The AP/Shepherd Fairey Dispute

Even though I’ve mentioned it in two recent editions of the 3 Count and plan to talk much more about it on the Copyright 2.0 Show tomorrow, I’ve been getting a lot of emails and some tweets asking me what I thought.

So I’m going to take a few words here to talk about this case, what my thoughts on it are and the likely outcomes seem to be. I’m going to try and keep this brief, even though it is a complicated case with a lot of elements in play at once.

The Story

The basic story of the lawsuit is well-known by now. Shepard Fairey produced the now-iconic poster of now-President Barack Obama back when he was in the early stages of his Presidential campaign. The poster, which is shown in part above, was based on a 2006 AP photo taken by Mannie Garcia, who was what he calls a “temporary hire” for the AP at the time.

This was in contrast to many earlier reports that it was based on a Reuters photo.

Some time within the past few months, though it seems to be unclear exactly when, the AP discovered that the poster was based on their image and has sued Fairey for copyright infringement. Fairey is being represented by Anthony Falzone, Executive Director of the Fair Use Project at Stanford University.

The case, obvious, is still pending.

Problems with the AP’s Case

In the short period of time since the case has come to the public light, there have been several issues with it that have been raised:

1. Copyright Ownership: Mannie Garcia has come forward and said that he was not a full-time employee of the AP at the time the image was taken and that causes doubt as to whether or not the AP even has the copyright in the image as the work-for-hire and contractual issues are unclear.
2. Fair Use Issues: Fairey’s use of the photo raises serious fair use issues. The use of the image was almost certainly transformative, so much so that the AP didn’t recognize the image for quite some time, was for a political purpose, the most protected form of speech typically, and was non-commercial in nature. Though there are elements against Fairey, such as the use of the whole image and arguable damage to the market for Obama posters, Fairey does seem to have a reasonable fair use argument.
3. Lack of Assets: Since Fairey did not earn any revenue from the poster, a claim he has repeated many times, and does not seem to have a large amount of assets of his own, the odds of the AP collecting on any large judgment is slim, at least not for quite some time.

In short, the Associated Press has to first answer very serious questions about ownership, defeat a relatively strong fair use argument and then find a way to collect from a source that, from all appearances, does not have enough assets to cover any major judgment.

The end result is that the AP has an uphill climb in this case. Though it certainly is possible that they can win, there are a lot of obstacles making this case a difficult one, especially if they hope to actually collect on it.

The AP’s History

This is not the first time that the AP has found itself at odds with the Web on issues of fair use. Many will recall their battles with the Drudge Retort, briefly covered here, over snippets of their content appearing on the site. The AP has been notoriously aggressive about narrowly defining fair use, even being banned on TechCrunch for their previous actions.

With this noted history of trying to having a very narrow view on fair use, the AP comes into this with a lot of users on the Internet already looking for blood. This lawsuit seems to have divided the Internet community pretty sharply, causing some photographers and artists to applaud the AP’s move while others are sharply condemning it and using it as a call for copyright reform.

Of course, this use and whether or not is it is infringing already plays well into the existing paradigm of fair use. The judge and/or jury in the case will have the chance to decide this issue, no reform needed.

The real question, for me, is why the Associated Press took this case on so willingly. Between all of the legal issues in the case, it seems unlikely that they are going to recover enough damages to make it worthwhile, especially when one factors in the PR damage and general ill will this case has already created.

Typically, this type of problem comes about when the lawyers deciding what cases to take are insulated from the business and PR people. Lawyers look at the damages they will possibly receive versus the expenses they will likely create and make a decision to move forward, unaware or uncaring about how it affects the rest of the business.

Either the business heads at the AP are making some very questionable decisions, or the lawyers are too insulated from how this is impacting the company in other ways. Either way, on the surface at least, it appears to be a classic case of being penny-wise but pound foolish.

Conclusions & Predictions

Normally I would say that this is where the two sides will sit down and work out an agreement. That may still happen, but I had the good fortune of meeting Anthony at a conference in the Netherlands. He is a very smart and dedicated attorney that believes strongly in his cause.

He defended Ben Stein and the movie Expelled against a lawsuit by Yoko Ono Lennon and EMI, the Harry Potter Lexicon against J.K. Rowling and many other cases. He hasn’t always won, no attorney has, but he’s always fought and he’s always gotten rulings that bode well for fair use (the Lexicon ruling is an example of a loss that still bode well for fair use in general).

Falzone will represent his client well but he will not roll over and allow the AP to write its own version of fair use. Whether or not this particular poster is found to be an infringement, I would expect Falzone to push for a judgment that would benefit the notion of fair use as a whole.

So, in the end, it seems likely that this case will be fought out in courts for at least some time. Though there is a lot of debate about the likely outcome, the hope is that it will answer some questions about fair use and, perhaps, better define it in a way that everyone can better understand and take advantage of it.

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