By The AP's Own Logic, The AP Ripped Off Obama

from the creative-thinking... dept

Law professor Doug Lichtman has a monthly podcast (on an annoyingly flash-only website) called the Intellectual Property Colloquium. A few months back, we discussed the episode that looked at file sharing damages. I must admit that I tend to disagree with a significant percentage of Lichtman’s conclusions on intellectual property, but unlike many copyright maximalists, I tend to believe he’s much more intellectually honest on these issues. His positions don’t seem to come from a “more is absolutely better because it makes me/my clients more money” position, but he honestly tends to believe that greater copyright leads to a greater net outcome, and tends to argue reasonably about it — though, I believe some of that reasoning, and the assumptions that underpin it are faulty.

In the latest podcast, Lichtman and three guests discuss “fair use” with most of the focus being on the Shepard Fairey case. Lichtman talks with one of Fairey’s lawyers (Mark Lemley), a lawyer for the AP (Dale Cendali) and finally the General Counsel of the NY Times, Ken Richieri. It won’t surprise many, I’m sure to say, that I strongly agreed with the points Lemley made, in explaining (a) how Fairey’s use is almost certainly fair use. But the debate between Lemley and Lichtman is still quite worthwhile.

The key point that Lichtman keeps jumping back to is an interesting attempt to justify blocking fair use on what (at first glance) appears to be free market principles. That is, Lichtman states, repeatedly, that because Fairey could have licensed an image of Obama prior to making his artwork, there shouldn’t be fair use. His argument is that this is as free market approach, and that fair use might not even need to be considered. To Lichtman, if there is a “functioning” market that can be made, there’s no fair use. At a first pass, this may sound quite appealing to free marketer/libertarian types. But it’s wrong. That’s because what he’s talking about is not a true free market at all. It’s an artificial market, based entirely on a gov’t backed artificial scarcity. It’s a market built on a monopoly, which is no free market at all.

It also seems to go against the very intent of copyright itself, in that it suggests that as long as there’s a “reasonable” tollbooth that can be placed on things, there shouldn’t be fair use. But if that tollbooth is actually creating friction and decreasing, limiting or hindering creative output, then it can and should be seen not as “promoting the progress,” but the exact opposite. Lemley does a decent job on the spot to warn against the frictions caused by such a “permission” culture, in that it’s quite unreasonable in many cases to have to get permission, but Lichtman dismisses this as a minor issue, or really one that can be worked out separately. To me, that suggests a rather distinctly poor assumption about creativity and creative culture these days. Requiring ad hoc permission on any potential use would create massive chilling effects on all sorts of creativity. Lichtman also suggests that a third party intermediary (perhaps YouTube) could serve as a clearinghouse for such rights, but that too creates all sorts of problems.

Overall though, this highlights the problem I have with those who continue to support strong copyrights under a “free market” perspective. A true free market for a good with infinite supply will price that good at zero. But copyright distorts that market to limit that possibilities. It’s as if some believe that any market represents a free market, even if that market is massively inefficient. Back in the days of the sugar monopolies, there was “a market” for sugar, but it was not a fair market price, because of the gov’t backed monopoly. Or, to make the point clearer, today there is no “market” for air, despite the fact that it’s quite valuable to all of us mammals who like to breathe. We could, in theory, create a gov’t backed market for air, recognizing its value, and forcing people to pay to breathe, but most people inherently recognize how inefficient and wasteful that would be. Yet, content has the same fundamental (effectively) limitless supply as air (if anything, air is more limited). And yet, some think it needs a similar artificial and inefficient market.

As for the rest of the podcast, Cendali’s defense of the AP’s position was an incredible stretch (and, it was disappointing that Lichtman softballed his responses to her, pretending to “channel” what Lemley might say). Her defense was effectively: “The AP relies on licensing to survive. We need to survive. If what Shepard Fairey did was fair use, then it would destroy the AP, thus it can’t be fair use.” That’s wrong on a variety of levels, and Lichtman barely touched on any of them. The purpose of copyright isn’t to protect the business model of a single company. I could create a company that is harmed by fair use of my works, but that doesn’t mean they’re not fair use. Cendali also induced a guffaw from me in response to Lichtman’s question about why the AP didn’t notice the fact that its image was being used. Her response was that since the AP has so many images, it would be impossible to track them all and see if they’re being used. Indeed, but no one was asking that. What Lichtman asked (and failed to follow up on) was why the AP didn’t notice that this image — which was being used everywhere — was based on an AP image. No one expected the AP to track all its images, but you would think with such an iconic image getting so much coverage, that the AP would notice.

