Why Is The AP Invoking The DMCA Over The Obama Poster?

from the dmca-abuse dept

We've been covering the ongoing legal brouhaha between the Associated Press and Shepard Fairey over whether or not his iconic Obama poster was copyright infringement of an Associated Press photo -- with most of the focus being on whether or not the use was protected by fair use. However, the EFF is noting something quite odd (and quite troubling) in the AP's countersuit against Fairey: it's claiming that his post violates the DMCA. That should leave you scratching your head, considering that the DMCA seems almost entirely unrelated to Fairey making a poster. But the AP seems to be claiming that in removing the little copyright notice beneath its photo, Fairey violated section 1202.

As the EFF notes, since Fairey didn't "strip" the data from the image, but merely appears to have cropped the image for his purposes, it's hard to see how Fairey actually violated the DMCA here. However, more to the point, the EFF explains why this is likely been thrown into the case by the AP. By invoking the DMCA, it adds much greater potential statutory fines, than for a straight copyright infringement case. That gives the AP a much bigger potential award -- which it can use to pressure Fairey into settling. As the EFF points out, such huge potential fines creates a pretty massive chilling effect on others -- something all too common with the DMCA.

Filed Under: copyright, dmca, fair use, photos, shepard fairey
Companies: associated press

Has Mannie Garcia Changed His Tune About Shepard Fairey's Obama Poster?

from the unfortunate,-if-true dept

The Wall Street Journal is running an editorial by L. Gordon Crovitz, discussing the ongoing legal battle between Shepard Fairey and the Associated Press over Fairey's iconic poster of Barack Obama that was used during the campaign: The editorial admits that the legal issues aren't entirely clear, but definitely seems to lean towards the AP's side of the story, including making a rather odd assertion that this case is different than cases of people using snippets of songs on YouTube because "there's no opportunity to license snippets of songs and no harm done" to musicians whose music is used on YouTube. Now, I actually agree that there's really no harm done by music on YouTube, but I would imagine that some of the musicians engaged in ongoing legal battles against YouTube might disagree with Crovitz -- and he's not using the argument in the way we would. He's saying that music on YouTube is a different story compared to the AP and the original photographer who "make their livings selling their work." That may be true, but as I hope Crovitz knows, just because you make a living selling your work, it doesn't mean that fair use doesn't apply.

Also troubling is the false implication from Crovitz that since the AP and Garcia make their livings selling their work, this poster somehow diminishes that ability. I can't see how anyone could make that claim. In both cases, it would seem to have only increased the ability of both the AP and Garcia to make money, rather than decreased it. This particular photo wasn't exactly a huge money maker for the AP or Garcia -- and now it (and they!) are getting a ton of attention because of it.

But, perhaps most troubling may be the quotes Crovitz uses in support of his argument from the photographer, Garcia. As we noted way back when Garcia was first identified by someone else as the photographer, he didn't mind at all and even seemed flattered:

"I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work.... I wouldn't mind getting a signed litho or something from the artist to put up on my wall."

But, when Crovitz spoke to him, he seems to have changed his tune:

"When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."

It's really too bad if Garcia has changed his tune. It was really great, for once, to see someone flattered that their work inspired someone to do something great with it, rather than becoming litigious.

Filed Under: copyright, fair use, mannie garcia, photos, shepard fairey
Companies: associated press

Is Anything In Shepard Fairey's Image Actually Copyrightable By The AP?

from the searching...-searching...-searching... dept

With a lawsuit underway after the Associated Press accused artist Shepard Fairey of copyright infringement over his iconic Barack Obama poster (Fairey initiated the actual lawsuit, asking for a declaratory judgment that his image did not infringe, but that was after the AP publicly stated they were going to go after him for infringement), many are looking over the legal issues, and examining whether or not Fairey's use is fair use. In our initial post on the subject, it seemed pretty obvious that it was fair use, in large part because the AP didn't even realize it was an AP photo until someone else pointed it out -- suggesting that it was a transformative work, which represents a big part of the "test" for fair use.

However, law professor Peter Friedman, has a very interesting look at some of the relevant case law, pointing out that courts have clearly said that the elements of a photograph that are copyrightable are only those elements created by the photographer. He quotes some recent court rulings that have found that the copyright only covers those specific things (e.g., "posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved"), but elements beyond that are not covered by copyright. Friedman then points out that Fairey's image uses none of those supposedly copyrightable elements.



Basically, Fairey used Obama's pose -- which was not set up by the photographer, thus not covered -- and changed pretty much everything else about the image. So, he's wondering, what in the iconic image actually is covered by copyright?

Fairey's poster was not a copy of the photograph. It used one element, the angle of Obama's face, and changed everything else from the photograph. I doubt the choice of the angle was a creative choice on the part of the photographer. First, I would be surprised if the angle was not forced on him by the place the photographic pool was required to be, and, second, the angle is so generic that I can hardly imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply painted a copy of the photograph, I'd agree that it was an infringement. But he didn't. He changed everything except the angle of the head. And surely the choice of subject matter for the photograph was not a creative one.

