Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

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.

Andy Warhol was sued, but the cases were never decided.

After posting Campbell Soup’s letter to Andy Warhol expressing admiration for his Campbell Soup paintings 2 weeks ago, I’ve been asked by several people whether Warhol was ever sued for his appropriations of copyrighted photographs. He was indeed, though all of the cases settled out of court with Warhol “paying” by giving the plaintiffs pieces he had created. They therefore provide no guidance how courts would rule on those claims. Here’s the account from Patricia Search’s article, Electronic Art and the Law: Intellectual Property Rights in Cyberspace, Leonardo, Vol. 32, No. 3, 191, 193 (June 1999):

“Andy Warhol received legal complaints from photogra-phers Charles Moore, Fred Ward, and PatriciaCaulfield. Warhol used three of Charles Moore’s photographs of the Birmingham race riots in a 1964 painting called Race Riot. He also used a Life magazine cover photo of Jacqueline Kennedy Onassis, taken by Fred Ward after President Kennedy’s assassination, in several prints and paintings. Patricia Caulfield sued Warhol when she discovered that he had used one of her photographs in his1964 series of paintings and prints called Flowers.

“All of these cases were settled out of court. The photographers and their agents or attorneys received works of art from . . . Warhol . . . . Caulfield received a promise of royalties on future uses of her image by Warhol. Unfortunately, because these cases were settled out of court,no legal precedents were set concerning artistic appropriation of copyrighted material.”

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.

Judge refuses to sanction Shepard Fairey.

The common wisdom seems to be that the judge in Shepard Fairey’s lawsuit with AP and Manny Garcia over the use Fairey made of Garcia’s photo in creating the Obama Hope poster would be sanctioned for having lied during the course of the lawsuit about knowing he used the photo that was identified in February 2009 as his source. The sanctions could range from monetary “fines” all the way up to ruling against Fairey without ever having determined the legitimacy of his legal claims. But earlier this week the judge, Alvin K. Hellerstein, issued an order in which he denied AP’s pending motion for sanctions. The order states that AP has engaged in an “endless quest” for information from Fairey in an effort to pin him down. At the same time, the judge acknowledged that Fairey’s carefully phrased answers to questions and his earlier dishonesty would be left to be judged for themselves during trial: ”The Associated Press, in its effort to pin down Fairey, has engaged in an endless quest for discovery. If there has been willfulness, it will be proved at trial through Fairey’s evasiveness.”

Plagiarizing about Plagiarism

You could write a column entitled “When it comes to songwriting, there’s a fine line between inspiration and plagiarism” any day of the week, and I believe I have, though I only stole the idea from the KLF (or Negativland or Bob Dylan, or Jim Jarmusch or Jonathan Lethem or David Shields or  David Markson or Shepard Fairey or . . . )

Cuckoo Kookabura Continues

The travesty continues — first, there was the court decision in Australia finding Men at Work liable for copyright infringement for appropriating a riff from the Australian chestnut Kookaburra Sits in the Old Gum Tree in their 1981 #1 hit Down Under. Now the judge has ordered the group to pay 5 percent of the royalties it earned from the song. I suppose it’s better than the 60% the publishing company that owns the copyright sought. Kookaburra, incidentally, was composed over 70 years ago, and its composer died 22 years ago. It doesn’t appear, in short, that the copyright here is serving to motivate creation; rather, it’s serving as a disincentive – Down Under stood on its own as an Australian anthem. As Wikipedia reports:

The song is a perennial favourite on Australian radio and television, and topped the charts in the U.S. and U.K. simultaneously in early 1983. It was later used as a theme song by the crew of Australia II in their successful bid to win the America’s Cup in 1983.[citation needed] Men at Work played this song in the closing ceremony of the 2000 Sydney Olympics, alongside other Australian artists. It was also often played after Australian athletes had received medals during competition, as they walked around the venue on a parade lap after the medal ceremony.

In May 2001, Australasian Performing Rights Association (APRA) celebrated its 75th anniversary by naming the Best Australian Songs of all time, as decided by a 100 strong industry panel, “Down Under” was ranked as the fourth song on the list.[5]

In October 2006, Triple M had the Essential 2006 Countdown of the most popular songs of all time, voted by the listeners. “Down Under” was the number 3 voted/ranked song.[citation needed]

The song was voted #96 on VH1’s 100 Greatest Songs of the 80s.[when?]

