Posts Tagged ‘fair use’

What a Nightmare: SOPA H.R. 3261

January 18, 2012

As the subject of today’s protests across the internet, SOPA – the Stop Online Piracy Act – is a appalling piece of proposed legislation.  The full text of the proposed Act is here.

SOPA has a savings clause designed, in theory, to prevent its provisions from violating Constitutional rights.

FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.  (SOPA, Section 2 (a) (1) emphasis added).

Yet, provisions of the bill seem to present a clear potential for the prior restraint of speech–in violation of the First Amendment.  For example, this  includes SOPA’s provisions for the use of Search Engines to essentially censor content within 5 days of a court’s order–a restraining order that can be issued prior to a full review, trial, or hearing.

INTERNET SEARCH ENGINES- A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link. (SOPA, Sec. 2 (c)(2)(B) emphasis added).

A search engine company served with the restraining order must remove links to the website within 5 days.  In other words, the search engine is required to exclude the allegedly infringing site from being found in a Google search, e.g.,–essentially hiding the content from the public.

SOPA would enable a  court to issue an restraint order before any trial or hearing has occurred–in other words, before there has been a determination of whether or not the defense of fair-use may apply.  Therefore, if it turns out later that the material was not an unlawful infringement, if it was a parody for example, then the court order would have effectively restrained protected speech without due process.

As a reminder…the First Amendment ensures that: “Congress shall make no law…prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” (Emphasis added).

It may be that the Act is almost self-canceling on the point of Congressional interference with speech rights.  Despite the savings clause, the bill is not narrowly drawn and there does not appear to be sufficient limitations to prevent a potential restraint of protected speech.  If it passes, SOPA seems sure to promote an avalanche of expensive and time consuming litigation.

Just a few more provisions to ponder (with emphasis and some comments added):

(a) Definition– For purposes of this section, a foreign Internet site or portion thereof is a `foreign infringing site’ if–

(1) the Internet site or portion thereof is a U.S.-directed site and is used by users in the United States;

(2) the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under section 2318, 2319, 2319A, 2319B, or 2320, [criminal copyright infringement] or chapter 90 [protection of trade secrets/intellectual property rights], of title 18, United States Code; and

(3)  the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.

(SOPA, Sec. 102, emphasis and bracketed comments added).

 The Attorney General can commence an action under SOPA simply “on notice” to the following:

 (A) to the registrant of the domain name of the Internet site…

 (B) to the owner or operator of the Internet site…

(C) in any other such form as the court may provide, including as may be required by rule 4(f) of the Federal Rules of Civil Procedure…

(Sec. 102 (b)(3)).

Updated/revised 1/18/2012

Fairey Admits Falsehood re Source of “Hope” Image; Lawyers Quit

October 17, 2009

The Associate Press reported this morning that lawyers for artist Shepard Fairey, infamous creator of the Obama Hope poster, are withdrawing from representation over admissions that the artist misled them.

Fairey reportedly admitted that he intentionally misrepresented the actual source photograph for the iconic poster at the heart of AP’s copyright infringement suit against him.  The admission affirmed AP’s position that the source was a close up shot of then candidate Obama, rather than a wider shot that included actor George Clooney as Fairey had stated in his complaint against AP.  On Friday papers were filed in federal court, amending the complaint with Fairey’s new position.  At least some of the lawyers involved reportedly intend to seek court permission to withdraw in the near future.  According to the New York Rules of Professional Conduct, lawyers may with draw from representation under certain circumstances that appear to be similar to those described.  (Rule 1.16)

Fairey had presented some interesting arguments, including that of the limited access to images of famous persons as a reason to necessitate a fair use of such press photos. However, the future of Fairey’s case is now unclear.  While this information doesn’t necessarily kill his argument, the new information seems to implicate the third fair-use statutory factor, relating to the amount and substantiality of the image taken.  17 U.S.C. § 107 (3).  Presenting misleading information in a court document is serious–and certainly Fairey’s credibility has been damaged with the admission.

Related info:

Fairey’s complaint against AP

About fair-use, on

§ 107 statutory fair-use factors, on

UPDATE 10/20/09:  AP files a motion to amend its counterclaim against Fairey.

What is Fair Use?

March 27, 2009

Fair use is a defense to copyright (or trademark) infringement.  A person (a defendant in a lawsuit) that takes up this position is admitting, for the purpose of the defense, that he or she did infringe the owner’s copyright, but that such a use constitutes a fair use of the material.  The reason that the use is or may be fair relates to Constitutional free speech rights.  This, however, does not mean that all such uses are a fair use, nor that the assertion of  fair use will always result in a successful defense to infringement.  Rather, to put forth a fair use defense is to assert the issue of speech rights into the argument.  In a lawsuit, the court then decides if  the act constitutes a fair use or not.  This decision is made by the court, the judge, by balancing certain statutory factors.  No single factor is dispositive (theoretically at least).  Generally, the judge will analyze the facts, apply them to each factor, consider which party is favored for each, and then come to a decision by balancing the overall result of the analysis.

