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.

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.