A Blogging Hiatus

When I started this blog in December 2008, I said I wanted to counter the “shocking lack of balance in discussion of copyright and related issues on the Internet.” For almost two and a half years, I’ve tried to do just that. Armed with nothing but free Blogger software and a not-so-free PACER account, I’ve done my best to provide copyright owners’ side of the story on the major anti-piracy cases of the day, while countering the misinformation about copyright that too often dominates the blogosphere. And, thanks to help, tips, and encouragement from countless others who fight in obscurity for creators’ rights – not to mention the antics of Joel Tenenbaum, Jammie Thomas-Rasset, and most of all, Charlie Nesson – it’s been a blast. And hopefully I’ve done a small part to demonstrate why, when the studios, record labels, and music publishers go to court to enforce their rights, they usually win.

So it’s with a sense of accomplishment but some regret that that I’m putting the blog on hiatus for the foreseeable future. On February 28 I started in a new position as Content Protection Counsel at the Motion Picture Association of America, where my primary responsibility will be litigating anti-piracy cases on behalf of the MPAA’s member studios. For reasons that I think most litigators will understand, I’ve concluded that it won’t be possible to continue the blog in my current role; the issues of privilege, confidentiality, and conflicts, even if ultimately surmountable, are simply too dicey to worry about day-to-day. I plan to leave the blog up as long as Blogger will host it; the disclaimer that I’ve posted since the beginning still applies: “This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers.”

I encourage anyone and everyone who knows and cares about these issues to speak out, blog, comment on other blogs, and do whatever you can consistent with your day job. There is plenty of room out there for thoughtful commentary; I’d particularly recommend readers bookmark Terry Hart’s “Copyhype,” which since last summer has been providing rigorously researched debunking of some of the copyleft’s latest tropes.

Thanks again to everyone who has helped out over the past couple years. I’m still reachable at copyrightsandcampaigns [at] gmail.com.

Court: Merchandising of Shepard Fairey 'Obama Hope' image not fair use; factual issues remain on substantial similarity

The court in the case involving Shepard Fairey's use of an AP photograph in his famous "Obama Hope" poster has ruled that a company that manufactured and distributed clothing bearing the Obama Hope image under license from one of Fairey's corporate entities did not engage in fair use. The court, however, held that there remains a factual dispute whether the images used by One 3 Two, Inc. on its merchandise were "substantially similar" to the AP photo. Judge Alvin Hellerstein did not explain his reasoning in his brief summary order. Trial on the remaining issues is set for March 21. Here is One 3 Two's opening brief, and the AP's.
Shepard Fairey Summary Judgment Order

The claims between the AP and Fairey and his corporate entities have been dismissed pursuant to settlement.

AP and Shepard Fairey settle case; claims against corporate entities remain

The Associated Press announced that it has "settled in principle" its copyright case against artist Shepard Fairey over his use of an AP photograph in the iconic "Obama Hope" poster. The announcement of the settlement comes a little more than seven months after the judge in the case stated at a hearing, "sooner or later, The Associated Press is going to win" the case and urged settlement.

According to the AP's announcement:

In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the image and share the rights to make the posters and merchandise bearing the image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.

The AP's claims against other Fairey-related entities, however, remain. So do its claims against One 3 Two, Inc., a company that manufactured and distributed clothing bearing the Obama Hope image under license from Obey Giant, one of Fairey's entities. One 3 Two's summary judgment brief argues that it didn't copy protectable elements of the AP's photo but, for procedural reasons, does not address fair use. The AP's brief does argue that Fairey's and One 3 Two's use of its photo was not fair.

Still unknown is the status of the federal grand jury investigation of Fairey for his admitted falsehoods and evidence spoliation regarding which photograph he used as a basis for the poster.