The song has been used as the entrance music for various professional Australian sportsmen, including darts player Simon Whitlock, cruiserweight boxer Danny Green (for his fight against Roy Jones, Jr. on 2 December 2009) and snooker player Neil Robertson.

The song was played extensively during the September 2009 One-Day International cricket series between England and Australia, which Australia took by six matches to one.

Moreover, as I’ve previously noted, the Sydney Morning Herald reported that “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

And to the extent the riff is recognizable it is doing what a quotation does in a piece of art — using a culturally resonant symbol to sound that resonance.

At least Men at Work is going to appeal the decision.

It ain’t over ’til it’s over — Fairey Judge says Obama Hope poster is not fair use, but don’t necessarily believe him.

AP reported last week that in the lawsuit about whether Shepard Fairey’s use of an AP photograph as source material for his Obama Hope poster constituted fair use of the copyrighted photo, the judge, Alvin Hellerstein (with whom I worked 25 years ago), stated in a hearing last week that “I have a feeling … that whether it’s sooner or later, The Associated Press is going to win,”

First, of course, I am convinced as a legal matter that Fairey’s appropriation of the photo constituted fair use. Of course, I’ve been wrong before.

But it is also important to note that, as AP’s story makes clear, Judge Hellerstein made his comment — during a hearing on matters in the case that did not pertain to the legitimacy of Fairey’s fair use claim — to urge that the parties settle the case. Moreover, the judge “said a settlement might be possible if the AP dropped some of its demands that Fairey be punished for copyright infringement and for his actions in the case.”

Judges do all sorts of things to promote settlement. They even make suggestions that one side will win even before both sides have had the chance to present their evidence and make their legal arguments. Judges like settlement. Private agreements to settle cannot be overturned on appeal, and they do not constitute legal precedent that ties the hands of courts making later decisions. And, in fact, the vast majority of civil cases settle (over 85%). In short, I think Judge Hellerstein could have been strongly promoting settlement without having prejudged the case.

But AP also stated that neither side “embraced the judge’s suggestion” that the parties settle and that “AP lawyer Dale Cendali told Hellerstein the news organization was seeking ’substantial damages.’” It appears, in short, that AP doesn’t want to settle because it wants to make an example of Fairey. And I could imagine that Fairey, who began the lawsuit, wants to pursue the case as a matter of principle. In fact, even if he does lose in front of Judge Hellerstein, he has an appeal as of right to the 2d Circuit, which, given that it has extended the right of appropriation further than any other court, might well represent his best shot at victory.

In short, I think the case is far from over, even if many others are reporting otherwise.

Art builds on art, be it Shepard Fairey’s Obama Hope poster or the re-tellings of myths and legends.

I have made clear, at length, my view that Shepard Fairey’s Obama Hope poster is a legitimate, non-infringing fair use of the photo Fairey appropriated as its source material. But I think Fairey himself expresses well in this interview from The Knowledge the basis of that belief, that the very nature of a lot of art (and, I might argue, all art) is to build on and refer to pieces of the culture in which we live and that without the freedom to appropriate pieces of that culture in ways that don’t merely exploit the value the creators of those pieces themselves have built we will diminish our culture. Fairey explains:

“I do think that copyrights and intellectual property are important—it’s important to be able to keep people from making verbatim copies of a particular creation that could somehow hurt the creator. If I spend time conceiving and making a piece of art and somebody else sees that it has market value and replicates it in order to steal part of my market, then that’s not cool. But the way I make art—the way a lot of people make art—is as an extension of language and communication, where references are incredibly important. It’s about making a work that is inspired by something preexisting but changes it to have a new value and meaning that doesn’t in any way take away from the original—and, in fact, might provide the original with a second life or a new audience.”

He goes on to explain, in terms that are very personal to me, the implications of an alternative view, often referred to as a position in favor of “strong” copyright protection”:

“The problem with copyright enforcement is that when the parameters aren’t incredibly well defined, it means big corporations, who have deeper pockets and better lawyers, can bully people. I don’t want to start making enemies in the corporate world, but there are plenty of cases. For example, there is a tradition of certain fairy tales being reinterpreted, and now, all of a sudden, a big corporation that has a mouse on its logo decides it’s going to copyright these fairy tales, which ends the cycle of these things being reinterpreted. What happens with these big entertainment companies is that they start to get a monopoly on the creation of culture. But I think that the more people participate in the creation of culture, the richer the culture becomes. In the case of the Obama poster, I was just exercising my First Amendment rights—and my free speech is exercised visually. People who want to talk or write in order to share an opinion about Obama can do that, but when I want to say what I think about him, I need to make a portrait. And if I can’t make a picture based on a reference because all references are copyrighted, then my only options are to pay a licensing fee—and possibly be turned down because the person licensing the image doesn’t agree with my political viewpoint—or to try to get a personal sitting with Barack Obama to make a portrait of him, which presents its own obstacles. So I don’t think all this is good for free speech.”

