Shepard Fairey Points Out That The AP Used His Image Without A License

from the getting-down-and-dirty dept

In the latest skirmish between the Associated Press and Shepard Fairey over copyright concerning his iconic poster of Barack Obama, Fairey has filed new counterclaims against the AP, including that the AP used the photo of Fairey's poster without getting a license. He also lists out a number of other images of artwork that the AP did not get a license to use, but which it uses within photos, and then states:

The doctrine of unclean hands and basic principles of equity prohibit The AP from contending that Counterclaim Defendants' Obama Works infringe The AP's copyrights when The AP itself exploits the copyrighted work of Fairey and other artists without permission and in a manner that is far less transformative than the Obama Works, as illustrated but not limited to, the photographs listed above.

It seems this battle is getting nasty. Of course, while making these claims may feel good, it's hard to believe that they'll be all that compelling. The AP will clearly claim that its photos of these pieces of artwork were fair use, as part of news commentary. But, that's probably part of the point being raised by Fairey's legal team. It's unlikely to believe that the AP really abused Fairey's copyright or the copyrights of these other artists, but if it can get the AP defending its acts on fair use principles, then they can easily use the AP's words against it, in explaining why Fairey's image is also covered by fair use.

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

Going Too Far In Kowtowing To Copyright Holders

from the public-domain-and-fair-use-exist... dept

In the past, we've used the website Scribd to upload documents that we want to show readers here -- usually things like court filings. It's a decent solution, and often better than providing a link to a pdf which annoys some people (myself included). Recently, the company has come under some misguided fire by copyright holders, falsely accusing the company of somehow making it easy to infringe on copyrights. The company has pointed out that beyond its existing DMCA safe harbors, the company goes above and beyond in helping copyright holders stop unauthorized use. In fact, we've defended the company against unfair attacks. However, it looks like the company has ramped up its attempts to appease copyright holders, and in some cases may be going too far. We already pointed out how it took down a public domain book (though it was quick to fix that mistake).

The latest, though, is that I just went to upload another document (a public domain court ruling), and as I did, I saw that Scribd now requires me to check off a box saying: "I certify that I own the copyright to these documents." That was troubling to me, because I do not own the copyright on this particular document... no one does. As I moved to upload the document at a competing site (DocStoc), I Twittered the dilemma, noting that I wasn't sure what to do. To Scribd's credit, it took a company representative all of three minutes to respond that public domain documents were okay, and that they would update the language of the uploader to make this clear. A quick response, which actually makes me feel good about Scribd, but... at the same time highlights the problem.

After getting so much pressure from copyright holders, Scribd feels the need to be extra proactive in "protecting" copyright, even to the point where its default decisions go too far. While it will now clarify that public domain documents are okay... what about cases where the document would be fair use? Someone should still be able to upload the document without declaring that they own the document or that it's in the public domain if it's a fair use case. This certainly isn't putting any of the blame on Scribd, who seems to be bending over backwards to satisfy everyone. But that's a part of the problem. The copyright holders are clearly pushing well beyond what copyright allows them to do, and it's putting pressure on Scribd to respond -- with the early response going so far as to wipe out certain user rights. The copyright supporters love this, because they don't care much about trampling user rights, but it shows just how screwed up things are that a company like Scribd even needs to be put in this position.

Filed Under: copyright, fair use, kowtowing, public domain
Companies: scribd

AP Says It's Going To Sue Aggregators

from the this-ought-to-be-fun... dept

Given some of the Associated Press's recent actions, this won't come as a surprise, but the AP has now announced that it will start suing any news aggregator that doesn't share its profits with the AP:

"We can no longer stand by and watch others walk off with our work under misguided legal theories."

I'm a bit curious what those "misguided theories" are... because copyright law and rules concerning fair use seem pretty clear, and search engines aggregating info and sending people to your site has been ruled fair use before. So, perhaps the AP chairman is talking about some other "misguided" legal theory? Another AP person claims: "This is not about defining fair use. There's a bigger economic issue at stake here that we're trying to tackle." But she neglects to say what that is, other than our old business model sucks, and we've got no freaking clue how to adapt to the changing market place, so this is the best we've got...

That said, I'm not sure how this is any different than how the AP has acted in the past. While the NY Times claims that this is a shot at Google, that seems unlikely. Google has already agreed to pay the AP -- though, the article notes that the AP may claim that the current license deal doesn't cover AP stories showing up in Google's regular search results. If that's the case, then Google should call the AP's bluff, and block out all AP articles. Then let's see how various newspaper sites feel. In the meantime, the AP has already sued others, including Moreover and All Headline News. And I know that some of the other top aggregators have already folded and started paying the AP, rather than go through a legal battle. So it's not clear what's new here other than unsupported bluster on the part of AP execs to make its member papers think it's doing something other than squandering money.

