Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in the photo he shot and that Shepard Fairey used as the source of the image in the Obama Hope poster.

Manny Garcia has dropped all the claims in the lawsuit over whether Shepard Fairey’s Obama Hope poster infringed the copyright in the photo Garcia had taken and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice filed in the case is embedded below.

What this means is that Garcia has given up his claim that he rather than the Associated Press owns the copyright in the photo. The Associated Press claims that it owns the copyright in the photo on the grounds that Garcia shot it as a “work for hire.” The fact that the claims by Garcia and against him have been discontinued by agreement of the parties “with prejudice” means that Garcia has given up any right to re-assert those claims in the future. The agreement constitutes a final, binding determination that the copyright in the photo belongs to the Associated Press.

It does nothing, however, to illuminate the outcome of the claim by the Associated Press that Fairey’s poster infringes the copyright in the photo. But it does illuminate those familiar with the history of copyright know — the enlargement and enforcement of copyright has always been more about protecting the interests of publishers than it has been of promoting artistic creation:

There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers . . .

Blanch v. Koons, transformative appropriation art, and Fairey v. AP

It’s well worth revisiting the decision by the United States Court of Appeals for the 2d Circuit (the Circuit in which the court hearing Shepard Fairey’s lawsuit against AP and Manny Garcia is pending) in Blanch v. Koons, 467 F.3d 244 (2006). Andrea Blanch, “an accomplished professional fashion and portrait photographer,” unsuccessfully sued Jeff Koons for copyright infringement of a photograph she had shot entitled “‘Silk Sandals by Gucci’ (‘Silk Sandals’), [which] depicts a woman’s lower legs and feet, adorned with bronze nail polish and glittery Gucci sandals, resting on a man’s lap in what appears to be a first-class airplane cabin. The legs and feet are shot at close range and dominate the photograph. Allure published ‘Silk Sandals’as part of a six-page feature on metallic cosmetics entitled ‘Gilt Trip.’” The court explained how Koons appropriated and used ‘Silk Sandals’ as follows:

Koons scanned the image of “Silk Sandals” into his computer and incorporated a version of the scanned image into [his painting entitled] “Niagara.” He included in the painting [pictured at left] only the legs and feet from the photograph, discarding the background of the airplane cabin and the man’s lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of “Niagara” rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph’s coloring. The legs from “Silk Sandals” are second from the left among the four pairs of legs that form the focal images of “Niagara.” Koons did not seek permission from Blanch or anyone else before using the image

Koons was paid $126,877 for “Niagra.” Allure had paid Blanch $750 for “Silk Sandals.” In addressing whether Koons’ appropriation of “Silk Sandals” was fair use or a copyright infringement, the court highlighted the fact that answering this question requires balancing the conflicting interests in protecting the “intellectual property” rights of creators and protecting the freedom of expression, including referencing the works of others in new works of creation:

Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them — or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.

At the heart of the fair use analysis is the nature of the allegedly infringing work. As the 2d Circuit notes, it considers with respect to this factor whether the work is “transformative” — that is, whether it adds something new to the original work so that it stands on its own as an original work of creation. The court thus quoted the Supreme Court’s decision in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994):

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message …, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such transformative works thus lie at the heart of the fair use doctrine’s guarantee of breathing space …. Campbell, 510 U.S. at 579, 114 S.Ct. 1164(citations omitted).

The court’s conclusion that “Niagra” is genuinely transformative in its use of “Silk Stockings” is worth quoting almost in its entirety (citations omitted) because it is the very heart of the decision to find in favor of Koons:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at ¶ 4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] … to get … more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. 

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative. 

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

The court also noted that in Campbell the Supreme Court had rejected the notion that a”the commercial nature of [a] use could by itself be a dispositive consideration. The Campbell opinion observes that ‘nearly all of the illustrative uses listed in the preamble paragraph of § 107 [setting forth the fair use test], including news reporting, comment, criticism, teaching, scholarship, and research … “are generally conducted for profit.”‘” Thus, the “‘more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’” (Quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir.2004)). Moreover, since “Niagra” is “’substantially transformative, the significance of other factors, [including] commercialism, are of [less significance],’ [w]e therefore ‘discount[] the secondary commercial nature of the use.’” (citations omitted.)

