Thursday, February 12, 2009

Lemley law firm plays litigation hardball with AP over Fairey Obama Hope poster

Mark Lemley's new law firm, Durie Tangri Lemley Roberts & Kent, has wasted no time in taking a whack at Associated Press (AP), in filing a declaratory judgment action in the Shepard Fairey matter involving the Obama Hope poster. IPBiz had earlier suggested that the parties might resolve the issue, but Lemley's firm is playing litigation hardball.

The press release of Feb. 9 notes:

The Fair Use Project at Stanford Law School’s Center for Internet and Society and San Francisco-based Durie Tangri Lemley Roberts & Kent LLP filed a lawsuit today against the Associated Press (AP) on behalf of Shepard Fairey and his production company Obey Giant Art, Inc. in connection with the series of iconic works Fairey created to support the candidacy of President Barack Obama.


“There should be no doubt about the legality of Fairey's work,” said Anthony Falzone, executive director of the Fair Use Project and lecturer in law at Stanford Law School, who is leading Fairey’s legal team. “He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.”

IPBiz doubts seriously the hyperbole present in "immeasurably more valuable."

LBE recalls a blast from the past. There was a scientific paper written by an employee of company X in the area of catalysis disclosing a "volcano plot." The paper was submitted to a journal and the employee signed a standard copyright release form from the journal. The paper was published in the journal. Company X later did an advertising campaign featuring cartoonish images of various scientists and their work to emphasize the benefits of the company to society. The details of the work were unimportant in the advertising campaign. A cartoonish version of the volcano plot appeared in an advertisement related to the one employee. The journal asserted copyright infringement. Query: was "fair use" a valid defense? The literal volcano plot was transformed into a cartoon, and the company was using the cartoon to promote the company, sort of like "Obama Hope" being used to promote Obama.

***p2pnet observes:

Interestingly, the photographer, Mannie Garcia, says that he and not AP owns the copyright in the photo and he has no problem with Fairey’ creation.

“I feel very proud that I made the photograph,” Garcia said. “I never would have imagined that it became what it is, and it’s pretty cool. The AP is being very aggressive with Fairey, and I don’t want to be a part of that. My last conversation with the AP was that I own the copyright, and that’s what I’m maintaining.”

Mr Fairey is a very lucky man to have some heavy hitting legal talent behind this claim, including Anthony Falzone of the Stanford Law School Center for Internet and Society and Mark Lemley, renowned Stanford Professor and litigator of important cases.

and cites to a NYT article by Randy Kennedy which includes the text:

After Mr. Obama’s victory, speculation increased about which picture had served as the basis for Mr. Fairey’s posters. In interviews the artist said that it was one he had found on the Internet. Bloggers, including the Manhattan gallery owner James Danziger, pursued several leads until, according to the lawsuit, Tom Gralish, a Pulitzer Prize-winning photographer for The Philadelphia Inquirer, helped track down a photo by Mr. Garcia that showed Mr. Obama sitting beside the actor George Clooney at a 2006 event about Darfur at the National Press Club.

Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.

“I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”

He added, “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.”

***Comment to the IAM blog on 12 Feb 09-->

S.1145 was stopped when Arlen Specter would not sign on, because of issues with apportionment. The position of the USPTO Director had nothing to do with it.

The complaints by the IT industry about bad patents and litigation recall Emerson's aphorism:
"The louder he talked of his honor, the faster we counted our spoons."


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