Cendali, keeps trying to suggest that the Mannie Garcia photo was something special, but fails to explain (even Lichtman pushes back somewhat, and Cendali answers a different question) what parts of the photo are actually protectable under copyright. She basically just says that because Garcia was a professional photographer, that the work is clearly covered by copyright. That’s not how copyright works, though. She also keeps saying that because Fairey picked this particular photo it proves that the photo had something special. But, if he’d picked a totally different photo, she’d say the same thing. The simple fact is that Fairey could only pick one photo to make this picture, and this is the one he chose:

“He could have selected any one of probably hundreds if not thousands of photographs, But he selected this particular photograph, and he selected it for a reason, as he’s already stated in various interviews. He was looking for a particular photograph that presented Obama in a particular way, in a hopeful way, in a way looking forward to the future… This wasn’t just any random photograph… He was looking for a particular photo… and for him to now minimize that is not fair.”

No, what’s not fair is claiming that any of that is the AP’s to own. None of it. Not a single part of it was. All of that — the hope, the way he was looking, was simply there. What made him choose it was the look on Obama’s face — which is not Garcia’s creative output, and thus cannot be covered by copyright. In fact, the most frustrating thing of all is that Cendali repeatedly claims that Fairey was ripping off Garcia (and the AP), but misses the obvious problem with that argument: which is that if her argument is correct, then the AP and Garcia also ripped off Obama, since it was his creativity in looking the way he did and making the facial expression he did. Once again, such externalities are apparently only acceptable when the AP benefits. But, Cendali seems to ignore that, and Lichtman lets her get off, noting that he basically agrees with her.

The final guest was actually a pleasant surprise. Richieri notes that he’s not a copyright lawyer, but a newspaper lawyer, and thus doesn’t approach things from an “ownership” perspective, but a “fairness” perspective, and notes the importance of fair use in the news business. He doesn’t add too much new to the conversation, but it is refreshing to hear someone who, unlike the AP, seems to recognize that trying to own every last word/phrase/headline doesn’t really make much sense.

Overall, the podcast is worth listening to, but the Cendali section may involve a bit of headbanging for it being so blatantly mistaken on the very basics of copyright law.

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Companies: associated press, ny times

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Comments on “By The AP's Own Logic, The AP Ripped Off Obama”

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66 Comments
Anonymous Coward says:

Once again, another Techdirt article that attempts to muddy the waters around copyright.

God damn it’s easy. Obama at a public event. News reporter takes a picture. That picture is copyright. No, it doesn’t mean they own the rights to Obama’s face, they own the rights to that picture of Obama’s face.

People who attempt to muddy the waters are just trying to cover up for the basic facts of the case: The “art work” used the digital image of the photograph as it’s basis, not by looking at it and duplicating it, but by actually using the digital image.

It’s not difficult, unless you are so anti-copyright that you are attempting to create outrage where none should exist.

scote (profile) says:

Well, from the very start I find Doug Lichtman to be disingenuous. He calls his podcast of edited interviews the “Intellectual Property Colloquium” when it is no such thing. I minor quibble, I know, but I was expecting a round table of all the guests so that they could rebut eachother’s points rather than have Dough Lichtman’s favoritism show through.

“Anonymous Coward

Once again, another Techdirt article that attempts to muddy the waters around copyright.

God damn it’s easy. Obama at a public event. News reporter takes a picture. That picture is copyright. No, it doesn’t mean they own the rights to Obama’s face, they own the rights to that picture of Obama’s face.”

The photographer didn’t light the photo. He didn’t dress the people in it. He didn’t dress the set, make the things in the photo. All he did was point the camera and press the shutter, yet AP claims all the creativity in the photo belongs to the photographer, not to anybody who contributed to the Mise en scène, none of which was created by the photographer.

In a IP maximalist world AP would have had to get trademark/copyright permission from the maker of every object and article of clothing in the photo, and from the lighting company who installed the “lighting design”, and the architect of the building interior, and the paint company who’s trademarked color is on the wall–not to mention talent releases from all persons in the photo. That’s the road AP is trying to drive us down, but doesn’t/realized or admit that it is actually doing.

In the long run, this suit could hurt AP. AP routinely photographs other people’s copyrighted works and sells them. As, IIRC, the amici in the suit have pointed out, AP actually offers for sale photographs of paintings that were part of events covered by AP, long after the newsworthiness of the event has passed–which is a far, far, far less transformative use than the Obama HOPE poster. AP is shooting itself in the foot. It needs fair use.

Anonymous Coward says:

Re: Re:

“In a IP maximalist world AP would have had to get trademark/copyright permission from the maker of every object and article of clothing in the photo, and from the lighting company who installed the “lighting design”, and the architect of the building interior, and the paint company who’s trademarked color is on the wall–not to mention talent releases from all persons in the photo. That’s the road AP is trying to drive us down, but doesn’t/realized or admit that it is actually doing.”

Geez, you should learn something about the law before you go off on a rant.