This is a personal matter because my sister, Amy Friedman, writer and teacher extordinaire, has for twenty years written on a weekly basis versions of fairy tales, folk tales, and legends from around the world and throughout history, an enormous corpus of work that is syndicated by Universal Press Syndicates under the name Tell me a Story (entire archive available). Needless to say, copyright concerns throughout this decades long endeavor, only one of many in which she engages, have been foremost in her mind, but there has never been any doubt either that her stories, while based on pre-existing creations from as many cultures and as many times as are virtually conceivable, are legitimate art in their own right and, therefore, enjoy their own copyright protection.

Amy’s story is important in another way. Not only would the Disney’s of the world co-opt the subject matter she makes her own, but she also is an artist in the truest sense. She is not a best-selling author. No one I’ve ever known works harder, and working at making a living as a writer, as she always has, is as difficult a task as one would wish upon a sister. She doesn’t depend on her copyrights to make her living — she depends on delivering a product that consumers want, whether they be students or parents who want wonderful audio stories for their kids. People like Mark Halperin, rich best-selling author and conservative pundit, , who bitch about copyright protection don’t know what they’re talking about. They live in an age in which digital information can be remixed and distributed worldwide by anyone with a laptop and an internet connection, an age in which their views of authorship and artistic production are, in a word, outmoded. The real artists are people like Amy, who eke out a living (one whose comfort level she expresses no complaints about).

The Korean War Memorial Postage Stamp Photo Case: I was way wrong! But I still think I was right, and I think the case is bad for art.

Consider me dumbfounded, or just plain dumb. I thought the copyright infringement case brought by the sculptor of the Korean War War Veterans Memorial (above, left) against the U.S. Postal Service for the use of the memorial’s image in a postage stamp (above, right) was an “easy case” — that the stamp constituted fair use of the image of the memorial because, among other things, I thought the image was sufficiently “transformative” of the memorial itself to constitute a creative work in its own right.

But today, in Gaylord v. U.S. (pdf),the U.S. Court of Appeals for the Federal Circuit reversed the lower court’s holding and ruled that the stamp infringed the sculptor’s copyright in the memorial (pdf). Whereas I thought the image on the stamp was transformative because, among other things, I wouldn’t have even known it was an image of a sculpture rather than a stylized image of actual soldiers unless I’d read otherwise, the court held that the purpose and character of the image on the postage stamp and the purpose and character of the sculpture were identical: “to honor veterans of the Korean War.” Slip op. at 9. The court rejected the reasoning I had advanced, reasoning as follows:

Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message.  Slip Op. at 11.

I am stunned, and I find the court’s limitation of of “transformative” work to work that “comments on or criticizes” the work it appropriates without real rationale, but the odds are long the case will end up before the U.S. Supreme Court. It might be a good case for the Supreme Court to weigh in on — the ease and low cost of copying and disseminating images in this day and age makes any and every sort of appropriation art a contentious and wide open field, but I suspect the Supreme Court would prefer to let these issues simmer in the lower courts for some time before it chooses to weigh in on the question. In the mean time, I have to bow in humility to Donn Zaretsky, with whom I engaged in an online debate last summer on this particular case in particular and on the issue of the photographic appropriation of public art in particular. Donn was right, and I was wrong. I suspect, though, that this isn’t the last word we’ll hear on this type of case.

Addendum: The more I think about the decision in Gaylord, the more wrong-headed I believe it is, and the more I think it falls prey to a dangerous proclivity to commercialize every last aspect of our culture, including art. To limit “transformative” uses of copyrighted materials to uses that comment upon or criticize the copyrighted works they appropriate is to eliminate the use of the kind of appropriation as source material that is the very foundation of art. Copyrighted art works become part of the cultural language. A work that has impact in a culture takes on a meaning of its own. That cultural meaning then becomes part of the language of art, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that art needs to use in order to be art. To remove copyrighted works from this language in the absence of payment for their use would substantially damage our culture. By the time a work of art becomes available for the free use of other artists as part of the public domain — the duration of the artist’s life plus 70 years — it no longer will have any resonance worth exploiting.

