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.“

Although the decision is by no means binding on the court deciding the Alabama case, a lawsuit filed in 2000 by Tiger Woods and ETW Corporation, Wood’s licensing agent, against the artist Rick Rush might be illuminating. The focus of the Woods lawsuit were a group of Rush’s prints depicting Woods’s victory at the 1997 Masters. Woods sued to protect “his name and his image under right-of-publicity and trademark laws.” Rush, like Moore, argued his prints are protected by the First Amendment. The U.S. District Court and the U.S. Court of Appeals in Cincinnati (6th Cir.) agreed with Rush.

The Sixth Circuit’s decision is illuminating, not only with respect to the lawsuit between Alabama and Moore, but also with respect to the dispute between the AP, Manny Garcia, and Shepard Fairey. The court explained in reaching its decision that, like Andy Warhol’s paintings of celebrities, Rush’s paintings were sufficiently “transformative” to be entitled to First Amendment protection:

When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity….

Accordingly, First Amendment protection of such works outweighs whatever interest the state may have in enforcing the right of publicity. . . . [I]n Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001)] the California [Supreme] [C]ourt []stated the test as follows: “Another way of stating the inquiry is whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”

. . . citing the art of Andy Warhol, the court noted that even literal reproductions of celebrity portraits may be protected by the First Amendment.

“ Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself…. Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence.”  Id. at 408-409, 106 Cal.Rptr.2d 126, 21 P.3d at 811 (citations and footnote omitted). . . .

The evidence in the record reveals that Rush’s work consists of much more than a mere literal likeness of Woods. It is a panorama of Woods’s victory at the 1997 Masters Tournament, with all of the trappings of that tournament in full view, including the Augusta clubhouse, the leader board, images of Woods’s caddy, and his final round partner’s caddy. These elements in themselves are sufficient to bring Rush’s work within the protection of the First Amendment. The Masters Tournament is probably the world’s most famous golf tournament and Woods’s victory in the 1997 tournament was a historic event in the world of sports. A piece of art that portrays a historic sporting event communicates and celebrates the value our culture attaches to such events. It would be ironic indeed if the presence of the image of the victorious athlete would deny the work First Amendment protection. Furthermore, Rush’s work includes not only images of Woods and the two caddies, but also carefully crafted likenesses of six past winners of the Masters Tournament: Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagen, Bobby Jones, and Jack Nicklaus, a veritable pantheon of golf’s greats. Rush’s work conveys the message that Woods himself will someday join that revered group. . . .

We find, like the court in Rogers, that plaintiff’s survey evidence, even if its validity is assumed, indicates at most that some members of the public would draw the incorrect inference that Woods had some connection with Rush’s print. The risk of misunderstanding, not engendered by any explicit indication on the face of the print, is so outweighed by the interest in artistic expression as to preclude application of the Act. We disagree with the dissent’s suggestion that a jury must decide where the balance should be struck and where the boundaries should be drawn between the rights conferred by the Lanham Act and the protections of the First Amendment.

In regard to the Ohio law right of publicity claim, we conclude that Ohio would . . . [apply] a rule analogous to the rule of fair use in copyright law. Under this rule, the substantiality and market effect of the use of the celebrity’s image is analyzed in light of the informational and creative content of the defendant’s use. Applying this rule, we conclude that Rush’s work has substantial informational and creative content which outweighs any adverse effect on ETW’s market and that Rush’s work does not violate Woods’s right of publicity.

We further find that Rush’s work is expression which is entitled to the full protection of the First Amendment and not the more limited protection afforded to commercial speech. . . .

In balancing these interests against Woods’s right of publicity, we note that Woods, like most sports and entertainment celebrities with commercially valuable identities, engages in an activity, professional golf, that in itself generates a significant amount of income which is unrelated to his right of publicity. Even in the absence of his right of publicity, he would still be able to reap substantial financial rewards from authorized appearances and endorsements. It is not at all clear that the appearance of Woods’s likeness in artwork prints which display one of his major achievements will reduce the commercial value of his likeness. While the right of publicity allows celebrities like Woods to enjoy the fruits of their labors, here Rush has added a significant creative component of his own to Woods’s identity. Permitting Woods’s right of publicity to trump Rush’s right of freedom of expression would extinguish Rush’s right to profit from his creative enterprise.