Filed Under: aggregators, copyright, fair use, news
Companies: associated press, google

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

Family Guy Song Didn't Infringe On Pinocchio Song

from the when-you-wish-upon-a-star... dept

It's another victory for fair use, as a judge has sided with the producers of the animated series Family Guy in a lawsuit over whether the song When You Wish Upon A Star was infringed by a parody song. The judge sided with Family Guy, noting that the song was used for humorous intent, and the "wholesome" association between the original and the movie Pinocchio made the song ripe for parody. This isn't the first time Family Guy has won lawsuits from people who are apparently unaware of the legal acceptance of parody... Somehow, it's unlikely to be the last time either.

Filed Under: fair use, family guy

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

EFF Gears Up To Fight Back Against Bogus YouTube Takedowns

from the fair-use,-huh? dept

Last month, we were a bit surprised by claims from an NBC Universal representative that filtering technology in use today could distinguish between fair use and infringement when it came to content online. That was a surprise to us, because we've seen no such technology -- while seeing plenty of bogus takedowns. That's only increased in the last few weeks since Warner Music decided to demand more money for any video on YouTube that included Warner Music Group music, leading to many videos being taken down. The response is not just pissing off and damaging Warner's own musicians, but also many, many fans whose videos almost certainly do not infringe or are covered by fair use rules. Warner's public response to all of this, by the way? "No comment."

The EFF is noticing this as well and is pointing out that it correctly warned that various automated filtering technologies wouldn't take fair use into account and would cause many more problems. Now, the EFF is clearly looking for a test case, asking those whose videos have been taken down, despite clear fair use -- such as the teenaged girl who's video of herself singing "Winter Wonderland" was removed -- to contact the EFF. I expect we'll see lawsuits filed in short order.

Filed Under: copyright, fair use, videos, youtube
Companies: eff

Fox Demands Site Give Up Fair Use Rights, Run Special Fox Ads, To Do Any Commentary

from the fair-use-doesn't-work-that-way dept

Here's a follow up to our story last Friday about Progress Illinois having its YouTube account restored. The YouTube account had been taken down following multiple DMCA takedown notices from Fox, leading YouTube to institute its usual policy of shutting such accounts down. Progress Illinois sent a counternotice, and after Fox failed to sue the activist group, the account was turned back on. Paul Alan Levy points us to some more troubling details about the discussions between Progress Illinois and Fox. Apparently, Fox sought to have Progress Illinois waive its fair use rights on all future Fox material and demanded that it be allowed to run ads on the Progress Illinois site in exchange for allowing the content to be placed on YouTube. On top of this, Levy notes that Fox is apparently preparing a deal with another video site (that will include its desired ads), which Fox will apparently demand sites use in reporting on Fox News reports. As Levy suggests, Fox may then use this to suggest that any "unauthorized" clip of a Fox broadcast fails the "impact on the market" prong of the fair use test. If true, that could create quite an interesting test case the first time Fox employs that argument on a site doing commentary. Its lawyers do know that failing one prong of the test doesn't automatically disqualify a fair use defense, right?

Filed Under: commentary, copyright, demands, fair use
Companies: eff, fox, progress illinois, public citizen

YouTube Bans Video Essayist; Apparently Commentary No Longer Considered Fair Use

from the sigh dept

On Wednesday, at the Congressional Internet Caucus' State of the Net 2009 conference, during the panel on digital copyright, NBC Universal's Alec French made the case for technology-based filters on various websites, claiming that the filtering technology is so incredibly good these days that it can even understand fair use, and not block it. That seemed like quite a claim, and one at odds with pretty much everything we've seen. Of course, it may be in how he (and the entertainment industry) defines fair use. The example he gave was a Saturday Night Live video that was stitched together from clips from various newscasts, rather than the original SNL video. French pointed out that the software could tell the difference, and such a clip would be allowed to stay up.

Unfortunately, things don't always work that way in reality. Michael Geist points out that YouTube has banned a video essayist, claiming that his commentary videos, which included clips from various movies, had to be taken down due to copyright violations -- and since it happened three times (yay, three strikes), his entire account was banned. So, here's a case where it seems that since the clips were used for commentary -- which is a clearly accepted fair use -- and, yet not only were the videos taken down, the guy's entire account was banned.

Geist points out that this isn't YouTube's fault, since it's just obeying the DMCA. But he does fault the DMCA for creating such a chilling effect on commentary and creativity. But there's a larger point too. French insists that computers can somehow tell what's fair use and what isn't -- at a time when humans still argue about it pretty much every day. I'm sure there will be some copyright system supporters who speak up in the comments (as they often do) that we're crazy to think such videos were fair use. Given that, how can anyone actually believe that a technology system can accurately determine in any automated way what is and what is not fair use?

Filed Under: chilling effects, commentary, copyright, fair use, filters, takedowns, videos