jun 1st, 2010 @ 7:17pm

    Re: Re: Basically they are parasites on those instances.

    Moral Principle of control over an image of a public figure who's image was changed enough to qualify for transformation work under copyright law?

    Seriously, there is no moral principle here. It's an issue of AP clawing privileges it doesn't deserve over an image no one cared about until someone drastically changed it. AP is using this because it's seen a lucrative licensing opportunity and ways to scam money out of art down the road.

     

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  44.  
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    Modplan (profile), Jun 1st, 2010 @ 7:18pm

    Re: Re: Re: Basically they are parasites on those instances.

    Transformative*

     

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  45.  
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    Anonymous Coward, Jun 1st, 2010 @ 7:28pm

    Re: Re: Re: Re:Not just "tolerated" it, but actively used it themselves time and time again -- including in using photographs of Fairey's own poster.

    Every single time AP even mentions this debacle they have to show an example of Fairey's poster.

    Do those lessons you took not require reading comprehension and perception of the obvious?

     

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  46.  
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    Technopolitical (profile), Jun 1st, 2010 @ 8:10pm

    Every single time AP even mentions this debacle they have to show an example of Fairey's poster.

    So ?

    I (nor AP probably ) is not saying it is not a great work of art.

    Just that it legally infringed.

    Remember the court has not ruled yet.

    Personally I hope there is no settlement , and it goes all the way to the Supreme Court.

    Please you anti -copy right folks ,,

    Start a legal defense fund for the alleged infringer.

    Mike & techdirt is a great place to start one.

    see ya in court.

    (I bring my uke.)

     

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  47.  
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    Anonymous Coward, Jun 1st, 2010 @ 8:55pm

    I hope it goes to, if transformed is now the new derivative I see more folks getting annoyed.

    But what I hope to see is the industry getting this to bite them in the future, everything is derived from something there will be no more sound nights of sleep for some people.

     

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  48.  
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    Anonymous Coward, Jun 1st, 2010 @ 9:01pm

    Re: Every single time AP even mentions this debacle they have to show an example of Fairey's poster.

    Are you NAMELESS.ONE's brother?

     

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

  49.  
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    Technopolitical (profile), Jun 2nd, 2010 @ 2:54am

    Re: everything is derived from something??

    "everything is derived from something?"

    ans: Really ? In the Art & music world , that is not true.
    that why they are called Original Works.

     

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  50.  
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    PaulT (profile), Jun 2nd, 2010 @ 3:15am

    Re: Re: Re:

    "to paraphrase someting I saw on the Stanford Fair Use center website once"

    So, again, should Mike believe two experts in the field who he trusts, or a random person on the internet who paraphrases random websites and can't be bothered to identify himself? Not a tough choice.

     

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  51.  
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    PaulT (profile), Jun 2nd, 2010 @ 3:32am

    Re: Re: everything is derived from something??

    "In the Art & music world , that is not true."

    No, it's entirely true. Every piece of music is derivative of pre-determined instrument sounds and a series of notes, most sequences of which have been used in some way before. Every single artist and musician learns from those who came before him. there *are* original works with no obvious peers, but there's a hundred thousand derivative works for each one of those.

    That's not to disparage the works of artists and musicians, but they're all derivative in some ways, and always have been - from Michaelangelo and Shakespeare to J.K. Rowling and Jay-Z.

     

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  52.  
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    Mike Masnick (profile), Jun 2nd, 2010 @ 4:08am

    Re: Re: Re:

    Speaking generally, legal academics that "are considered some of the foremost leaders in the field on fair use" often have a broader idea of what is or should be fair use than judges do (whose opinions actually matter).


    Neither person I refer to is an academic. One is a copyright litigator and the other had worked in a variety of copyright related jobs, including academia, but hasn't been in an academic setting in years.

    I certainly wouldn't be surprised if there were some selection bias at play as well on your part. Were these foremost leaders of the pro-stronger-copyright-protection variety?

    Honestly, I have no idea. I know both for their focus on fair use, not their feelings towards overall copyright law.

    At any rate, I'd be interested in which leaders you're talking about.


    I don't have permission to reveal their names, and, besides, why would I reveal them to an anonymous commenter who won't identify himself?

     

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  53.  
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    Darryl, Jun 2nd, 2010 @ 8:47am

    It's not fair use, according to the legal definition of "Fair use"

    so what is you're legal defense that this is "fair use" at all?

    "fair use" is a specific and well defined legal term, it does not mean what 'normal' people think, that if "it sounds fair" it a defense for Fair Use.