The difference between Moore’s case and Rush’s principally seems to be that Moore’s painting’s are far more “realistic” than Rush’s (as the painting pictured above demonstrates). In contrast, Fairey’s Obama Hope poster is more like Warhol’s paintings of celebrities. The funny thing is that I have no doubt Moore’s paintings take more time and effort — but time and effort are not what is protected by the fair use test; rather, originality of expression is.

I’m not sure why AP is pushing this point. First of all, it does not bear on the question of fair use at the heart of the case. Second, they’ve just been successful in establishing Fairey’s a liar. What more do they want? It will be far, far more difficult — and, as far as I can imagine, impossible — to establish that in January Fairey didn’t remember which photo he used (rather than incorrectly claiming later, after he’d reviewed his materials in connection with the preparation of the poster, which precise photo he’d used). And it’s not as if AP doesn’t have its own problems with credibility that it should make every effort to avoid.

And, again, as I wrote previously over at Remix America: Fairey and AP’s counter-accusations of illegitimate conduct are interesting but really irrelevant to the question of fair use in connection with the Obama Hope poster. So is the possibility that Garcia is lying about being angry at Fairey when Garcia first realized that the source of the poster was his photo. Of course, Garcia’s failure to realize this fact until he was told, even though he was very familiar with the poster, may be relevant — if the photographer didn’t realize the source was his photo, isn’t that some evidence the poster so thoroughly transformed the photo it stands on its own as a creative work?

But, more to the point of this post: if Garcia didn’t realize in January the photo was the source of the poster, isn’t it credible that Fairey didn’t either? AP gained ground this week in outing a lie; now it may be trying to go to that tactic too often.

All of these events are not particularly shocking to anyone who’s litigated for a living. Whether or not Garcia considered a lawsuit when he first realized his photograph was the source of the photo, whether or not Fairey used another photo other than the one most people had concluded he’d used, and whether or not AP is taking ridiculous positions in copyright cases are all matters that do not really bear on whether or not Fairey’s poster constitutes fair use of the photograph Garcia took (and in which Garcia and AP each claim, in opposition to one another, ownership of the copyright).

But Fairey sure didn’t help himself by lying. Nor did Garcia if it turns out he lied too. As much as a lie doesn’t change the legal question at issue in a case, there’s no denying the fact that someone’s credibility affects any court’s willingness to find in their favor.

As a lawyer, you try to tell someone never to lie. Sometimes they think you’re just “supposed to be” telling him that, and that a nod-nod, wink-wink accompanies the advice. It doesn’t.

I’ve said it before — one of the best ways to defeat an adversary in litigation is to use his own words against him. Garcia now seems to think there’s a principle he has to defend in arguing that Fairey’s poster infringed his copyright in his photograph. AP also thinks Fairey’s work was an infringement but that it owns the copyright in the photograph on the grounds that it was a “work for hire.” Be that as it may, if Garcia thinks Fairey’s work is sufficiently transformative that it stands on its own as an original work, that would be pretty harmful to his and AP’s arguments, wouldn’t it?

Well, for a long time Garcia himself didn’t realize Fairey’s poster might’ve been made from his photograph. As Scene on the Road reported last January, Garcia, after learning that many thought his photo was the original source said, “I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture.” (emphasis added)

Moreover, he said he wasn’t interested in a lawsuit because he understood that artists create by remixing the “things” around them:

[Garcia] was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. “I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.”

So let’s see: Garcia didn’t recognize his own photo was the source of Fairey’s work even after regularly seeing and photographing Fairey’s poster. In fact, it took someone else to point out that Garcia’s work might have been the source. And Garcia himself thinks Fairey’s poster is “a really cool piece of work” and knows “artists” work by doing what Fairey allegedly did with his photo. I don’t know how better to identify and define a work that stands on its own as an original piece of art.

But later, in an interview with NPR’s Terry Gross at the end of February, Garcia seemed to be singing a different tune, saying that Fairey had taken something “that didn’t belong to him”:

Initially when I found out, I was disappointed in the fact that, you know, someone had – was able to go onto the Internet and take something that doesn’t belong to them and then use it. I think that that part of this whole story is crucial for people to understand that simply because it’s on the Internet doesn’t mean it’s free for the taking, and just because you can take it, doesn’t mean it belongs to you.

So which was it Manny — your first take that what Fairey did was “cool,” that you’d like to have a “signed litho,” and that Fairey had merely done what artists do in taking and reworking the photo, or your second take that he had taken something that didn’t belong to him and used it? And why was it you didn’t recognize the poster was taken from your photo?