First off, press, at a public event. Everything at that event is fair game. There is no copyright lighting design, the clothes are irrelevent, the location is cleared by the nature of the public event, etc. AP isn’t trying to drive anything anywhere, it’s just panicked freeloaders who fear their rights to copy someone else’s work will be lost screaming bizarre absolutes and bringing up extreme ideas to try to scare us. You fail.

The HOPE poster would be in the clear if it was a hand drawing of something. It isn’t. It is very clearly the digital image (rights owned by AP) used as the basis for the work. Remove the AP photo, and there is no work.

How hard is it to understand that?

The rest of your post is just a massively bad attempt at scare tactics. nice try, but you are only scaring idiots.

Anonymous Coward says:

Re: Re: Re:

“”In a IP maximalist world AP would have had to get trademark/copyright permission from the maker of every object and article of clothing in the photo, and from the lighting company who installed the “lighting design”, and the architect of the building interior, and the paint company who’s trademarked color is on the wall–not to mention talent releases from all persons in the photo. That’s the road AP is trying to drive us down, but doesn’t/realized or admit that it is actually doing.”

Geez, you should learn something about the law before you go off on a rant.

First off, press, at a public event. Everything at that event is fair game.”

You must have a reading comprehension problem. He wasn’t referencing what the law currently is, he was referencing a hypothetical that he called an “IP maximalist world.” that is, a world where everything is always copyright and nothing is “fair game.”

Armin (user link) says:

the look on Obama’s face — which is not Garcia’s creative output, and thus cannot be covered by copyright.

I’m not entirely convinced by this argument. I’d say capturing that look on Obama’s face has a creative element in it. He had to get into the right position, press the button at the right moment and much more. Otherwise there’s no creative output in nature photography either, after all nature has created the light, the view, the landscape, the wildlife and whatever else is there.

Anonymous Coward says:

Re: Re:

“I’m not entirely convinced by this argument. I’d say capturing that look on Obama’s face has a creative element in it.”

Yeah but Obama smiling and waving and making faces for people to capture also has a creative element to it and so, in as much as the photographer should be compensated for capturing the look, Obama should be compensated for creating the look. This isn’t fair for Obama, he went through all the hard work of smiling and waving and creating faces that the press can capture. His creativity should be rewarded just as well. The AP should owe him half their profits that they made on the copyright.

Anonymous Coward says:

Re: Re:

What is the intent? Fairey had an image in his head, he wanted Obama in such a way he could see his vision through. As far as I know Garcia was snapping photographs in the hopes he could sell one. He was not standing posed with the Camera, dismissing shots, holding his finger, waiting, waiting for the perfect lighting and position. He just snapped and snapped. Now, one MIGHT argue the AP had a goal and image in mind when they went through the pictures looking for one to buy and use, but then, that is after the fact.

I should think that nature is the same way. If you are out snapping photos with friends, or just becouse you see something pretty, or hey look there is a bear! No, it is NOT creative, and should by no stretch of the imagination be covered. Now, if you are a photographer, and you want to show the ruination of nature by man, and you go walking the stream, looking for a place where junk gathers from upstream at the town, and you set up, and you wait becouse you want a poor animal subject, and you hold, and wait until the light is dimming becouse THAT is what you see in your head, and you are not just taking photos to see what sticks, but are waiting for the artistic vision you have to show before you, isn’t that, oh, I dono… DIFFERENT?

Anonymous Coward says:

Re: Re:

I’d say capturing that look on Obama’s face has a creative element in it. He had to get into the right position, press the button at the right moment and much more.

Kind of like making photocopies has a creative element to it. You have to get the source in the right position, press the right buttons in the right sequence, and so forth.

usmcdvldg says:

Re: Re:

He TOOK a digital image and changed the colors, call this fair use is analogous to me taking a digital copy of a TV show, editing the colors and calling it artwork and fair use.

I can understand if you make a legal/logical (not EMOTIONAL/GUT) argument about this being fair use as fair use is ambiguous by nature, and I can understand both sides of the argument. But to say its (legally)cut and dry is just plain ignorant.

Anonymous Coward says:

This is surprisingly similar to patent law.
1)The AP didn’t notice that this was their image/IP until a massive search was conducted to find where this iconic creative piece came from.
2)Upon finding out this was actually a creative derivative(this is the definition of a creative derivative in my opinion, see Disney for further information) of their picture, they jumped out of their socks shouting “OMG, we own that!”.
3)Lawsuit Lawsuit Lawsuit
4)???
5)Profit (sorry couldn’t resist)

Sound like a familiar process?
1)don’t notice that a product comes out from a big name company that could roughly be considered to be infringing on your patent(usually this goes hand-in-hand with not actually producing any products, just holding [overly broad] patents)
2)Someone notices that this big company is potentially making money from a portion of what your patent covers. Head on down to East Texas and shout at the top of your lungs “OMG, we own that!”.
3)Lawsuit Lawsuit Lawsuit
4)???
5)Profit

AP=Patent Troll?