I by no means would suggest that Blanch is so obviously on point in all respects that it requires the court hearing the Fairey v. AP case to find in favor of Fairey. But it certainly is quite meaningful in that respect. If only because of the tremendous resonance the Obama Hope poster had in the course of the 2008 presidential, a resonance that would have been inconceivable had the poster substituted Garcia’s photo for Fairey’s reworking of that source material, it seems at the very least quite arguable that Fairey’s reworking of the photo meets the 2d Circuit’s test of a transformative work — one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

Blanch also makes clear that it is of no moment that, Dan Heller’s assertions notwithstanding, Fairey’s work (1) was intended to convey a message, (2) was intended to “make a buck.”

It also makes plain that Heller is just plain misunderstanding the law when he states that “you cannot misappropriate someone’s likeness or their property without their consent.” (Emphasis in Heller’s original.) Koons neither sought nor received Blanch’s consent to use her photograph. Koons plainly made more than a buck in the transaction. And the fact that Koons’ message might have been a commentary on the world of “mass communication” does not seem any more worthy of fair use analysis even if we do assume, as does Heller, that Fairey’s poster was “merely” a piece of political advocacy. Finally, there is no applicable “right of publicity” that Fairey violated in appropriating Obama’s image (nor does the Associated Press or its photographer, Manny Garcia, have any right to assert any right of publicity Obama hypothetically could enjoy on his behalf).

ADDENDUM: J O’Shea on Shepard Fairey and the Art of Appropriation.

Why Shepard Fairey’s deceit should not stop the court from finding that the Obama Hope poster did not infringe the copyright in the photo it was based on.

There has been a lot of discussion (here, for example) about whether Shepard Fairey’s deceit in the course of discovery in his lawsuit with the Associated Press and photographer Manny Garcia constitutes “bad faith” that will tilt the fair use analysis against him and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo that Garcia shot.

I don’t think so, and the discussion of the issue of an infringer’s bad faith in NXVIM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004) helps illuminate why. The Second Circuit Court of Appeals (whose decisions are binding on the court deciding Fairey v. AP) in NXVIM affirmed the lower court’s denial of a preliminary injunction on the grounds that NXVIM, the producer of a “business training seminar,” had been unable to show it would likely prevail on its claim that the defendants had infringed NXVIM’s copyright in a training manual for one of their online courses. The defendants had posted to the internet quotations from the manual in support of their analyses and criticisms of NXVIM’s activities. NXVIM argued to the Second Circuit that the lower court had inadequately considered the defendants’ “bad faith” in obtaining the manual from a former participant in the seminar rather than by purchasing it, as anyone could do.

The majority did in fact state that “it was error for the district court not to have fully and explicitly considered” the defendant’s bad faith, which presumably included inducing the former course participant to breach a confidentiality agreement by disclosing the course materials to them. The court did not reverse the district court’s decision, however, because the bad faith did not alter the conclusions that the use was a non-infringing one. In short, according to the majority, a defendant’s bad faith is not “dispositive” on the fair use question and consideration of all of the factors — and in particular the first, the “purpose and character” of the defendants’ use of the copyrighted material — was so great: “the first factor still favors defendants in light of the transformative nature of the secondary use.”

It is difficult to get a handle on how much weight, if any, the majority would therefore give to bad faith in the fair use analysis. It would have some weight, the majority seems to indicate, but not that much. Judge Dennis Jacobs‘ concurring decision is even more illuminating, however, and gives good reason to believe that the true weight to be given bad faith as a factor independent of the rest of the fair use analysis should be zero. After reviewing the rather recent history of the role of a defendant’s bad faith in fair use analysis, Judge Jacobs states rather bluntly:

I think that the secondary user’s good or bad faith in gaining access to the original copyrighted material ought to have no bearing on the availability of a fair use defense. Fair use defines the outer boundary of copyright protection, and that perimeter should be drawn by reference to the central objectives of copyright. Copyright itself would be distorted if its contours were made to depend on the morality and good behavior of secondary users.

To support his reasoning, Judge Jacobs pointed out first that the use of bad faith in fair use analysis had its origins in the Supreme Court’s 1985 decision in Harper & Row v. Nation Enterprises, in which the Court held that the Nation magazine had infringed Harper & Row’s copyright in the memoirs of former President Gerald Ford when it published a chapter from the memoir in the magazine in advance of the publication of the memoir. As Judge Jacobs makes clear in NXVIM, the fact the Nation obtained the manuscript illicitly tipped what was generally considered a close case in favor of the publisher.

One might question in retrospect precisely how close a case Harper & Row really was. The chapter the Nation published was the chapter Ford wrote about his pardon of the disgraced Richard Nixon. It seems quite likely that many people who would have purchased the book for that chapter alone (it was clearly the most noteworthy event of Ford’s political career) would have purchased the magazine and therefore not bothered with the book. In other words, the infringement very directly robbed the copyright holder of a significant amount of value that the copyright holder had every reasonable expectation it would derive from the sale of the book.