Filed Under: copyright, fair use, peter friedman, photos, shepard fairey
Companies: associated press

The Troubling Implications Of Recognizing 'Hot News' As Property

from the you-can-copyright-facts? dept

A bunch of sites have been discussing the Associated Press's lawsuit against All Headline News, but I wanted to spend some time reading up on the case before commenting -- and the more I read, the more troubling it became. A standard tenet of copyright law is that "you can't copyright facts." However, it appears there are some exceptions to that, in practice -- which is the basis of the AP's lawsuit. Specifically, the AP is reaching back to some rulings from nearly 100 years ago, noting that "hot news" can be treated as property. Now, technically, this is outside of copyright -- but for all intents and purposes, it effectively creates a copyright on "hot news" using an amazingly broad five factor test:

1. a plaintiff generates or gathers information at a cost;
2. the information is time-sensitive;
3. a defendant's use of the information constitutes free riding on the plaintiff's efforts;
4. the defendant is in direct competition with a product or service offered by the plaintiffs;
5. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

In practice, that would effectively rule out any reporting based on a scoop by another news organization. That's obviously a ridiculous outcome -- but if the courts continue to recognize a "hot news" right, then that could be where things lead. And, given the AP's recent attempts to push to control as much of its content as possible, don't think for a second that it wouldn't look to use this rule even more broadly. The eventual implications of more widespread use of "hot news" rights could be massively damaging, especially in an age where news is spread through online sources, with lots of folks spreading the news themselves. For example, imagine seeing a breaking story over the AP wire and mentioning it on Twitter. That fourth prong would have to be proven (are you in direct competition? it might depend on who you are...), but think of all the ridiculous lawsuits that would result.

The "hot news" exception is only recognized in a few states -- but one of them is New York, where the AP filed this lawsuit. One would hope that courts would eventually recognize that such a right would violate the concept of copyrighting of facts not being constitutional, but we may be in for a long series of legal fights before that's actually decided.

Filed Under: copyright, facts, hot news
Companies: all headline news, associated press

Associated Press Considers Locking Up Its Online Content

from the hello,-opportunity dept

You can almost hear Reuters, CNN, UPI and a few others laugh maniacally over the news that the Associated Press is considering locking up its content. The Associated Press has a pretty long history of not having much of a grasp about how the economics of information works online, and this is the latest evidence. It wouldn't happen for a while -- because many online sites, including Google, have deals with the AP to present its content online for free. But, if the AP suddenly forced all partners to lock up their content, a couple of things would happen pretty quickly: other sources, such as those listed above, or new startups, would quickly jump into the void, thrilled that their largest "competitor" dropped out of the space. Yes, the AP is slightly different than those other players, in that it's a collective of newspapers sharing content, rather than a truly separate operation -- but functionally, they serve similar purposes. CNN, in particular, has made it clear that it would like to take on the AP with a wire service -- and having the AP lock up its content would make much easier for them.

Also, I know we point this out every time some clueless news exec claims that users need to pay, but it's worth mentioning again: nowhere do they discuss why people should want to pay. Nowhere do they explain what extra value they're adding that will make people pay. Instead, they think that if they put up a paywall, people will magically pay -- even though the paywall itself is what takes away much of the value by making it harder for people to do what they want with the news: to spread it, to comment on it, to participate in the story. Until newspaper execs figure this out, they're only going to keep making things worse.

Filed Under: content, paywall
Companies: associated press

AP Demands Money For Iconic Obama Poster Image

from the asking-for-a-fight dept

Just last week, we wrote about the question of whether or not the iconic image used on Obama posters that was created by street artist Shepard Fairey was copyright infringement. For a while, no one (including Fairey) could figure out what photo was the basis for the image. But a photojournalist tracked it down, and discovered it was by a photojournalist named Mannie Garcia, who was doing work for the Associated Press at the time. Garcia didn't mind at all, but as we noted in our post, the AP might take a different view on things, since it's so aggressive with copyright. However, even we thought the AP wouldn't be so stupid as to actually demand payment for the use of the image... but we were wrong.

Yes, the Associated Press is now claiming that the use of its image is copyright infringement and is demanding payment. Of course, it's probably worth pointing out that, until a week and a half ago, the AP had no idea that the poster was made using one of its images. If that's not a transformative (i.e., allowed) use of the image, it's difficult to say what is. Given the posturing on both sides, it doesn't look like Fairey (who's smartly being represented by Stanford's Fair Use Project) is going to back down. Hopefully, the Associated Press is finally taught what fair use means. It could use the education.

