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.

Yes, Kevin, empathy is part of judging well, and Oliver Wendell Holmes thought so too.

Kevin O’Brien of the Plain Dealer expresses the view of many who mock President Obama’s desire that his Supreme Court nominee have “empathy”:

I have scoured my pocket copy of the Constitution. Couldn’t find a single reference to “empathy,” though. I tried searching an online version, too, but when I typed “empathy” in the search window, the only answer I got back was, “Did you misspell something?”

I looked up the oath of office that Souter’s successor will take. I don’t see “empathy” there, either, . . . 

O’Brien and his ilk have a stunted view of what it means to be a judge. Applying the law is not like doing algebra; instead, it is far more often (at least in cases so contested they get to the Supreme Court) a matter of making difficult judgments that involve weighing values and consequences in the real world. It hardly is ridiculous to consider “empathy” a valuable quality in making these judgments. One need not look far into the past to see a case where an inability to empathize with what Congress plainly intended led to a ridiculous (and soon overturned) outcome.

But you need not take my word for it.  Oliver Wendell Holmes, Jr., Supreme Court justice and one of the most influential intellects in U.S. legal history, made clear in The Path of the Law that it is a fallacy to think judges can apply only logic to the law and that a keen sense of the social impact of one’s decisions is fundamental to sound judging (emphasis added):

The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. . . . The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. . . .

This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”

. . . There is a concealed, half conscious battle on the question of legislative policy, and if anyone thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus [always, everywhere, and for everything]. . . .

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. . . . I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.

Wind of Change: Obama implementing offshore wind projects

From Remix America, President Barack Obama announces the first U.S. program to authorize offshore projects to generate electricity from wind and ocean currents:

Shepard Fairey, AP, and Dirty Hands

While here at Geniocity today I’m wishing my family had our own backyard wind turbine, Remix America asked me to weigh in as a guest blogger on the latest from the copyright and fair use dispute between Shepard Fairey and AP.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”

I think we should shoot puppies!

There — that headline should ensure I never can be confirmed for federal office.

Dawn Johnsen, a law professor at the University of Indiana, is President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, which ” provides authoritative legal advice to the President and all the Executive Branch agencies.”  It’s the office that produced the “torture memos,” those shockingly ill-reasoned legal fig-leafs for the Bush administration’s policies regarding the treatment of “detainees in the War on Terror.” Ms. Johnsen was an “unsparing critic” of those memos.  As a result, Senate Republicans are threatening to filibuster her nomination.  But that’s not the reason they are expressing.  What is their pretext?  Twenty years ago in a footnote of a brief she wrote in a lawsuit in which she represented the National Abortion Rights Action League, she wrote that “forcing a woman to bear a child when she had no desire to do so was ‘disturbingly suggestive of involuntary servitude.’” Thus, the Republicans threatening filibuster say, she has “equated abortion with slavery” and is therefore unqualified to fill those posts once occupied by John Yoo and Jay Bybee (currently a tenured law professor and a federal court of appeals judge, respectively), who purported to provide legal justification for the waterboarding and beatings of U.S. prisoners.  (The torture, of course, ensured that we can never bring the terrorists subject to it to justice since no U.S. court would ever consider the evidence obtained by torture reliable enough to convict those terrorists.)

The Republicans are also threatening to do all they can to block the nomination of Harold Koh to be legal counsel to the State Department.  Koh is the dean of Yale Law School.  Why is he unqualified to fill the job he’s nominated for?  Because, purportedly, he thinks “Sharia law could apply to disputes in U.S. courts.” This stuff is actually taken seriously. Even though none of it is true.

