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.

Filed Under: copyright, fair use, obama poster, shepard fairey
Companies: associated press


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  1. identicon
    Darryl, 2 Jun 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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