But Judge Jacobs points out too that in its post-Harper & Row decision in Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court backed off the suggestion that bad faith was part of the fair use analysis, stating that the core of the fair use analysis must remain on (1) the transformative purpose of the appropriating work and (2) whether the appropriating market “usurps a market” that belongs to the copyright holder:

Campbell’s footnoted discussion questioning the pertinence of good faith reinforces the entire thrust of the decision, which requires that fair use be assessed primarily in light of whether the secondary work quotes the original with a transformative purpose and whether it usurps a market that properly belongs to the original author — issues as to which the defendant’s good faith in accessing the plaintiff’s original work does not matter.

In other words, according to Judge Dennis, “the fair use defense exists to encourage the creation of original works that do not ’supersede the objects’ — and thus the market value — of the original. Nor is fair use a doctrine a privilege we confer on people we like. It is not ‘earned by good works and clean morals; it is a right — codified in § 107 and recognized since shortly after the Statute of Anne — that is ‘necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of science and the useful arts….”‘ Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (quoting U.S. Const., art. I, § 8, cl. 8).”

Thus, while someone’s bad acts may subject him to criminal or civil prosecution on a number of grounds, they should not bear on the fair use analysis:

A person who acquires the original work by crooked or unsavory means may expose himself to all sorts of civil claims and criminal charges; but the question of fair use itself should be decided on the basis of the transformative character and commercial effects of the secondary use. If the use satisfies the criteria of § 107 [of the Copyright Act], it is fair because it advances the utilitarian goals of copyright.

Shepard Fairey’s deceit in the course of discovery in the lawsuit has been uncovered, and it can be punished through civil sanctions or even criminal prosecution. But it should not affect the court’s determination of the artistic legitimacy of the Obama Hope poster. “[C]opyright is not about virtue; it is about the encouragement of creative output, including the output of transformative quotation. Its goals are not advanced if bad faith can defeat a fair use defense.” Nor is “good faith” a factor in fair use determinations. Willing as you may be to pay a license fee, if the copyright holder refuses to sell you a license and your subsequent unauthorized use is infringing, your willingness to pay is of no credit to you in the fair use analysis.

In short, as Judge Dennis so cogently puts it, fair use is central to the copyright regime; it is not a tolerated exception to the copyright holder’s domain:

Fair use is not a permitted infringement; it lies wholly outside the domain protected by the author’s copyright.

Fairey’s Obama Hope poster copied nothing from Garcia’s photo that could be copyrighted.

I’ve made clear my view that Shepard Fairey’s Obama Hope poster does not infringe the copyright in the photograph that Fairey used as the source of the image because it is so “transformative” of the image — imagine the impact a poster of the original photograph with the word “Hope” emblazoned on it might have had and then consider the question. Remember, too, that Manny Garcia, who took the photograph, did not recognize that his photo was the source of the poster’s image for months after the poster rose to prominence; in fact, someone else made the identification.

I’ve also, however, contended that the poster is not infringing because it did not appropriate elements of the photograph that can be considered sufficiently original to even be protected by copyright. And now I’ve come across a case that applies precisely this thinking to a very similar dispute.

In Reece v. Island Treasures Art Gallery, Inc., 468 F. Supp. 2d 1197 (D. Hawaii 2006), the court ruled that a stained glass artwork entitled Nohe did not infringe the copyright in a photograph entitled “Makanani” despite the fact both works depict, from the same angle, a woman kneeling on Oahu’s Kailua beach performing an ‘ike motion from the hula noho (sitting) position. The two images are pictured above.

The court recognized that some parts of the photograph could be copyrighted, but only those that are the result of the photographer’s creative decision-making:

“[T]he creative decisions involved in producing a photograph may render it sufficiently original to be copyrightable and [courts] have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectible elements of a photographer’s work.” Los Angeles News Serv. v. Tullo, 973 F.2d 791, 794 (9th Cir.1992) (citation and quotation signals omitted). The court concludes, for the purposes of the instant motion, that [the] photograph is copyrightable, although elements derived from the public domain or otherwise unprotected by copyright cannot serve as the basis of [an infringement] claim.

