Shepard Fairey: Obama's Graffiti Artist Arrested

Shepard Fairey was arrested walking into an art exhibition on February 7, story here. Good discussion of the declaratory judgment action Fairey filed against the Associated Press to declare his Obama poster non-infringing and fair use on Donn Zaretsky's Art Law Blog here. Complaint filed by San Francisco lawyers in the Southern District of New York on February 8 here. NY Times coverage here. Apparently the freelance photographer who took the photo for AP claims the copyright and is thrilled that Fairey used the work the way he did.
The complaint does not allege that Mr. Fairey has claimed or registered copyright in his poster. The complaint also alleges that it was filed in response to threats by AP that it would file suit against Fairey on February 10.
The complaint also fails to mention Fairey's strongest potential defense: the poster is core political speech made during the course of a political campaign protected by the First Amendment. There is a lot of good case law about political speech, and the fact that the image was used and sold to promote a political viewpoint during a political campaign gives it a great level of deference. According to the complaint, Fairey sold 4,000 posters for $45 and used all of the proceeds to distribute nearly 300,000 posters for free. The U.S. Supreme Court has a pretty good record of upholding free speech in the political arena, and Fairey did pick a winning candidate.
If a plaintiff has not requested registration of a copyright and either received a registration or been refused by the Register of Copyrights, a federal court lacks subject matter jurisdiction over the subject matter of the photograph or the poster.

Free CLE - IP Colloquium on Fair Use and Shepard Fairey v. Associated Press

Prof. Doug Lichtman has put together another excellent program at the IP Colloquium. This program interviews players in the case Shepard Fairey v. Associated Press (attorney Mark Lemley for Shepard Fairey and attorney Dale Cendali for the Associated Press). Ken Richieri, GC of the New York Times comes in with an interesting take on the controversy. I wrote about the case here.

The case is pending in the Southern District of New York before Judge Alvin Hellerstein. The latest news from the docket sheet (as of August 14, 2009) is that photographer Mannie Garcia is claiming ownership of the photograph, and both Fairey and Associated Press are counterclaiming against Garcia.

The image you see here is of Paul Newell, a candidate endorsed by the New York Times in his race against Speaker of the Assembly Sheldon Silver that took place on New York's Lower East Side.

Newell, deemed "the quintessential anti-establishment democrat" by the Times garnered a respectable 24% of the vote where the incumbent spent over $800,000 to keep his seat.

I think that the IP Colloquium perhaps underplayed the whole political aspect of the expression involved and the role that core political speech plays in our jurisprudence, at least for Fairey's activities up until the election. But the arguments are interesting and for those interested in copyright issues, political speech and artistic freedom, the case opens up a very tasty can of worms.

IP Colloquium has programs that you can listen to or download for free. Attorneys can receive free CLE credits by completing an online form after listening to the program.

Commissioned Shepard Fairey mural painted over in Kentucky - Boing Boing

Commissioned Shepard Fairey mural painted over in Kentucky - Boing Boing

Copyright and Fine Art: Federal Bar Association Conference in Hawaii This Friday December 11

This Friday I will be speaking at the Federal Bar Association's First Annual Hawaii Conference and discussing inter alia the Shepard Fairey case involving the Obama/Hope poster.   For more information, check out:

http://www.fedbar.org/hawaii.html

December 11, 2009


First Annual FBA Hawaii Conference

Location: The Royal Hawaiian Hotel

Speakers: Lawrence Baca, FBA President; Hon. William A. Fletcher, Ninth Circuit; Hon. Gerald Bard Tjoflat, Eleventh Circuit; Prof. Kathleen Sullivan, Stanford Law; Prof. Linda Krieger, Richardson School of Law; Robert Kohn, FBA Federal Litigation Section; Raymond Dowd, FBA Southern District of New York Chapter; Simeon Baum, FBA Alternative Dispute Resolution Section; Claudia Bernard, Chief Ninth Circuit Mediator

CLE: 6.5 CLE hours on federal appellate, trial, and ADR topics. Program includes continental breakfast, lunch, and evening reception.

Registration: View schedule at a glance or complete conference program. Register online or download printable form. For more information, contact Melissa Stevenson at mstevenson@fedbar.org or (571) 481-9100.



Hotel Accomodations

Conference Hotel: The Royal Hawaiian, A Luxury Collection Resort. Conference room rate: $250 per night, garden view, plus applicable taxes, guaranteed through November 11, 2009, thereafter on space available basis (special rate upgrades also available). Reservations call: (800)-782-9488 or (808) 921-4621. Alternative: Hilton Hawaiian Village, Beach Resort & Spa. Walking distance to conference hotel. Special room block rate of $161 per night, plus applicable taxes, guaranteed through November 11, 2009, thereafter on space available basis. Reservations call: 808-949-4321, use Group No. 610, Group Confirmation No. 1000537328.

CDCA: Politico's Use of Henley Songs Copyright Infringement - Not Fair Use

In Henley v. Devore (SACV 09-481) the Central District of California doled out a "sort of rough justice" and found that a politician whose campaign got a little crazy with a karaoke machine and a mashup campaign video engaged in copyright infringement.  On June 10, 2010, summary judgment was granted, decision below.

All She Wants To Do Is Tax

They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
They’re pickin’ up the taxpayers and
puttin’ ‘em in a jam
And all she wants to do is tax, tax
Liberals been liberals since I don’t know
when
Well, we barely made twenty ten, the vote
was in doubt
And we finished up the campaign she
could hear the people shout
They said, “Don’t come back here
Boxer!”
But if she ever does – we’ll bring more
money
‘Cause all she wants to do is tax
and break our backs
Never mind the heat comin’ off the street
She wants to party
She wants to get down
All she wants to do is –
All she wants to do is tax
All she wants to do is tax and break our
backs
All she wants to do is tax

From the decision (page 24):

“The [fair use] doctrine has been said to be ‘so flexible as virtually to defy definition.’” Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (quoting Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)). The case-by-case analysis resists bright-line determinations and the resulting decisions inevitably represent a sort of rough justice.

After you read the decision, drop down for a genius mashup video of Sarah Palin yodeling for taxes.  Note to file: yodeling and Sarah Palin is fair use, but Don Henley Barbara Boxer ain't.  Since no one can define "fair use" - justice is really rough these days.

I am one of the few that think electioneering is core political speech that is really really tough to trump and I note that the political history of our nation was forged by anonymous mudslingers slinging every conceivable mockery at one another.  The Supreme Court's jurisprudence on political speech supports this view. 

I think that the district court erred because a politician's campaign video is not commercial speech (see p 18), even though the politicians want $$$$.  In politics, the Supreme Court has ruled that money = speech.   This I believe is at the core of the whole Obama/Hope poster drama, if you look at my posts on Shepard Fairey, it is explained there.

But I been a liberal since I don't know when.
CDCA: No Fair Use - Politico Infringed Don Henley Copyrights




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