We've covered the ridiculous AP case against Shepard Fairey, which ended in a settlement probably in large part due to Fairey's own stupid reaction to the case. He had what many fair use and copyright experts considered to be a very strong case on fair use here, but in destroying evidence and lying, he basically blew all credibility. In the end, it probably made sense for him to settle, because the court almost certainly wouldn't be able to separate out Fairey's own dumb actions from the key issues in the case. Of course, the AP is now looking to cash in even further on its victory, suing a variety of retailers, including Urban Outfitters, for selling t-shirts with the image.
The whole case is absolutely ridiculous for a number of reasons. First of all, the AP didn't even recognize the photo itself until someone else came along and pointed it out. And now it seems to claim that it deserves all of the benefit of Fairey's work? It wasn't the photo that made the work iconic.
The AP's claims here are even more laughable. Spokesperson Paul Colford, who every so often sends me chiding emails, when I point out silly things the AP does, might want to fire up his email client. Here's what he said:
"When a commercial entity such as these retailers, or the company that sold the shirts to them, gets something for nothing by using an AP photo without credit or compensation, it undermines the AP's ability to cover the news.
"It devalues the work that our journalists do, often in dangerous locations where they may literally risk life and limb to cover a story."
Can anyone read that without laughing? Seriously, Paul. What about this use "undermines the AP's ability to cover the news"? Absolutely nothing. It doesn't help the AP's credibility when it makes claims that can't even pass the laugh test. Nothing Fairey did took away from the AP. At all. Fairey made it clear that he wasn't interested in licensing an image, so the AP wasn't denied any money. And, again, since it came out that this was an AP image, it only generated a lot of positive attention to the AP (until they went legal).
Furthermore, how does it "devalue" the work of the journalists? Any logical look at this situation would suggest the exact opposite. It made more people value the AP's photojournalism work. And the stuff about "dangerous locations"? What does that have to do with anything? Was an event at the National Press Club in Washington DC with (then) Senator Obama and George Clooney a "dangerous location"? Of course, you mean other journalists, but please give a single example of how this harms them in any way. You can't. Because it doesn't. Saying this makes the AP look desperate, greedy and clueless... yet again.
Update: And just as I was posting this, word comes down that the case has been settled already. I'm sure it's easier to just fork over some money, rather than fight it, but what a joke.
It appears that much of the lawsuit involving copyrights and the iconic Obama poster by Shepard Fairey has come to an end, as Fairey and the Associated Press have settled their lawsuit*. As you hopefully know, Fairey created the poster, using an image that he admitted he found via Google News.
For quite some time, no one (including either the Associated Press or the actual photographer, Mannie Garcia) recognized what the original photo was -- clearly suggesting that the poster was transformative. Finally, two years ago (after the election), a photo journalist named Tom Gralish tracked down the original photo. At the time, Garcia seemed thrilled that his photograph had been used. But the whole thing quickly went into bizarre-town, as the AP flipped out and threatened to sue Fairey, despite the fact that it had never realized he used their photo. Considering the level of transformation, and the lack of artistic choices by the photographer, there was a strong argument that there was little in the photograph that was actually protectable, and what was protectable, was likely fair use in the manner it was used.
Fairey, confident of his position, sued the AP first, leading to a countersuit (and later, a bizarre side argument when Garcia claimed that he owned the photo, not the AP). Of course, the case got a lot more complex (and ridiculous) when Fairey stupidly destroyed evidence and lied about which photo he had used. For someone who had such a strong legit argument, this seriously undermined his case.
Of course, what's never been explained is how the AP was actually "harmed" here. If Fairey hadn't used that photo, he would have found another photo. No one associated the poster image with the AP, and the revelation that it was an AP photo only increased the attention for that AP photo. The whole thing was silly, and perhaps the AP realized that in coming to this settlement. Fairey, of course, had every reason to settle because of his own stupid actions that undermined what otherwise was a solid case. The details of the settlement are a little strange however:
As part of the deal, Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative. The two sides also reached a financial settlement; terms weren't disclosed.
The release said neither side surrenders its view of the legal issues surrounding the dispute. The deal also calls for both sides to work together with the "HOPE" image and share rights to make posters and merchandise based on it.
I can understand this, but I wonder if, in that first part, Fairey has effectively given up his fair use rights -- and whether or not that's legal. If Fairey has a perfectly legitimate fair use of an AP image, and doesn't license it, is that still a violation of this agreement?