Moreover, it is, I think, strange that the court in Gaylord reasoned that the photograph of the sculpture was not sufficiently original in its own right to be transformative despite what I referred to above — the fact that one would not likely even spot that the photo was of the the memorial, much less a sculpture — because that character of the photo was merely the product of the fact the photo was shot on a snowy day:

To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude. Slip op. at 11.

This reasoning is strange because, as I have pointed out before, photography itself is protected by copyright as “original” — rather than being rejected as mere transmission of the “facts” it conveys — precisely to the extent it reflects the photographer’s choices regarding the framing of the image, the choice of background and lighting, and the resulting mood:

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (”Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted). Meshwerks v. Toyotoa Motor Sales, Inc. ( 10th Cir. 2008).

I am not sure how one reconciles the idea that photography constitutes original work entitled to copyright protection with the notion that the elements of the art that give it originality — the elements that are the result of the artist’s choice — are merely “nature’s decision” and therefore not an element that make a work sufficiently original to be entitled to stand on its own without paying its way. I also think that the decision is vacuous as an artistic matter.

Finally, the decision plainly has significance with respect to the claim by the Associated Press that Shepard Fairey’s Obama Hope poster infringed Manny Garcia’s photo of then-candidate Obama. I have stated again and again that I think the Hope poster is a non-infringing fair use primarily because of the way it transforms the photo and stands on its own as a creative work. It was many, many months before anyone even identified which photo was Fairey’s source material; even Garcia himself, despite seeing the poster again and again during those months, did not recognize that the poster was derived from his own photo! But there’s no doubt in my mind that the poster does not constitute a comment or criticism of the photo. Under the Federal Circuit’s reasoning, therefore, Fairey’s poster infringes the photo’s copyright. Fortunately, however, the Federal Circuit’s decision is not binding on the United States District Court for the Southern District of New York, where AP v. Fairey is pending, so that court will be left to its own judgment as to the scope of appropriation art will be permitted in this age of digital copying and transmission.

Here’s hoping, on my part, that the court in that case comes to a different decision. Art is a language that draws on and builds from itself. To reduce the language’s components to commodities would be to commercialize one more part of our lives, monetize one of the few things we have left that have not been reduced to the equivalent of cold cash.

Second Addendum: John E. Grant has a very interesting take on the Gaylord decision – he reads the decision as one that focuses on the stamp rather than the photo the stamp consists of:

In reversing the lower court decision, a 2-1 appellate majority ruled that the trial judge was wrong to focus on the transformative aspects of the photograph. Instead, it held that it must analyze the purpose and character of the stamp. The appellate majority then found that the purpose of the stamp was the same as the purpose of the sculpture: to honor Korean War veterans.

It’s an interesting thought, but I’m not sure I entirely buy it. If the photo itself was fair use, then I do not understand why the photographer did not have the right to license the use of that photo to the government for use on the postage stamp. Further, as Grant acknowledges and as I pointed out above, the court reasoned that although the image on the stamp “altered the appearance of the sculpture, . . . the alterations [were attributable] to mother nature, not the photographer and . . .  ’nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right’ to his copyright.” Again, I cannot understand why the very elements that constitute the creative elements of a photograph can in this fair use analysis be passed off as merely “nature’s decisions.”

Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

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.“

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

When is a copy an original?

Behind all the shouting about Shepard Fairey and the Obama Hope poster, there is, as I’ve emphasized again and again, a real failure to contend with our conceptions of creativity and originality. Hollywood, of course, is stuck in a rut of remakes so deep that I’m seeing remakes of films I’ve already seen as an adult. There isn’t much originality there. But then you look at something seemingly so simply as Douglas Gordon’s 24 Hour Psycho (1993), a super slowed-down version of Alfred Hitchcock’s 1960 film Psycho, and you have to wonder whether it isn’t a whole lot more original then the coming remake of A Nightmare on Elm Street. Gordon explains his film as follows:

“24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation… it wasn’t a straightforward case of abduction. The original work is a masterpiece in its own right, and I’ve always loved to watch it. … I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me…”

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?