I’m flabbergasted.  Effective persuasion and argument require being open to all sorts of ideas, but it also requires constraints — one cannot persuade with unpersuasive arguments.  But whether justifying torture or opposing perfectly reasonable people who happened to oppose the justification of torture, there seems to be a remarkable willingness to rely on the hope that whatever one says, no matter how empty or absurd, will have an impact.  It reminds me of the “Obama pals around with terrorists” line.  Since he had professional connections with Bill Ayers 30 years after Ayers’ days in the Weather Underground, we were supposed to imagine Obama hangs out on his off days with his friends from Al-Qaeda.  I would expect the U.S. Senate could have as much sense as the entire electorate demonstrated last November in rejecting those ridiculous arguments.  So far, it seems, I’m wrong about the Senate.

Is Michael Murphy another Shepard Fairey?

Do you think that if we ever discover the photo from which Michael Murphy derived the image for this “shadow portrait” of Obama in urethane Murphy will be accused of copyright infringement?  I do, but I don’t think it’s infringement.

Now Shepard Fairey sues AP

The AP/Shepard  Fairey showdown continues.  The New York Times reports:

In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of President Obama. . . .

Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia [the photographer] took.

Further complicating the matter is the fact that “Mr. Garcia contends that he, not the Associated Press, owns the copyright for the photo.” Mr. Garcia also states, “‘If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.’”

Mr. Garcia might want to put the “legal stuff away,” but,  as I’ve written,  “the legal stuff” is precisely what Mr. Garcia is talking about when he talks about what  Mr. Fairey did artistically  with the photo and that the effect his artistic transformation of the photo had.  That Fairey so transformed the photo into something that changed the stencil of a generic wire service campaign photo into an iconic image is a huge part of why legally what he did is perfectly legitimate. So, while Mr. Garcia might “not condone people taking things, just because they can, off the Internet,” what Mr. Garcia condones or does not condone is really what is not the “legal stuff.”

Let us regain the understanding that law is to do Justice.

There are many, many changes I’d like to see the Obama administration implement and encourage in the law, and today’s collective effort to comment on our hopes for the new administration in each of our respective areas of expertise will spur me to address many of these specific matters in the coming days and weeks.  But for today, I would like to address a topic particularly dear to my heart: the art of legal interpretation.

Over the last 30 years or so, there has been a relentless drumbeat from the right attacking judges deemed too liberal for being too “activist,” for “making” law, not merely applying it.  The judges we need, it’s been said, are “strict constructionists” who apply the law “as it is written,” not as the particular judge might wish it to be.

This rhetoric has obscured what judging is.  It is not a controversial proposition to state that interpretation of legal language is not merely a matter of applying words to facts.  Words are too ambiguous, and the world is so complex that the legislators who write the words of statutes cannot possibly foresee every possible situation to which the statutes will apply.  Judges, thus, must make judgments.  Judgments require weighing different possible interpretations and different possible implications and different possible intentions.

Worst of all, however, I fear we’ve lost sight of the fact that judges are part of a justice system.  Their efforts to properly interpret and apply the law should always be guided by the effort to achieve justice.

We’ve lost sight of the fact that judges are people whose judment we must trust to do justice.  As Euripides put it, you must “judge a tree from its fruit, not from its leaves.”

The infamous Lily Ledbetter case is a perfect example of what has gone wrong.  As Gail Collins recently summed up the facts of the case:

Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama. How, when she neared retirement, someone slipped her a pay schedule that showed her male colleagues were making much more money than she was. A jury found her employer, the Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetter’s case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your co-workers’ salaries within the first six months on the job.) Until the Supreme Court stepped in, courts generally presumed that the 180-day time limit began the last time an employee got a discriminatory pay check, not the first.

The operative language of the statute provided that “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.”  Interpretation of a statute is typcially described as an effort to determine the intent of the legislature that passed the statute.  Could Congress have intended to outlaw discrimination in employment on the basis of sex and yet have provided that someone who could not have found out about a discriminatory decision until long after it had intitially been made could not recover.  Such an interpretation seems absurd.  Thus, it is no surprise that prior to the Supreme Court’s decision courts had typically held that each new paycheck for an amount less than it would have been in the absence of the discrimination constituted an “alleged unlawful employment practice.”  Thus, the employee could sue for disrimination within 180 days after the most recent pay check that resulted from the discrimination.

