tag:blogger.com,1999:blog-5383512304639632735.post5036725839460986423..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: Shepard Fairey sues AP over Obama poster; seeks declaratory judgment of noninfringementBen Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-5383512304639632735.post-21703404094856933122009-02-16T09:15:00.000-08:002009-02-16T09:15:00.000-08:00We must answer the following riddle: When is a pho...We must answer the following riddle: When is a photograph no longer a photograph?<BR/><BR/>Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.<BR/><BR/>The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.<BR/><BR/>There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.<BR/><BR/>Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.<BR/><BR/>Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.<BR/><BR/>The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.<BR/><BR/>Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other--all remain perfectly distinct and identical to the original.<BR/><BR/>Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction--but photographic nonetheless.<BR/><BR/>We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.<BR/><BR/>http://bulk.resource.org/courts.gov/c/F3/207/207.F3d.1119.98-16061.htmlAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-89585098787641295522009-02-10T17:59:00.000-08:002009-02-10T17:59:00.000-08:00@A&F--yeah, but Lemley couches the transformat...@A&F--yeah, but Lemley couches the transformative argument in some hyperbolic language about "critique" and "artistic freedom" that doesn't really apply--to paraphrase me, he wasn't critiquing Obama here, and artistic freedom doesn't give you the right to gank somebody else's photograph. <BR/><BR/>As for transformation: to you Fairey created a new work of art, to me he colored in a picture and wrote on it. I tried that with the Mona Lisa and was not so much hailed as a visionary as kicked out of the Louvre.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-43188513252076890882009-02-10T07:33:00.000-08:002009-02-10T07:33:00.000-08:001) Julie Ahrens from the Stanford Fair Use Center,...1) Julie Ahrens from the Stanford Fair Use Center, who is listed as one of Fairey's attorneys, is admitted in NY.<BR/><BR/>2) Just a guess, but I suspect that filing in the SDNY was strategic. There have been some strong pro-fair-use cases in the 2d Circuit recently, including the Bill Graham Archives case and, more directly on point, Blanch v. Koons, which involved incorporation of a photograph into a work of art.<BR/><BR/>3) I think it will be pretty difficult to avoid the question of ownership. And it will be impossible to avoid if the AP counterclaims for infringement, which I suspect will happen.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-35505725624483736762009-02-10T07:04:00.000-08:002009-02-10T07:04:00.000-08:00(1) Thank goodness that Fairey has some decent lit...(1) Thank goodness that Fairey has some decent litigators working for him (to avoid the Tenenbaum mess)... except, it appears that none of the signatories is admitted to SDNY; I haven't looked at the local rules, but I would guess that you'd need local counsel if you wan to appear PHV... please say this isn't the first of many gaffes.<BR/><BR/>(2) You probably know better that I Ben-- was the decision to file in SDNY made strategically (i.e. there is better Fair Use precedent there than in, say, NDCA) or simply because the AP is headquartered in NYC and they didn't want a venue fight? I would think deciding the venue would be a HUGE decision.<BR/><BR/>(4) Count I of the dec action doesn't specifically spell it out, but do you think that Plaintiff is going to seek a specific declaration that the AP does not own the copyrights in the image? To me, based upon what I've read, that seems to be the easiest way for them to win, and fairly easy to plead based upon information and belief.<BR/><BR/>(4) JDC above -- Lemley's noticing the TRANSFORMATIVE nature of the work, which some commentators (not necessarily here at C&C) believe is nearly determinative of the fair use issue. Fairey did not simply put is signature on someone else's prints... he created a new work of art. The question is whether it's "derivative" (and thus infringing of the AP photo) or whether its use of the previous work is "fair."<BR/><BR/>Kyle K.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-47617513962331999672009-02-09T13:27:00.000-08:002009-02-09T13:27:00.000-08:00I didn't get through the entire post (having just ...I didn't get through the entire post (having just seen The Reader, I prefer to have everything narrated for me by a German teenager) but I did see Mark Lemley's quote at the end. <BR/><BR/>What the hell, Lemley? "Artistic freedom threatened?" "Improper use of the copyright laws?" "Public critique of politicians?" "Whose?" Bear in mind, this was not a "critique" of Obama, but a campaign poster. Fairey could easily have gotten another photo from the candidate's people, replete with permission to use it. Instead he appropriated another "artist's" work.<BR/><BR/>Now if you'll excuse me, I'm going to sign my name on some Fairey prints and sell them as my original work. That's cool, right?Anonymousnoreply@blogger.com