    This is not the case, and anyone who cliams knowledge of copyright or IP rights laws would know.

    The BALANCING TEST:
    For something to be considered "fair use" it must meet at least ONE of the specific requirements of the "balancing test".

    1. The Purpose and Character of the use, including whether such use is of a commercial nature or is from non-profit equcational purposes;

    Nopte, this does not satisy the first balancing test rule.
    It is used for a commercial purpose, and not "non-profit educational".

    2. The nature of the copyrighted work;
    (ability to diminish the profits, or supersede the objective of the original work).

    Well, this fails that test as well, it's used to supersede the original work.

    3. The amount and substantiality of the portion used in relation to the copyhright work as a whole; and

    Fail, again, basically apart from shading and colors, the original image is used in it's entirety, and it's trivial to recognise they are the same. And one is a "worked copy of the original'.

    4. The EFFECT if the use upon the potential market for or value of the copyrighted work.

    The use was intended, to promote his poster of Obama over the original picture, so he was trying to take advantage of the 'potential market' for or valueof the copyrighted work.
    The fact that the original photographer does not mind does not mean anything, he's a paid photographer, and as such his works are abviously ownded by AP, and not himself.

    AP has every right to exercise their copyright on this, and this poster, fails to meet any of the criteria to be classified as "fair use". Thats why the judge says it's a sure thing, because by his limitions of the interpretation of the law he would not be able to make any other judgement.

     

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  54.  
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    Mike Masnick (profile), Jun 2nd, 2010 @ 2:03pm

    Re: It's not fair use, according to the legal definition of "Fair use"

    1. The Purpose and Character of the use, including whether such use is of a commercial nature or is from non-profit equcational purposes;

    Nopte, this does not satisy the first balancing test rule.
    It is used for a commercial purpose, and not "non-profit educational".


    *Bzzp* Wrong. This was non-commercial use. It succeeds on the first prong.

    2. The nature of the copyrighted work;
    (ability to diminish the profits, or supersede the objective of the original work).

    Well, this fails that test as well, it's used to supersede the original work.


    *Bzzp* Wrong. This did not diminish the profits of the original. And you don't understand what they mean by "supersede" here. They're talking about taking away the market for this. This did the opposite.

    So, that's 2 of 4 in favor of fair use.

    3. The amount and substantiality of the portion used in relation to the copyhright work as a whole; and

    Fail, again, basically apart from shading and colors, the original image is used in it's entirety, and it's trivial to recognise they are the same. And one is a "worked copy of the original'.


    *Bzzp* Wrong. As discussed earlier by CT in this thread, the amount used DID NOT include anything copyrightable. So we are only concerned about the amount of copyrightable stuff that's used, and that's minimal.

    Okay. 3 of 4 in favor of fair use.

    4. The EFFECT if the use upon the potential market for or value of the copyrighted work.

    The use was intended, to promote his poster of Obama over the original picture, so he was trying to take advantage of the 'potential market' for or valueof the copyrighted work.


    Sorry, you don't understand what this prong means in the fair use test. Let's go back and look at the impact on the market for the original work. The question here is whether or not it diminished the commercial value of the original work. It emphatically did not. If anything, it increased it.

    So, that's 4 of 4 in favor of fair use, despite your misunderstanding of the 4 factor test.

     

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  55.  
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    Darryl, Jun 2nd, 2010 @ 7:08pm

    If you were right

    Then the law would agree with you, but it's funny that they dont, no matter what you say, creating a poster for promotion (self or for someone else) and profit is not "fair use" and it's certainly not "non-profit educational".

    I know it, the judge knows it, and only person who seems to disagree with the wording of the law is you !.

    So the law says, and I say, and the judge agrees (hes the one who counts) that you are wrong, and that this is a clear case of copyright breach.

    And until the law is changed, it will always remain the case, this fails the balancing test, and the judge will rule that way.

    case closed :)

     

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  56.  
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    Mike Masnick (profile), Jun 2nd, 2010 @ 10:11pm

    Re: If you were right

    Then the law would agree with you, but it's funny that they dont, no matter what you say, creating a poster for promotion (self or for someone else) and profit is not "fair use" and it's certainly not "non-profit educational".

    Actually, that's simply not true. There are plenty of cases where creating something for profit has been declared fair use. You can't just pretend that's not the case.

    I know it, the judge knows it, and only person who seems to disagree with the wording of the law is you !.