And while it's unfortunate that we won't get a court to rule directly on the fair use issue, it appears the case is not totally over. In another article detailing the case, it notes that the case will continue against a clothing manufacturer One 3 Two*, who made shirts with the image, and is still fighting and saying that its use did not infringe. However, it also basically says that it licensed the image from Fairey, and if it did anything wrong, basically the blame should land on Fairey.
Lawyers for clothing manufacturer One 3 Two said in court papers that the "total concept and feel" of the AP picture and the Obama image were different. They said that while the AP picture "depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey's street art."
The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey's images as it sold apparel and other merchandise using the art.
It would be nice if we actually got a clear ruling that the image did not infringe, but that seems unlikely.
* It's worth pointing out that both articles I've linked to here were written by Larry Neumeister of the Associated Press. While I am sure that Neumeister did his best to be totally objective, in the past, the AP's reporting on this case (which, obviously, is partly about the AP) has not always been objective or fair.
Well, well, well. Remember back when the Associated Press threatened bloggers for quoting snippets of AP articles? Is the organization considering dipping its toes in the Righthaven waters? The Las Vegas Sun reports that Righthaven has signed up Media News as a client and has sued a blogger on behalf of the Denver Post, after the blogger apparently reposted a Denver Post column by Mike Rosen (with a link and credit). This is interesting for a few different reasons. First, it was just a few weeks ago that the Denver Post published a cryptic "reminder" about copyright that had a bunch of people scratching their heads. I had thought about mentioning it at the time, but it seemed so utterly lacking in context, that there wasn't much to say. I guess the Righthaven lawsuit provides context.
But, much more interesting is the Associated Press angle. You see, the CEO of MediaNews is one Dean Singleton. The same Dean Singleton is also the chairman of the board of... (you guessed it!) the Associated Press. He's also been their leading champion for the AP's backwards-looking bunker "lock everything up" mentality and its "DRM the news" strategy. So, if he's willing to partner with Righthaven and transfer copyrights to that company in exchange for suing bloggers, should we consider this a warning shot that the AP will be next? I'm sure that Righthaven would love that, though lately Righthaven's legal strategy hasn't looked so strong.
You may recall, a couple of years back, the Associated Press got a ton of negative attention for threatening bloggers who "quote too much" of AP articles. Soon after that, we were among those who noticed that the AP had a deal with a company called iCopyright, which seemed to suggest that "fair use" quotes were limited to four words or less. After that, rates started at $12.50 to quote five words. The AP later came out and said that this was entirely different, but to this date has never adequately explained when its deal with iCopyright applies and when it does not. This got some attention earlier this year, when the cheeky folks at Woot mocked the AP over this after the AP quoted Woot's CEO from his blog. Separately, some others noticed that the iCopyright system on the AP's site was so screwed up that you could just put in any text you wanted and "license" it -- even if it wasn't the AP's to license.
Basically, the whole iCopyright setup with the AP was a mess. And it just got messier.
The details are still limited (due to excessive redacting in the legal filing), but iCopyright has now sued the Associated Press, apparently claiming "that the AP frustrated its ability to do business, both neglecting to promote the service, as well as locking the company out of its servers." It's also claiming that the AP's silly attempt to DRM the news is an attempt to compete with iCopyright using what it learned from the company.
I do wonder if the PR fiasco from a couple years ago contributed to this. The AP never really clarified when the "pay for 5 words" license applied and when it didn't. While the AP put out a notice claiming that it didn't actually apply to bloggers, it was never clear why. And, confusion still reigned. In the article I link to above, in fact, the reporter notes that the iCopyright licenses were for bloggers -- even though the AP has explicitly claimed that it wasn't for bloggers. As Danny Sullivan pointed out in the first comment to this story, the AP has never done a good job explaining just when iCopyright applied.... and now the AP may be facing a lawsuit over that very point.
Apparently, the Associated Press, in its efforts to look for new publications to pay to reprint the exact same articles as hundreds of other sites (as some realize it's just not worth paying for), was in negotiations with Pet Holdings, the operators of internet favorite sites like iCanHasCheezburger and Fail Blog. However, the negotiations apparently fell through when the AP became concerned about how such a deal would reflect on the company's "journalistic integrity." I'm trying to figure out how a legitimate license for its content could ever look bad for its journalistic integrity. I would argue that certain other actions by the AP have done plenty more to damage its journalistic integrity over the years.
