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. icon
    Mike Masnick (profile), 2 Jun 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: 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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