 The statutory fair use factors are: 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

 ~ 17 U.S.C. § 107 Limitations on Exclusive Rights:  Fair Use  (emphasis added).

In turn, these factors are defined by case law that has developed over time.  A few interesting cases to consider for research on the interpretation of the factors are:

Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) 

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) 

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) 

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 

American Geophysical Union v. Texaco, 60 F.3d  913 (2nd Cir. 1994) (amended 1994 & 1995) 

Sony v. Universal City Studios, 464 U.S. 417 (1984) 



Fair Use (U.S. Copyright Office) 

Infringement and Fair Use (

Photography is Not Art

March 25, 2009

 The dispute over the Shepard Fairey Obama “Hope” poster has dredged up a slew of self-appointed art and culture commentators.  This includes a vocal minority  that has expressed viewpoints of the retrograde “photography is not art” variety.  For most people with any substantive knowledge of this topic, it is an issue that died in the 1970s – if not earlier.

 By the 1970s, the common “snapshot”  influenced photographic image making, both aesthetically and technically.  Photo-based artists began to examine and  use the familiar process in a conceptual way, and explored such popular media as the Polaroid SX-70 technology as well as low-tech Kodak Instamatic cameras and such.  Early in that period, there were some arguments about this type of photography, and whether such ordinary style imagery was “art” or something lesser.  However, as many Photo I students are aware, the weakness of the argument evaporated over time; photography is an art media.  Regardless of  technique or media, artistic images contain creativity (originality), intention, and decisiveness.

 There is also an older example of the “photography is not art” argument that was largely dispensed with by Burrow-Giles Lithographic v. Sarony in 1884.  This case recognized that photography was not purely mechanical; the process required the choices and decisions of the image maker, and therefore contained “originality” and qualified as copyrightable subject matter.  In the context of copyright, the originality needed is quite small, and the term also refers to the artist as the “origin” of the image.  Alternatively, in the terminology of visual art, originality sometimes means new, unique, or something having a recognizable style.

 Unfortunately, some of the recent dialogue on this issue stems from a fundamental misunderstanding of art, including photography, both in terms of the media and its conceptual position.  The efforts to redefine photography as not being “art,” is to attempt to categorize it as lacking creativity and having a lesser cultural importance.  The attack on photography as not art also misunderstands or ignores the nature of art/image creation and the significance of the artist or image maker in that process.  It recalls the pre-1884 position of the camera as an automatic image machine, and perhaps suggests another equal dispute over whether digital works can be art.  Paint brush or pencil, camera or computer; these are all tools of the artist.  And sometimes, deliberate non-intention is intentional.  That is the nature of art.

 The heart of the current anti-creativity dialogue seems to be trading on the issues of art for that of copyright.  That is, the attacks on originality are essentially aimed at the art aspect, or creative/value aspects of the photograph.  When a photograph is not art, it is essentially being defined as non-creative.  Something that is non-creative, or totally lacking in originality, would theoretically be ineligible for copyright protection.  This non-creative imaging might, perhaps, include something like a medical x-ray.  By attacking a (regular) photograph as non-creative, the proponents of this perspective are making a results-based argument.  There is a desire that the photograph not be art, and hence, not creative (original), and therefore uncopyrightable. 

 In a statement that revisits the 19th century notion that the photographic process is without  originality and is not  art, Luc Sante, in an interview with the Times has described the type of photographic image taken by Mannie Garcia for the Associated Press as one that may have been created “by a child or robot or chimpanzee.”  That is, one which does not include sufficient intention, creativity, choice, or significant participation to qualify as art.   He associates photographs of this sort with “luck,” AKA, a random occurrence or accident.  (One can only wonder what he thinks about action painting). The denigration of Garcia’s intent, creative decisions, observation and participation is a peculiar position for anyone possessing a credible knowledge of the media.  Despite Sante’s opinion, Garcia’s photograph certainly must contain something original as Shepard Fairey was sufficiently struck by it to select it after sorting through hundreds of images, as he apparently had.

 One voice of  knowledge and expertise quoted in the same Times article belongs to Anne Tucker, a recognized expert and a highly respected curator of photography at the Museum of Fine Arts Houston.   She was apparently interviewed because the museum purchased both the AP/Garcia photograph and a copy of Fairey’s “Hope” poster for its collection.  Ms. Tucker stated that she “strongly disagreed with attributing Mr. Garcia’s success to dumb luck”  and provided a succinct metaphor as well,  “[w]hen Willie Mays was exactly in the outfield where the ball came down, that was not an accident.”  Well stated.

