The counterclaims are quite a read. (Whether they are a "a short and plain statement of the claim showing that the pleader is entitled to relief" or "simple, concise, and direct," as required by Rule 8, is another matter.) Much of the document is devoted to lengthy recitation of facts purporting to demonstrate that the AP is a Very Good Organization (help for victims of Katrina and the cyclone in Myanmar!) and that Fairey is a Very Bad Person ("arrested more than a dozen times for targeting communities with his graffiti, vandalism and related crimes") who takes a "Hypocritical Approach to Intellectual Property Rights." All very interesting, but of dubious relevance to the copyright issues raised in this litigation.
So what about those copyright issues? The more I learn about this case, and think about the relevant case law, the more skeptical I become of the AP's claim. Remember: the question is not "Did Fairey copy the AP's photo?" (which I think he clearly did). Rather, the legally relevant question is "Did Fairey copy protectable elements of the AP's photo?" So what light does the AP's filing shed on that issue? Here's what they say:
The Infringing Works copy all the distinctive and unequivocally recognizable elements of the Obama Photo in their entire detail, retaining the heart and essence of The AP’s photo, including but not limited to its patriotic theme. As the following side-by-side comparison illustrates, the striking similarity between The AP’s copyrighted image...of President Obama and the poster that Fairey made based on that image...is patently obvious...
OK, but isn't the "striking similarity" due largely -- if not entirely -- to the (unprotectable fact) that Obama's face looks "strikingly similar" to Obama's face in any image from a similar angle? And surely the AP does not have a monopoly in images of the president taken from that angle, no matter how distinctive. The AP goes on to claim:
Fairey was drawn to the unique qualities of this particular photograph, made distinctive by Mr. Garcia’s creative and artistic input, including (1) his deliberate selection of a specific moment in time to capture President Obama’s expression; (2) his choice in using a particular type of lens and light for optimal impact; and (3) his careful and unique composition of the photograph. These facts, combined with Mr. Garcia’s experience, skill and judgment, resulted in the creation of a distinctive image of a unique moment and expression of President Obama.
But again, while the photographer's artistic choices and use of skill and judgment are what renders the AP's photograph copyrightable in the first instance (which I don't believe Fairey disputes), the case law (at least where I live in the Ninth Circuit) suggests that such copyright is "thin" and "protects against only virtually identical copying." (I am open to arguments that the law in the Second Circuit is different.) And I suspect a court will find that Fairey's poster is not a "virtually identical copy" of the AP photo. Remember: this discussion is not an argument about fair use -- it's about whether Fairey copied protectable expression in the first instance. If the court determines that there was no copying of protectable elements, there is no need to conduct any fair use analysis.
(As to the disputed question over whether copyright in the photo is actually owned by the AP or the photographer, the AP states at ¶ 94 that Garcia was a "full-time salaried staff photographer" while he took the photo, which, if true, would seem to solidify the AP's claim that the photo is a work made for hire, which it owns.)
Another interesting point: the AP argues that Fairey has tried to hoodwink the public by implying that the image he used was a shot that included both Obama and George Clooney -- and that he only took a portion. In fact, asserts the AP, Fairey actually used a photo that only included Obama -- and took the whole thing. See page 42 of the counterclaims for a side-by-side comparison.
And the counterclaims raise some interesting issues about whether Fairey violated 17 USC § 1202, which bars the removal and alteration of "copyright management information" and whether he defrauded the Copyright Office by failing to note the use of the AP photo when he registered his own work.
If nothing else, the length and aggressive arguments contained in the AP's papers demonstrate that the news organization isn't going to go down without a big fight. This will be very interesting to watch.