Posts Tagged ‘infringement’

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 ArtUntitled.com

§ 107 statutory fair-use factors, on ArtUntitled.com

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

Now, a Copyright Triangle: Photographer Seeks to Intervene in Fairey-AP Lawsuit

July 15, 2009

Mannie Garcia, the AP photographer who created the image of Barack Obama that eventually resulted in Shepard Fairey’s “Hope” poster, is now asserting his ownership of the copyright in court. Garcia filed a Memorandum of Law supporting a Motion to Intervene in the action between AP and Fairey last week.

Typically, when a work is created in a regular employment situation, the copyright of the work produced at the behest of the employer is owned by that employer.  There are some exceptions to this, depending upon the conditions of the employment.  There may be a contract involved where the photographer, whether as a regular employee or as an independent contractor, gives up all rights to the images created. Garcia has said that he did not make such an assignment of his rights to AP.

In last week’s court filing, Garcia appears to assert that the image was not work made for hire because he was neither a regular employee nor an independent contractor (the later presumably based upon the absence of a contract).

The Garcia memorandum does not directly state a position opposed to that of Fairey’s fair-use argument.  It does, however, reference the profits gained by Fairey in exploiting the image.  This represents a bit of contrast by Garcia, who in earlier days appeared to appreciate Fairey’s use of the image he created, reportedly stating that he was happy about the use.  However, even in his statements of February 2009, Garcia asserted that he was the owner of the copyright.

Copies of the image in question have been sold in a limited edition by a New York art gallery, which may present another conflict over the copyrights, depending upon who the owner is ultimately determined to be.  Garcia registered the copyright of the Obama image, as a prerequisite to a lawsuit, with a filing date of March 17, 2009.

More Resources/References:

Boies Schiller in for Shooter as “Hope” Poster Case Takes New Twist (includes a link to Garcia’s court filing) AmLaw Daily.

Related:  [Art]work for Hire (explained in more detail) ArtUntitled.com.

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) 

 

Related:

Fair Use (U.S. Copyright Office) 

Infringement and Fair Use (ArtUntitled.com)