We've been covering the ongoing legal battle between artist Shepard Fairey and the Associated Press over whether or not Fairey's famous Obama "Hope" poster infringed on the AP's copyrights. It's difficult to see how the AP has a case here, as the AP itself didn't recognize the work as being based on one of its own photos until months later when someone else figured it out. If that's not a clear cut case of transformative use, I don't know what is. On top of that, there are serious questions about whether or not anything that Fairey used is actually covered by copyright. Even if you assume there is copyrighted material in the poster, going through the four factors test for fair use, it's difficult to see how the AP has a case.
That said, Fairey did make one incredibly dumb mistake, which potentially ruined his whole case: he lied and destroyed evidence. It's difficult to think of anything stupider that he could have done. He had an incredibly strong case, and his actions massively weakened that case, because even if you recognize the strong position he had in the case, once you hear that he lied and destroyed evidence, it gives you pause, and makes you question the whole thing.
That said, we'd noticed that the AP's coverage of the case hardly seemed objective, and despite supposedly being impartial reporting on a topic that involved the AP itself, almost always seemed to slant towards the AP.
So, it's interesting to note that, last week, apparently, a judge (surprisingly) denied the AP's request for sanctions against Fairey for some of his actions during this case. That seems like fairly big news in the case, but if you look around for it, it does not appear that the AP deemed it was worthy to report on. I wonder why... Update: Just to clarify, as someone asked, this particular request for sanctions wasn't about the particular mistake discussed above, but some of Fairey's responses. I had tried to make that clear, but perhaps it wasn't clear enough.
So, you may have noticed the amusing little story we had on Woot's response to the AP for quoting Woot's blog post. The Woot blog post did a tongue-in-cheek mocking of the AP for copying its text, when the AP made a huge deal of bloggers doing that to the AP a few years ago. It was a fun post to kick off the week, and we figured everyone would take it in good fun. However, as you can see on the "update" to that post, we got a slightly peeved email from the AP's "Director of Media Relations" (who's been sending us a lot of peeved emails lately), Paul Colford, which started off with the classic trollbait comment that haters love to post as blog comments: "Slow news day?" Then he mentions that the AP INTERVIEWED (yes, he used all caps) Woot's CEO Matt Rutledge, as if that makes things okay. Of course, the "interview" (sorry, INTERVIEW) is at the end of article and consists of: "I'm really excited."
Apparently, in the world of the AP, if they get you to say three words to them, then it's now okay to copy content from the source. Even more odd, the email then said "Meanwhile, AP staffers across the Gulf region and in Washington continue to provide comprehensive coverage of the oil spill." I have no idea what this non sequitur is supposed to mean, but it appears that I'm not the only one who got a version of this email. MG Siegler at TechCrunch got something similar as did Rutledge himself. Tragically, it looks like I was the only one to get the "slow news day" snark.
MG took the email to its logical conclusion. Reading between the lines of Colford's email, he appears to be saying that if you get someone to say three words to you, then it's suddenly okay to quote their site without payment. As Siegler then notes, since he exchanged a couple of emails with Colford on this topic, he's now "interviewed" him, and thus, according to Colford and the AP's own internal logic, it's okay to copy text of of the AP's site, which Siegler does -- picking a recent story about the oil spill in the gulf, since Colford was so quick to point that out. I think Siegler's on to something. What I thought was a total non sequitur apparently is really a sign that we should now repost AP stories, since we've "spoken with" Colford and the AP. I mean, that's the most logical explanation, right?
Why do I get the feeling that I'll soon be receiving another email from Colford "clarifying" the AP's position?
There are so many reasons to love Woot, including their recent awesome letter and video about their acquisition. But, even better may be that in today's Woot offering, they mock the Associated Press for its coverage of the Woot acquisition, because the AP just happens to have also copied text from the awesome Woot letter. Now, that's all well and good for most publications, but this is the AP that we're talking about. The same AP that threatens bloggers for copying headlines and snippets. The same AP that insists it needs "hot news" to protect others from "free riding" on its work. And, most importantly, the same AP that has a famously ridiculous pricelist for quoting five words or more from an AP article.