    Um, the judge didn't even rule on the fair use question here, and TONS of copyright experts seem to agree that this is fair use. Here's an example:

    http://blogs.geniocity.com/friedman/2010/06/it-aint-over-til-its-over-fairey-judge-says- obama-hope-poster-is-not-fair-use-but-dont-necessarily-believe-him/

    And until the law is changed, it will always remain the case, this fails the balancing test, and the judge will rule that way.

    Again, the judge has not yet even looked at the four factors, and I already explained why it's difficult to see how this case fails on ANY of the four factors.

     

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  57.  
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    Darryl, Jun 3rd, 2010 @ 1:02am

    actually why am I wrong ?

    "Actually, that's simply not true. There are plenty of cases where creating something for profit has been declared fair use. You can't just pretend that's not the case."

    All you are doing there is saying "im right, you're wrong", so what supporting evidance, or trial rulings to support, you're "no it's not" statement.

    And a poster for "promotion" is for profit, it's profit for the person who copied it, and makes money by selling it, or promotes himself through his modification of someone elses work.

    He's using the image in full, it's not for critque, or educational purposes, and it does not full under the 'non-profit'.

    So on what grounds am I wrong ? if this case was put to this test for fair use, then it would fail.

    And it was you who used the term "fair use", even in the heading of the article. So stand by you're claims would be good.

    You were the one who suggested it was an issue for "fair use" and im simply pointing out that if it were to be put under the "fair use" rule it would fail.

    And you have not shown anything to say it would not fail except for you saying "actually, you're wrong".

    Thats not good enough, and if you're going to interpret the law, it's best to be accurate, and base what you say on the actual laws, not what you would like them to be..

     

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  58.  
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    Mike Masnick (profile), Jun 3rd, 2010 @ 1:22am

    Re: actually why am I wrong ?

    All you are doing there is saying "im right, you're wrong", so what supporting evidance, or trial rulings to support, you're "no it's not" statement.

    *sigh* I had assumed that as someone who purports to actually know about copyright law, you would be familiar with the *vast* library of decisions and case law showing that commercial use can and often still is fair use. But, if you must, here are two cases:

    http://www.techdirt.com/articles/20060519/035207.shtml
    http://www.techdirt.com/articles/2 0090810/1913245833.shtml

    Furthermore, the fact that pretty much every news reporter (most of which are commercial entities) are given fair use rights suggests commercial fair use happens *all the time*.

    And a poster for "promotion" is for profit, it's profit for the person who copied it, and makes money by selling it, or promotes himself through his modification of someone elses work.

    Yikes. No. You are wrong. Not just slightly wrong, but entirely wrong. The poster was not for profit. All proceeds were donated to charity. And "promoting yourself" does not negate fair use by any amount. If that were the case, there would be no such thing as fair use.

    I'm sorry Darryl, but you have convinced me you don't know anything about fair use.

    He's using the image in full, it's not for critque, or educational purposes, and it does not full under the 'non-profit'.

    No, he's not using the image. He made a transformative work -- which is quite different. It is for non-profit purposes. It did not harm the market for the original image. It's fair use. Clearly.

    So on what grounds am I wrong ? if this case was put to this test for fair use, then it would fail.

    I like how you ignore the expert in fair use who said exactly the opposite. And you claim I don't support my arguments?


    Thats not good enough, and if you're going to interpret the law, it's best to be accurate, and base what you say on the actual laws, not what you would like them to be..


    Um. I am the one who based my position on the law, cited cases, gave examples, showed the four factor test and how it weighed in favor of fair use.

    All you have done is pretend the 4 factors say stuff that no court has *EVER* said.

    I'm sorry, Darryl, but you don't seem to know anything about copyright law when it comes to fair use.

     

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  59.  
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    The Groove Tiger (profile), Jun 4th, 2010 @ 1:31am

    Re: Re: Re: Re: Re:

    What's good for the goose, is good for the gander, and all the king's horses and all the king's men couldn't put Humpty together again.

     

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

  60.  
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    PaulT (profile), Jun 4th, 2010 @ 4:54am

    Re: Re: actually why am I wrong ?

    Heh, Darryl seems to have been awfully quiet in the last 4 hours. I wonder what happened :P

     

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

  61.  
    identicon
    Anonymous Coward, Jun 5th, 2010 @ 7:46am

    Re: Re: Re:

    "I think the bottom line is, to paraphrase someting I saw on the Stanford Fair Use center website once, fair use is so murky and subjective, you usually won't know if it's fair use until the judge tells you so."

    Question:
    did you get prior permission to use that quote from Stanford?

     

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


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