AP shoots itself (twice) in the Copyright Wars.

The Associated Press occupies a controversial place in the so-called “Copyright Wars,” and it certainly isn’t making many friends anywhere in recent news. First, on December 31 of last year, AP filed its Amended Answer to Complaints, Crossclaim, Counterclaim., and a cross claim against Mannie Garcia. In that document, AP contends that it, not Garcia, owns the copyright in the photograph Garcia took of then candidate Obama that Shepard Fairey subsequently used as the source material for the (in)famous Hope poster. AP’s contention rests on the assertion that Garcia was acting within his the scope of his duties as a staff photographer for AP when he shot the photo and that it therefore constituted a “work for hire.”

There are, I think, two sets of allegations in AP’s latest filing that are interesting in terms of whether Fairey’s use of the photograph as source material for the poster constituted a non-infringing fair use. First, AP states that Garcia was sent to the event at which he shot the photo by AP in order to take photos such as the disputed one. Second, AP states that Garcia sent “several” of those photos to AP and that AP chose the photo it decided ultimately to publish. One might think these allegations reduce the extent to which Garcia can claim the shot was one so much of his own choosing. He was assigned to take the shots he took, he took a lot of them, and AP, not Garcia, chose the one that fit its purposes best.

AP also goes right after Garcia, accusing him in its counter-claim of committing fraud in registering his own copyright in the photo on the grounds that AP’s ownership of that copyright under the work for hire doctrine was so plain that Garcia knew he at the time he filed the copyright registration that he wasn’t entitled to do so. It might not be the only accusation of dishonesty hurled at Garcia in this case.

Meanwhile, AP, of course, has been quite vocal about voicing its contention that “news aggregators” infringe AP’s copyrights on a regular basis. No matter your view on the legitimacy of the infringement claim, there’s lots of reason to believe that AP’s stance is bad business. Google seems to have been a principal target of AP’s complaints, and yet shutting Google off (something, incidentally, AP could do at any time) would seem likely to drive traffic away from AP’s stories.

Well, Google seems to have called AP’s bluff. The Guardian reports that “it has become apparent that new Associated Press stories are no longer appearing on the site, which has hosted them since 2007. Google hasn’t added new AP content since December 24.“