Filed Under: copyright, copyright infringement, mannie garcia, obama, poster, shepard fairey
Companies: associated press

AP Gets It Wrong Again: Wants To Restrict Certain Reports To 500 Words

from the you're-not-bloggers dept

It seems that the Associated Press continues to struggle to figure out how to deal with this whole online thing. It's still trying to revamp its pricing structure after a bunch of newspapers canceled their contracts as they were pretty pissed off that the AP is effectively competing with its own member papers. The AP has also had a bit of a run-in with bloggers over its ridiculous fair use policies. Its latest move seems to, once again, be getting pretty much everything backwards. Famed film critic Roger Ebert is complaining that the AP has sent down word from on-high that all entertainment articles must be 500 words or shorter -- including film reviews, interviews, news stories, trend pieces and (best of all) "think pieces." Apparently, if you need more than 500 words to get people thinking, you're a bit too verbose. On top of that, the AP is asking those same entertainment writers to focus on more salacious, attention grabbing stories in picking what to write.

It's not difficult to see what's going on here. The AP is trying to be more "bloggy." Shorter, more attention grabbing pieces? Apparently, it's decided that people online only want to read the quick hits on salacious stories. Of course, despite what some may think, that's not really true. The AP has an opportunity to be better than all of that. It could draw serious attention by creating real content that people want, rather than running after the latest fad. But, apparently, that's not in the AP's plan. It has the resources to do what various small-time blogs can't do, but apparently, it's going in the other direction. Perhaps it's not too surprising, but it's no less a mistake.

Yes, short, attention grabbing stories get traffic, but that doesn't mean good, thorough journalism would get ignored. The problem the AP is having isn't that its stories are too long, or not attention-grabbing enough. It's that it still views itself as a gatekeeper of information, rather than an enabler of both news gathering and news distribution. Of course, with each misstep by the AP, others are quickly moving in to take its place.

Filed Under: blogging, entertainment, reporting, roger ebert
Companies: associated press

CNN Looks To Take On The Associated Press

from the here-comes-competition dept

With the Associated Press bizarrely focusing on competing with its own members, it hasn't been much of a surprise at all that those member newspapers have been leaving in droves. While the AP recently announced that it was going to rethink its strategy, it appears that plenty of other news operations see the AP's self-destructive decisions as an opportunity. We already noted in that earlier story that some newspapers were banding together directly to share content, and now CNN is announcing its own wire service that newspapers can tap into. Clearly, newspapers value being able to get content from other sources (especially for international coverage), and it seems that news operations like CNN see the AP's problems as a big opportunity.

Filed Under: competition, newspapers, wire services
Companies: associated press, cnn

AP Suspends New Pricing Structure; Goes Back To The Drawing Board

from the let's-revisit dept

It's no secret that the Associated Press is in a bit of trouble. Since it changed its licensing structure and began competing directly with its own members, various newspapers both big and small have notified the organization that they plan to stop participating in the AP and no longer use its content (or submit content from their own papers). It took AP execs long enough, but they've now realized that something needs to change. They've suspended the new pricing structure and have said that they'll review just about everything. That's a good start, but considering the AP's general attitude that it is the sole gatekeeper and gets to unilaterally set the rules, it's going to need a pretty big attitude revamp first. The original Associated Press was designed to help newspapers by sharing resources. These days, its attitude seems more about helping the Associated Press.

In the meantime, if the AP doesn't get its act together, it's not like newspapers can't figure out other options. For example, 32 newspapers are apparently teaming up to share football content via NewsGator. This is the sort of thing that the AP was supposed to be doing before it focused on being a gatekeeper instead of an enabler.

Filed Under: business models, newspapers
Companies: associated press, newsgator

Tribune Company The Latest (And Biggest) In A Growing List To Drop Associated Press

from the ouch dept

While the Associated Press was wasting time stupidly threatening to sue bloggers for pointing people to AP stories without paying, perhaps the folks there should have been paying a bit more attention to actually making sure its business model worked. As we've been noting, over the past few years, its strategy has put it in pretty much direct competition with its members (the AP is made up of numerous member newspapers).

That's creating problems, as we've seen a variety of newspapers have recently been refusing to renew their contracts, notifying the AP that they don't want to participate anymore. There have been some notable names, from the Minneapolis Star-Tribune to the Cleveland Plain Dealer, but none of the "major" newspaper companies had bailed... until now. The Tribune Company, publishers of the Chicago Tribune, the LA Times, the Baltimore Sun and others has surprised many by telling the AP it's not renewing. That could be the big domino, as many other newspapers may follow suit. The article here notes even that some newspapers have been experimenting with picking days when they try to publish without a single AP story to see how it goes.

What's amazing is that, so far, it doesn't seem like the Associated Press recognizes that there's a real problem. They simply seem to shrug off each defection. At some point, the AP needs to realize that it needs to change, rather drastically, if it's going to survive. While the AP isn't like an ordinary company -- it's a non-profit cooperative made up of member news organizations -- that doesn't mean it doesn't need to have a working business model. Without that, and with big members dropping like flies, it won't be able to exist at all.

Filed Under: associated press, customers
Companies: associated press, tribune company