These decisions made perfect sense.  As I said, it would be absurd to believe Congress intended people like Lily Ledbetter, who had no knowledge until she neared retirement that her pay was lower than that of her male colleagues merely because she is a woman, should not have an opportunity to sue over that unlawful discrimination.

Yet, “Justice” Alito held that that absurdity was precisely what the statute required the Court to find.  As Justice Ginsburg explained , joined by Justices Stevens, Souter, and Breyer in her dissenting opinion, Alito’s reading was a “cramped” one that flew in the face of what Congress plainly had intended:

[U]nder the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 (“The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate … discriminatory practices and devices … .” (internal quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975) (“It is … the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.”).

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. See . . . 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) (“A spate of Court decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]” culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

Congress did fix the Court’s wrong, and on January 29 of this year President Obama signed into law the Lilly Ledbetter Fair Pay Act.  But it should never have gotten to that point.  Judges should judge, should bear the fruit of justice.  To say so is not to argue that judges should ignore what the law says.  But it is to say that judges should be open to what the law does as well, and that what the law ultimately is supposed to do is justice.

Thus, I would like the Obama administration to appoint judges whose judgement we can respect and trust, and to push hard to re-educate the public about what law and justice are — to, in other words, begin to redress the cultural tide of the last 30 years that has learned to fear critical judgment and to ignore justice.

The fight is on: AP sues Shepard Fairey.

Brian Ledbetter has the news and a comprehensive set of links to various views on a dispute I’d love to see resolved in a court (even the Supreme Court): AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its background, and Obama’s suit jacket and tie to create the poster that became an iconic symbol of the presidential campaign.  I hope Fairey sticks to his guns and fights this out without settling.  I think his poster so profoundly transforms the impact of the image from the photograph that his poster is not an infringement. And AP has been known to assert blatantly silly infringement claims.  Of course, not everybody feels the way I do.  So I’d very much like to see the matter decided, and I suspect Fairey, unlike many of the victims of copyright overclaiming, has the resources to take the case to trial and through appeal.

ADDENDUM: I am not alone in my conviction regarding the tranformative way Fairey’s poster alters the AP photograph.  Submitted to a Candid World Writes:

Part of the law that’s grown up around these simple factors is the doctrine of “transformative” use, whereby a copyrighted work appropriated but utterly transformed in meaning and substance provides the original “artist” with no valid copyright claim. Oddly, to satisfy this doctrine, artistic transformation of an artistic work may not be enough, even if the effect of the transformation is to invert the work’s meaning.  The law requires more than a different perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).¹ But Fairey’s case is a significantly greater reinvention: here, Fairey took an image intended for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obama’s historic candidacy and unique promise. In the process of creatively altering the image from the purely representational to the artistically abstracted, he added meaning and value, and he crossed expressive genres in the process, depriving the AP of any legitimate claim of lost revenue. This may just be over the border of “fair use,” but fair use it is. The AP should back off.

Shepard Fairey, Creator of Iconic Obama Image, Speaks About His Art

When does appropriation serve creativity? Quite often, in fact.

A commenter to yesterday’s post on Shepard Fairey’s Obama poster has suggested that I don’t believe in copyright because I believe that, even though Fairey created his image by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization within the campaign poster might well be sufficiently transformative to make his work non-infringing fair use.  In fact, I’d go so far as to say I genuinely believe Fairey’s image is a creative work in its own right even though it derives from another work.

In that regard, it’s worth noting that Henry McKervey and Declan Long, in “Makers and Takers: Art and the Appropriation of Ideas, write::

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon’s 24 Hour Psycho, for instance, there is in one sense very little of the artist’s ‘own’ work (Hitchcock’s classic thriller being merely re-played at a radically slowed-down pace) yet Gordon’s intervention makes for a powerful, transformative artistic statement. The question of “knowing originality when you see it” is almost beside the point in cases such as this: artists’ strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in copyright.  It means, rather, that I believe that copyright should serve the only purpose it constitutionally is meant to serve: increased invention and creativity.