 Mannie Garcia does not refer to himself an artist, according to the Times, however he says that there is a distinction between taking a photograph, which alludes to an automatic or mechanical process, and making a photograph, which infers creativity and intention.  He says, “I could put that [camera] on all programmed settings and automatic — that’s ‘taking a picture.’” However, this also illustrates a distinction between Mr. Garcia’s perspective and that of a person using the photographic medium from an unambiguous art-based position.  An artist, or anyone for that matter, may use the automatic camera settings to create an intentional image–an image that includes originality. The active involvement of a human being with a camera is simply a different level than that of an x-ray technician pushing a button.  For his job, Mr. Garcia is trying to create a specific aesthetic and the use of manual settings is often necessary for that goal.  Also, it should be pointed out that despite Mr. Garcia’s assertions, even if he were to use automatic settings, the image that would result from his intention would still be copyrightable–simply based on his decisions and participation in the process.

 Regardless, the Times’ author takes the position that accident or luck is at the core of photographic image making and that premedition is a critical aspect of art or originality.  To support his position, Noam Cohen states that both Alberto Korda (creator of a famous Che Guevara photograph) and Garcia were “covering something else” at some type of larger public event.  This is a weak argument for discounting the photographer’s involvement in creating an image.  The act of observing the details within a larger scene are well within the traditions of photography and art in general.  Cohen infers that the images of Guevara and Obama resulted by chance and this is an indicator of the lack of creativity (originality) on the part of the image maker.  Chance, it should be noted is not the same as accident or luck, rather it is more like opportunity. One can choose to take it or not.  The image maker decides to push the shutter release at a particular time––something in that person’s consciousness caused him or her to take that action.  Without the action, the image wouldn’t exist; it originates with the person.  Cohen also says “Only later did the photograph capture the public imagination, reworked by artists to reach its ubiquitous status.”  (Emphasis added).  However, this argument dismisses the integrity of the image–the photograph itself–outside of the context of public dissemination.  It also does not account for images that “capture the public imagination” somewhat after the fact.

 These types of arguments have primarily arisen out of the hoopla surrounding the Fairey v. AP lawsuit and sometimes, as in much of the article reviewed here, fail to provide a supportable analysis of both the art and legal issues.  Regardless, there appears to be a multi-fronted attempt  to disparage Garcia’s photograph as unoriginal.  In a similar angle, Lawrence Lessig and his group have solicited information on photographs similar to Garcia’s in an apparent attempt to undermine the originality of the image as well.  The goal is apparently to dispute its eligibility for copyright protection, even though this does not appear to be an issue in the suit itself.  The project seems to be either a misunderstanding of copyright, or a misguided attempt to alter the copyright definition, rather than an effort to expand fair-use.  Regardless, tactics that make a weak point by bashing photographs as not art are not only pathetic, but fundamentally incorrect as well.  A well-reasoned argument for expanded fair use would be much more beneficial.


Read the full Times article here.


More on this Topic:

Shepard Fairey on Fair Use:  the Rachel Maddow Interview 

A Fair Use Battle Intensifies 

Obama Icon Takes on the Copyright Ac



Integrity Lost: Lawrence Lessig helps Shepard Fairey 


Shepard Fairey on Fair Use: The Rachel Maddow Interview

March 14, 2009

The artist who is at the center the Obama “Hope” copyright infringement lawsuit, Shepard Fairey, appeared on the Rachel Maddow show last night. Fairey has admitted to utilizing an AP photograph to create his “Hope” image and filed suit for declaratory judgment as the dispute over the unlicensed use of the photo escalated. The Associated Press responded with a counterclaim for infringement earlier this past week.

Responding to questions about the “flaws” in the Associated Press’ infringement argument, Fairey referred to the factors that are considered by courts in copyright infringement cases when a fair-use defense is involved. Fairey stated that,sf_ap_23 in terms of (copying) a photograph like the AP’s Obama image, the new artwork “transforms both the intent and the aesthetics of an image [and] is actually a valuable new piece independent of the original.” He also stated that his work “does not compete with the original market [of the AP photograph].” Fairey also cited “access” to public figures and the public dialogue (commentary) as fair purposes for infringing news service photographs in creating  artwork.

Fairey said that he is fighting against the infringement charge not just for himself, “but for the rights of all artists who make grass roots images about, for, or against leaders that they don’t have access to having personal portrait sittings with or possibly the financial means to license an image in order to make something that makes a comment and speaks to the public.”

It will be interesting to see how much weight Fairey’s “access” and “financial means” arguments will hold weight, and if they do, whether this will serve to weaken the copyrights of news/public interest related imagery.








Watch the full interview on youtube.