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.


Photo Attorney said...

Would Section 411 require registration for Fairey's declaratory judgment action for fair use and "non-infringement" since it states: "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title?" Fairey may argue that he does not have to comply with 411 since he is not making a claim for infringement.

Anonymous said...

Since it's a declaratory action about the A.P.'s copyright, why would Fairey need to have a registration in his work? 17 U.S.C. talks about registration (or a denied registration) being a prerequisite for an infringement action, but it would be strange for Fairey not to be able to bring a declaratory action suit because he hasn't registered his purportedly infringing work!

Anonymous said...

I was going to comment the same thing. Is that right about the registration?

The cease-and-desist letter creates the case and controversy. Why would it matter if the defendant has a registration?

Ray Dowd said...

Only the owner of an exclusive right to a copyrighted work has standing to seek the relief Fairey requests. To stay in federal court, Fairey should simply claim that he was expressing political opinions during a campaign which is core protected speech under the First Amendment to the U.S. Constitution and that AP is trying to use federal laws to abridge his speech. If he put "Obama is Evil" on the bottom of the poster, it would be even clearer to all that this is an artist's political opinion that cannot be abridged by copyright laws.

After the campaign, he'd have to rely on the "fair use" doctrine if he wanted to sell. To claim that a work is fair use in federal court, you still need to register it (or be denied registration).

Anonymous said...

First poster here: 17 U.S.C. 412 required registration for "an action for infringement of the copyright of a work." That's not what Fairey is alleging. Is there case law to support this interpretation?

Ray Dowd said...

The Second Circuit adopted the "complete preemption" doctrine in 2004. The case is Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004). Declaratory judgments involving copyrightable subject matter are covered.