Another way of putting it is that “[t]he protectable elements of a photograph generally include lighting, selection of film and camera, angle of photograph, and determination of the precise time when the photograph is to be taken.” (citation omitted). But the stained glass window of the dancer in the identical position did not appropriate a sufficient amount of the original elements of the photograph because the stained glass image has none of the detail of the person or of the background of the photographer and the sepia tone of the photograph is so very different than the “”vibrant colors” of the stained glass:

Although the position of the dancer in the ‘ike motion is common to both artworks and both are set on Kailua beach, they cannot be described as substantially or virtually identical. The appearance of the dancers is different; notably, the absence of detail in the stained glass. The dancer represented in [the stained glass image] has no facial features, hand details, or muscular differentiation, but simply shows the outline of the body. The mountains and ocean dominate the upper half of the stained glass, but not the photograph. The dancers’ hairstyles are notably different lengths and shapes. Finally, the sepia tone of the photograph is markedly contrasted by the vibrant colors of the stained glass.

One can easily see, I think, how this reasoning is applicable to the comparison between Garcia’s photograph and Fairey’s poster. While the position of Obama’s face is virtually identical in both, Fairey’s image has none of the detail the photograph shows from the face, Obama’s suit or the background shown in the photograph. In fact, the poster entirely changes these details by transforming them into a stylized combination of red, white, and blue. Moreover, it is plain the colors of the photograph are in marked contrast to the colors of the poster.

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.“

Painting people whose images are protected — Alabama football, Tiger Woods, and Obama

The Tuscaloosa News reports that a decision is expected soon in the University of Alabama’s lawsuit against sports artist Daniel Moore. As the newspaper explains, the university “sued Moore for trademark violations in March 2005, alleging he painted scenes of Crimson Tide football games [such as the one at right] without permission from the university and reissued previously licensed prints without paying royalties. The university is seeking back pay for more than 20 paintings and wants Moore to license any future paintings.”

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.

Make your point and move on; Fairey lied, but AP won’t establish he always does.

As I’ve said over and over again, lying messes you up. It robs you of credibility, a problem which inevitably is going to infect the decision maker’s view of the merits of your case. But when facing a liar, you can get carried away by his lies and take your eye off your own case. AP seems prone to this danger in its case against Shepard Fairey. Having established Fairey lied about knowing which photo he used in creating the Obama Hope poster, AP is now contending that Fairey lied when he claimed in January 2009 that he didn’t recall which photo he used.

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.

Don’t lie, even if you think it doesn’t matter. Fairey, Garcia, and AP.

Now we’ve got 2 liars in the Shepard Fairey/Manny Garcia/AP lawsuit. As I mentioned the other day, there’s reason to believe Garcia is at least being highly misleading regarding his initial reaction to realizing that Shepard Fairey’s Obama Hope poster was based on his photograph. And now Fairey admits that he lied in contending that the image everyone knows he used was not the image he used. And, of course, AP is not exactly the most reliable source for legal positions on copyright and fair use.

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.

Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some other explanation?

As much as law students and law professors want legal questions to resolve into nice, neat abstract questions, they seldom do.

Legal questions are only answered definitively by courts when those questions are necessary to resolve lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some nice, easy-to-follow rule so we can definitely predict what we can and can’t do)?

One problem — the most important one for lawyers — is figuring out what happened. It’s amazing how people take the facts for granted, as if we have God’s videotape to play to a jury or something. Instead, we have conflicting evidence. And the court has to decide what it all means.

So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?

Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, 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.’”

In paragraph 45 of his Answer to Fairey’s Counterclaim, filed on September 8 in the lawsuit between himself, Fairey, and the Associated Press, Garcia “denies he stated in interviews that he was not ‘angry with Fairey or interested in joining any lawsuits.’”

Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if that’s the case, then is he calling Gralish a liar?

Welcome to the law.

ADDENDUM: Tom Gralish’s series of posts chronicling his efforts to identify the photograph that served as the source of Fairey’s Obama Hope poster are here. The posts re-enforce something I have suggested before: Garcia’s photograph just isn’t that original. Since the nature of the copyrighted work is relevant to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is less creative, the generic nature of the photo militates in favor of Fairey. But I still think Fairey’s work is so obviously “transformative” that it constitutes fair use. Why? Because it had a resonance in the nation that none of the photos Gralish examined would have had on their own. If Fairey’s ability to confer that kind of power upon the source photo isn’t transformative, I ‘m not sure I know what is. And, incidentally, most of my previous posts on the case are here.

Manny Garcia’s own words betray the weakness of his case.

Manny Garcia, who actually shot the photo at issue in the lawsuit between Shepard Fairey and the Associated Press — the photo that allegedly was the source of Shepard Fairey’s Obama Hope poster — is intervening in that lawsuit on the grounds that he, not AP, owns the copyright in the photo. On page 5 of the brief in support of his motion he makes clear he is arguing too that Fairey infringed his alleged copyright in the photo he shot.

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?