Tuesday, February 10, 2009
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.
Labels: copyright infringement, copyright law, declaratory judgment, fair use doctrine, graffiti, obama, shepard fairey
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.