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“Hope” for the Best: Manny Garcia, Shepard Fairey and the Associated Press February 5, 2009

Posted by lborodkin in : Uncategorized , Comments

Update 3/12/09: The Associated Press filed their answer and counterclaims against Shepard Fairey.

You can read the answer and counterclaims here.. It’s a great read. The answer and counterclaims include lots of embedded color pictures (something I’ve never seen in a pleading before).

The AP’s answer and counterclaims emphasize the artistic merit in news photography, the AP’s non-profit status, and the importance of having a financially independent press.

Is it persuasive? You be the judge.

Update 2/9/09: Shepard Fairey has sued the Associated Press in New York for a declaratory judgment that his poster is fair use.  No word on whether Manny Garcia will be joined.

Here’s my post on LAist about the Associated Press’s claims that Shepard Fairey infringed its copyright in AP photgrapher Manny Garcia’s 2006 photograph of President Barack Obama.  No lawsuit has been filed, but the controversy illustrates the huge divergence in what people believe to be “fair use” under copyright, and what they think it should be.  It’s a dynamite case on so many levels, given the timing, the economic climate, the copyright reform movement and the promise of accountability in the new administration.

There’s a terrific collection of links, discussion and summary of copyright standards and precedents courtesy of Carolyn E. Wright, aka PhotoAttorney.

So who’s right?  It’s a great case for setting the law straight on the non-economic rights of copyright holders but a lousy case for damages.  Fairey openly admits he copied the Garcia photo but it is also widely reported that Fairey hasn’t directly profited economically from the poster.  The AP hasn’t tried to enjoin the “Hope” image and it also hasn’t revealed whether the compensation it reportedly seeks is monetary or non-monetary.

I wonder if proponents or strong copyright will figure out that they stand to gain tremendously if the AP takes this once-in-a-lifetime opportunity to set precedent for the non-economic value of copyright.  Shepard Fairy admits he copied the image.  When is that ever going to happen again (or with such a high-profile work)?  The AP doesn’t need Shepard Fairey’s money.  They do, however, need to protect their copyrights.  If the AP’s lawyers take the long view, they will restrict their quest for compensation to joint copyright in the image, forcing a ruling on attribution and derivative works only.

At the very least, I “hope” everyone knows who Manny Garcia is by now.  His photo really is terrific.

IP Protection for Blog Posts August 21, 2008

Posted by lborodkin in : Uncategorized , Comments

Steve Kwok in China recently asked:

What is the most comprehensive law regarding IP protection for blog posts?

The short answer: the blogger retains copyright but the owner of the blog publishing system may reserve the right to sell the content back to the blogger.

Terms of Service increasingly try to carve out property rights for the owners of sites offering free publishing tools on the Internet. Fair enough, given the theory that a Terms of Service agreement is a contract between the user and the hosting site.

To take it a step further, does ownership of copyright in blog posts create property rights vis-a-vis third parties? The plaintiff in Lenz v. Universal Music Publishing Group, the “dancing baby” Youtube case thinks so.

Most of the commentary on the Lenz case focuses on whether posting the video, which embodied portions of the Prince song, “Let’s Go Crazy,” was fair use under the copyright laws. Fair use is always hotly contested, and always will be, due to the number of factors involved.

However, this case also raises the question of whether posting video to Youtube is a privilege or a right. In the first version of the complaint, Lenz claimed it is a right under her contract with Youtube. Presumably the contract arises from a user’s agreement to abide by Terms of Service. Based on that, Lenz sought damages against Universal for interfering with that right.

“Because Universal’s notice was intimidating, Ms. Lenz is now fearful that someone might construe some portion of a new home video to infringe a copyright. As a result, she has not posted a
single video on YouTube since she received the takedown notice.”

It’s a bold claim. How extensive are these rights, and how would they be quantified?

In the Second Amended Complaint, Lenz dropped the tortious interference claim.  However, as user-generated content becomes an increasingly important component of new media business models, it’s worth considering whether others will test similar claims.