And did anyone notice that the John Williams composition played at the inauguration, “Air and Simple Gifts,” borrowed heavily from Aaron Copland’s Appalachian Spring, which itself appropriated a Shaker hymn?

Copying or transforming?

Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.

I dont know how to tell you all just how crazy this life feels

From MSNBC:

John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to Jackson Browne. The singer/songwriter sued McCain in August after the Republican candidate for the highest office in the land used his song, “Running on Empty,” in a campaign commercial that targeted Obama’s energy plan. . . .

McCain, of course, is arguing that his use of the song was fair use, not copyright infringement (hyperlinks added):

The campaign’s fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that’s an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennon’s “Imagine” in a film); and the effect of the use of the song (McCain says that rather than damage the song’s commercial potential, his use “will likely increase the popularity of this thirty year-old song”).

In some ways, the case is reminiscent of Master Card v. Nader 2000 Campaign Committee, in which the court dismissed Mastercard’s lawsuit against Ralph Nader’s 2000 Presidential Campaign Committee. Mastercard’s lawsuit alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard’s “priceless moments” television ads infringed on Mastercard’s copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a “transformative” work. Whether it “comments” on the original is the issue in question. MasterCard’s message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be “purchased” or are “priceless.” Hence, “there are some things that money can’t buy.”

This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card–”for everything else, there’s MasterCard.” Ralph Nader’s Political Ad attempts to show various ways different Presidential candidates can be bought in the “big-money arena of Presidential politics” and contrasts the “priceless” truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, “which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks.” This commentary “may reasonably be perceived.” The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader’s Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative.

William Patry, Google’s Senior Copyright Counsel, opines on typically futile efforts to use copyright to quell political speech here. There is a long history of this type of thing, as I’ve mentioned here and as you can see in the videos below, none of which was successfully blocked by the owners of the copyrighted works being used:

Just because most people like it doesn’t mean you have to

I asked last night what it is that makes Barack Obama and not John McCain an “elitist,” and what I’ve figured out is that it’s a stupid question that, like the ad hominem fallacy, tries to avoid the issues we really need to think about.  From Butterflies and Wheels:

But ‘elitists’ don’t have a monopoly on hidden agendas and invidious motives. One-upmanship, jockeying for position, ressentiment, self-righteousness, the thrills of disapproval and condescension and getting it right while others get it wrong – those are all equal-opportunity pleasures. Anti-elitists get their own little frissons from saying You’re a snob and I’m not. In fact, of course, it’s impossible to think anything is right as opposed to wrong, that any attitude, stance, commitment, political view, idea is better than any other, without opening the door to approval of self and disapproval of others. Quite, quite impossible. If we’re too afraid of being smug and superior and self-righteous to have any opinions at all, we just become vacuous spineless shapeless nothings, and we can never improve or correct or change anything. What could be a more conservative position than that? No, abdication of judgment is neither possible nor desirable, we have to be clear about that, and just settle down to doing it well instead of badly. Terry Eagleton puts it this way:

“We should, I think, give no comfort to those who in the name of a fashionable anti-élitism would ignore real evidence of cultural deprivation, though we should remember of course that there is no single index of cultural flourishing or decline.”

The elitism epithet works to inhibit judgment because it is so a priori. It assumes, without argument, that to say that any popular book or movie or piece of music or tv show is bad is a thought-crime, because doing so second-guesses majority opinion; it says majority opinion is wrong. Democracy is expanded from the political realm to that of ideas and art, and taken to mean that the popular is automatically good and the good is automatically popular. Put like that it looks insane, but what else does the elitist epithet mean?

Sad to say, if we’re going to think at all, we have to be able to think for ourselves. De Tocqueville pointed out how difficult this can be in a democracy, and he scared the hell out of John Stuart Mill, who pointed out the difficulty and the necessity even more sharply. Both the difficulty and the necessity are still with us.