AP Sued Over Copyright Infringement

In an ironic turn of events the AP is now on the receiving end of a lawsuit over copyright violations. Shepard Fairey is actually suing the AP over the iconic HOPE poster. Fairey is asking the court for a declaratory judgement as to the proper copyright status of the work, specifically he is asking the judge to declare that his work is fully protected under the fair-use exception.

Before getting into the prospects for Fairey in the suit i should also note that there is actually a question over whether the AP actually owns the photo to give it standing in any lawsuit it might choose to bring in the future.

Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.

It really would be amazing to see the AP sued and held liable for attempting to claim ownership of the photo. In addition there are apparently possible criminal penalties for someone who falsely asserts a copyright ownership. Someone in the AP could theoretically go to jail if they are deemed to have fraudulently asserted claim to the copyright. This will certainly merit watching, now on to fair use....

The idea that Fairey would have a fair use defense has been kicked around the blogs a bit. That link is to an excellent discussion of the prospect at concurring opinions. The comment section is worth a definite read. Here is the argument for fair use from Daniel J. Solove professor of law at the George Washington University Law School.

Fairey's Obama poster strikes me as sufficiently different from the photo. There is certainly a resemblance, but they are far from identical.

To the extent that some elements of the photo are duplicated in the poster, it isn't clear that Obama's facial expression is unique enough to give the photographer the right to copyright all subsequent renderings of it. Can one, by taking a photo of a person, have copyright over all subsequent depictions of that person from that angle or with a particular expression or posture?

Moreover, the poster might constitute fair use. The fair use factors include:
1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market

The poster isn't a direct copy of the image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo. The AP seems to be attempting to be money-grubbing here with this rather petty copyright claim.

Without researching all the case law to see how heavily each factor is weighted and how each is measured its hard to straight up say that it is fair use. If i had to choose though i agree with Prof. Solve that the poster is fair use though i would like to see him elaborate on the distinction he makes in the market for the photo and the poster. Both seem to be marketed to the general public and fans of obama.

Most of the law profs who commented at Concurring Opinions felt that the work was transformative enough that it would succeed under a fair use defense so there is a good chance that Fairey actually wins his declaratory judgment. It would be good to see the AP lose a copyright claim.