It appears the folks over at Woot noticed this price list, and noticed that the AP report on its acquisition copied more than five words. And thus, the smart folks at Woot calculated that the AP owes Woot $17.50 for quoting Woot without permission (though, they'll take buying today's deal as payment instead). Of course, I would have probably added a "hot news" freerider surcharge as well. After all, people reading the AP story now no longer had any reason to go to Woot directly to find out the news. Hell, at least folks like us linked directly to Woot's letter. But that's far too neighborly a thing for the AP to do. Instead, it just quotes with no link at all.
Update: An apparently upset AP media relations person has contacted us to ask us if it's a "slow news day" (answer: no, not at all -- why do you ask?). Also, according to the AP, the article also shows that the AP spoke to Woot's CEO on the phone, and that, apparently, makes what the AP did okay. If only I had known that the AP's fair use quoting rates had an exception for "we spoke to you on the phone." Unfortunately, I don't see those exceptions anywhere. Perhaps I'm missing them. The AP would also like to remind us that it's reporting on the oil spill in the gulf. No, I don't understand this non sequitur either, but that's how the email concludes. In the meantime, I'm still wondering if the AP paid Woot for the news of reporting on them. If not, isn't the AP "freeloading" on the newsmaker? Or do the rules the AP sets out for everyone else not apply to the AP?
Someone who prefers to remain anonymous sent over this story about how Associated Press stories hosted on Yahoo News appear to have tons of comments from old stories. It's not entirely clear what's happening, though I have my suspicions (explained further down), but it appears that when new stories are showing up on certain topics, Yahoo is simply copying over older comments from previous stories on similar or related topics. The comments look as if they're about the story posted -- and the only way you can tell they're not is if you notice the date:
I'd go from one Yahoo article to another and notice that regardless of the subject matter, the first user comment was always the same -- at least on AP articles covering the Israeli/Palestinian conflict. The comment that kept reappearing was posted by "Robert" and it was a one liner. "Hamas is now in control of the Gaza Strip after winning an election there against Abbas Palestinian Authority." That was it. Fair enough -- I've got no quarrel with the messenger or the message. But somehow that one comment generated an incredible 184 responses and, last I checked, readers had given it 3212 thumbs up and 2525 thumbs down.
I got a little curious about why Robert's one liner had generated so much controversy. I've written hundreds of articles and never got anywhere near that kind of attention. Frankly, I was full of envy. How did 'Robert' pull this off with one miserly line? Then I noticed the strangest thing: it was dated March 09, 2010. The comment was two months old and was the lead comment of 40,000 responses. That seemed a little high considering the fact that the AP article I was reading had only been posted for thirty minutes.
What were Yahoo and AP up to? The answer is simple; they were porting comments from one article to another and, in this particular case, they've been doing it for two months.
Oddly (and inexplicably) the author of that post, Ahmed Amr, does not link to Yahoo to show this, but it's not hard to find. Here's a story published on June 3rd, 2010 at 9:19pm. Yet, there's that same first comment, from March 9th, at 12:47am. And here's a story published on May 6th at 1:09 pm with the identical comments, also beginning with the March 9th comment. To let you see what they both look like before they change (and I'll explain in a second why I think they'll change) I've turned both of those pages into PDFs, which you can see below (you may have to either download or view at full screen and scroll to see the "comments" at the bottom):
I've also looked around and found really similar things on other stories. While Amr is suggesting there's something nefarious going on with the AP "manipulating" comments (and he specifically calls out the reporters from the AP who he believes are a part of this), I'm going to guess that this is more typical (embarrassing) incompetence on the part of Yahoo, rather than malice.
Take a look at the two links I put above to the Yahoo stories. The URLs (as found by a quick search for the comment string Amr mentioned in his post) are as follows:
Notice something similar? The last bit of the URL string is identical "/ml_israel_palestinian". The only difference is that the second URL, the story from May 6th, inserts two additional directories, with the top one being the date of publication. We already know that, due to a total disregard for the basic principles of the way the internet can and does work, that the AP limits its partners from hosting AP articles for very long. I believe on most sites you can host the articles for a month and then you need to take them down completely. With most sites, what happens is you get a 404 error or page not found (to this day, I can't figure out why they don't at least point you to a place where you can find the missing article). However, it appears that Yahoo decides to recycle the URLs in an attempt to make the URLs simple and understandable. So, any basic story about the Israeli Palestinian conflict might appear under that first URL. For all I know, by the time you're reading this, it's an entirely different story than the one that was published on June 3rd.