Anonymous Coward says:

Re: Let me see if I get this .....

A slight variation…

Obama’s parents create Obama’s person.
Children are not owned by parents these days, so Obama owns himself.

Obama creates original expression from himself as source.
Obama owns it.

AP uses Obama’s expression as source for photo.
AP owns photo.

Artist uses photo as source for poster.
Artist owns poster.

DJ (profile) says:

Typical....

Some typical tactics of people who are adamant that the only correct path is the one they want, and there is NO OTHER option.

1) “If what Shepard Fairey did was fair use, then it would destroy the AP, thus it can’t be fair use.”

That’s called circular logic. In other words “If it’s true, then I’m wrong. I’m not wrong, therefore it’s not true.” You can’t use a DESIRED outcome as proof of that outcome.

2)”unless you are so anti-copyright that you are attempting to create outrage”

hmmm accusing someone of creating outrage by using inflammatory language. Inflammatory language is ONLY used when someone wants to create outrage. This tactic is nothing more than re-direction: “I don’t want you to pay attention to what I’m doing wrong, so I’m going to call attention to something that you’re doing even worse; even though it’s completely unrelated to the issue at hand.”

Please, people, if you want to have a debate over an issue about which you have strong feelings, do so; but at least come to the debate with logical arguments, and leave the name-calling and finger-pointing at home.

scote (profile) says:

“But I tend to lean toward this

He changed the colors of a digital image.
He did a good job, but that’s basically what he did.
If he had started from scratch and achieved the same result, I would be inclined to agree with you. But he didn’t.”

No, actually, that isn’t what he did. What he did was come up with a dramatic, iconic concept and execute it flawlessly.

What many people don’t realize is that the AP photo in question is **not** a close up of Obama, as AP has now cropped the photo to match the HOPE poster, but rather a wide shot of a conference table.

http://loyalkng.com/wp-content/uploads/2009/01/the-original-hope-photo.jpg

The artist wanted a a reference of Obama’s head only, found a photo, decided on a specific crop, taking only a very small portion of the photo. He then transformed it so thoroughly that neither AP nor the original photographer recognized the image as being related to anything of theirs. The artist created a unique vision, transformed a small portion of an ordinary, throw away wide shot with Obama in it into, arguably, the most recognizable iconic image of this decade. Clearly transformation, clearly fair use.

ChrisB (profile) says:

Re: Re: Re:

“Except I don’t think that is the original shot,just one sort of like it.”

This is exactly why I don’t understand why photos can be copyrighted. Say someone stood near Garcia and took a photo at exactly the same time. The photos would be practically indistinguishable; doesn’t that fact in itself destroy the possibility of copyright (*unique* expression)?

I think that any photo taken in an area where there is the possibility of another person taking the same photo (e.g., public space) _cannot_ qualify for copyright. If you stage something in a studio (e.g., a photo shoot), then photo copyright it makes sense to me.

Doug Lichtman (user link) says:

Thank You / Flash / Copyright Law

Mike –

Thanks for the thoughtful post. A few responses:

1. I really like the Flash interface, but, after receiving some complaints like yours, I worked with my team to create a non-Flash version, too, just in case. You can access that one at http://www.ipcolloquium.com/mobile.

2. My point is a little more complete than the one you rebut in your main post. My point is to say that Lemley can’t have it both ways. If he wants to say that there is nothing special about the photograph, then that means that he really doesn’t need *that* photograph. After all, if it is not special, any of a million other Obama photos would be just as good; so why do we need to trigger fair use rather than just sending Fairey out to go license any of those many available photos? Fairey would on that theory be able to get them dirt cheap; heck, the Obama campaign itself would have given Fairey a dozen options for free, happily. If he wants to instead say that there was something special about that photograph, then his fair use story is harder. If that photo was special, the relevant copyright holder has a strong claim that it should be paid or asked before someone takes that special aspect. Lemley thus cannot simultaneously argue that the photograph is nothing great, and that his client should be protected by the fair use doctrine slam-dunk.

3. The above point is all the more important if we think courts would have a hard time distinguishing cases where the photo is run-of-the-mill from those where the photo is special. If the courts can’t tell, the better option is likely to deny fair use, because that works out either way: if the photo is lame, it works because there are tons of cheap options out there; if the photo is special, it again works because that specialness typically should be protected. Now that’s not to say that fair use should in general be denied or any such thing. It is only to say that, on fact patterns like Lemley’s, fair use looks unattractive for these reasons.

Happy to talk more about this. And thank you for jumping into this debate. Although we disagree often, I’m a big fan of TechDirt and of your work here, and I do appreciate what you wrote — both in tone and substance.

Warm regards,
Doug

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