After the date of publication, breaking the basic principle of a link to a news story being a link to that news story alone, Yahoo moves the story to a new date-defined directory, and the original URL is freed up for the next story on that particular topic. If this seems stupid and confusing to users and destructive to the very idea of the "link economy" or valuing earned or passed links, you're right. But take that up with Yahoo and the Associated Press.
Of course, here's where the real level of tech incompetence comes in: It appears that Yahoo News' comment system doesn't understand that Yahoo does this. So, it associates the comments to that last bit of the URL string "/ml_israel_palestinian" and the same comments will appear every time that string is used as the final part of a URL string. It's bizarre that Yahoo would do this, but apparently, that's how Yahoo rolls.
Amr suggests that this is part of a planned bit of "corporate fraud" by Yahoo and the AP, perhaps to make it look like certain stories are getting a hell of a lot more comments than they are. He also suggests other conspiracy theories involving pro-Israeli operatives, saying that as far as he can tell, this only happens on AP stories concerning the Israeli/Palestinian crisis. I believe Amr didn't try very hard to find alternatives. On my very first attempt to find an example related to something entirely different, I found the identical behavior. I just picked a popular story that likely would have multiple stories over multiple days: the BP oil spill in the Gulf. Then I looked for an AP story hosted by Yahoo News... Bingo.
The first news story I found was published on June 3rd at 2:28 pm, but the first comment on the story? Why it's from May 1st at 2:06am. And the URL? The string ends with "us_gulf_oil_spill_947." You can find the identical comments on this story which was published May 21st, but ends with the string "us_gulf_oil_spill" suggesting that Yahoo's comment system also ignores numbers at the end of that final URL part in replicating its comments.
And here's another story about the White House's response to the oil spill. Published June 3rd at 11:57 pm. First comment? May 10, 2010 12:58 pm. URL string? "us_gulf_oil_spill_washington_9". And here's a story from May 17th with the identical comments at the end, with the closing URL string "us_gulf_oil_spill_washington_1." Yup, Yahoo seems to just match up comments with pretty simple URL hashes.
You can see all of that below as embedded PDFs:
So while it's easy and tempting to ascribe this to "manipulation" and suggest malice on the part of the AP or Yahoo or whoever else (Israeli operatives? Seriously?), it seems pretty clear that this is more due to technical incompetence on Yahoo's part, somewhat driven by the AP's ridiculous "delete this story after x days" licensing policies.
Update: The AP got in touch to make it entirely clear that this is entirely Yahoo's incompetence and not its own:
The Associated Press distributes news content to Yahoo! News, but the display of AP stories and the curating of comments are entirely up to Yahoo!
While undoubtedly true, in the comments we've heard from multiple people who work at news sites that license AP content, and they note that AP has a weird feed process, whereby it gives a simple slug like the ones used above, so that it can force update stories, often leading people to see stories totally change over the course of the day. This is clearly a Yahoo issue, but AP's policies don't help.
You may have seen the story we recently had about a woman suing Google after she got hit by a car while following Google Maps' walking directions. In that post, we linked back to Danny Sullivan's post about this story at Search Engine Land (where he noted that Gary Price had tipped him off to the news). In our post, we recommended people read Danny's full writeup, highlighted some of the points he made and added a bit of our own analysis. Of course, it's a hot story, and so lots of other publications wrote up their own versions of it as well, and Danny is now pointing out that the vast majority of mainstream publications did not credit him at all with breaking the story -- some of whom even used the images that Sullivan created in their own stories without credit.
Of course, the one I find most interesting is the Associated Press. The story published by the AP basically repeats a lot of what Danny put in his report, but fails to mention that Danny had the story first, and did a lot of the journalistic legwork in understanding what the story was about. Now, I've gone over this issue before in the past: and I don't see any legal reason why others should be required to cite their sources, but do believe it's the neighborly thing to do, and tends to lead to goodwill back in your direction as well.
But, when we're talking about the AP, this is an organization that has sent DMCA notices and threatened a blogger with legal action for linking to AP stories along with a headline and a short (35 word) excerpt. This is the organization that has claimed it was planning to sue others for creating similar stories and specifically sued All Headline News for supposedly rewriting its stories. This is also the same AP that thinks it gets to define fair use, and that means that any use of 5 words or more is not fair use. This is the same AP that claims that creating an entirely new artistic work based on an AP photograph is, in no way, fair use.
Yet, this AP has no problem making use of Danny's original reporting, without even so much as giving him credit?
