Anthony Falzone

Prior to joining Pinterest, Tony co-founded CIS’s Fair Use Project, which he led as its Executive Director from 2006 to 2012. In the course of his work at CIS, Tony represented conductor Lawrence Golan in his challenge to Congress's constitutional power to remove works from the public domain, which he argued before the Supreme Court of the United States. He also represented visual artist Shepard Fairey in copyright litigation against The Associated Press over Fairey's "Obama Hope" posters, and represented RDR Books as trial counsel in its copyright and Lanham Act dispute with J.K. Rowling and Warner Brothers over the Harry Potter Lexicon. Those cases followed notable victories on behalf of the producers and distributors of the film Expelled: No Intelligence Allowed in litigation against Yoko Ono Lennon and EMI Records, on behalf of Professor Carol Shloss in her lawsuit against the Estate of James Joyce. Tony also represented a wide array of organizations as amicus curiae in federal appeals courts throughout the country, including The Andy Warhol Foundation for the Visual Arts, Creative Commons, and the American Library Association. In addition to litigating, Tony advised dozens of documentary filmmakers, writers, artists and other content creators on fair use and other intellectual property issues.

As a Lecturer in Law, Tony has taught both lecture and clinical courses at Stanford Law School, including Fair Use in Film, Advanced Topics in Cyberlaw, and the Cyberlaw / Fair Use Clinic.

Prior to his work at Stanford, Tony was a litigation partner in the San Francisco office of Bingham McCutchen. He is a 1997 graduate of Harvard Law School, and was a law clerk to the Hon. Barry T. Moskowitz, U.S. District Judge, Southern District of California.

AP Issues Statement About Fairey's Answer, Misses Point Entirely

By Anthony Falzone on April 16, 2009 at 9:12 am

In the answer to The AP's counterclaims we filed yesterday, we included a dozen examples of AP photographs The AP sells, which consist almost entirely of the copyrighted artwork of Fairey and other artists.

Today, The AP issued a statement accusing Fairey of "making attacks" on The AP and "deliberately omitt[ing]" the "newsgathering context in which the various images were generated and in which they are used."

The funny part about this is Fairey doesn't allege The AP's photos are illegal or infringing, much less "attack" The AP. The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way. Fairey's allegations don't say the AP shouldn't be allowed to do what it does. These allegations -- and the AP's response -- just demonstrate The AP demands wide leeway for its use of other artists' work, but insists that others, like Fairey, are entitled to much less leeway.

As for "newsgathering," The AP misses the point again. While the photographs may have originally been taken for the purpose of newsgathering, they are presently for sale on The AP's image licensing database as a commercial product for "professional photo buyers."

So let's get this straight: We're not alleging The AP's photographs infringe anyone's rights, or demanding The AP stop doing the excellent work it does. We simply contend The AP should have to play by a consistent set of rules. We contend fair use should apply broadly -- for everyone. If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too.

Fairey Answers The AP's Counterclaims

By Anthony Falzone on April 15, 2009 at 10:03 pm

We filed our answer to The AP's counterclaims yesterday, and it's attached below. The interesting part is at the end, where we illustrate the double standard the AP seems to employ when it comes to using copyrighted works.

URAA Held Unconstitutional

By Anthony Falzone on April 3, 2009 at 1:58 pm

We're thrilled to report the Court has upheld our challenge to the constitutionality of the URAA's restoration of copyrights in public domain works. Today, the Court granted our summary judgment motion, holding the URAA violates the First Amendment insofar as it suppresses parties' rights to keep using works they exploited when those works were in the public domain. Needless to say, this is a big deal. It is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government's ability to erode the public domain. It is also the culmination of a lot of hard work by a lot of CIS lawyers dating back to 2001, including myself, Larry Lessig, Chris Sprigman, Edward Lee, Jennifer Granick, Lauren Gelman, Colette Vogele, Julie Ahrens, Chris Ridder, Sarah Pearson and others. I expect there will be more to come, including a return to the Tenth Circuit. Look for updates here. In the meantime, Judge Babcock's order is attached below.

Scrutinizing The URAA

By Anthony Falzone on March 30, 2009 at 12:52 pm

Two years ago, the Tenth Circuit Court of Appeals broke new ground. It held the URAA's restoration of copyrights in public domain works departed from the "traditional contours" of copyright by contravening the "bedrock principle of copyright law that works in the public domain remain in the public domain." In doing so, the Tenth Circuit became the first court in the country to hold that ordinary First Amendment scrutiny applies to an amendment of the Copyright Act. Now we're back before the District Court on remand to determine whether the URAA can survive First Amendment scrutiny. Each side has cross-moved for summary judgment on that issue. The briefing on that issue is now complete, and each brief is attached below. No hearing date has been set.

FUP Files Suit Against The Associated Press On Behalf Of "Obama Hope" Artist Shepard Fairey

By Anthony Falzone on February 10, 2009 at 3:43 pm

Last week, the Associated Press accused Los Angeles visual artist Shepard Fairey of infringing copyrights the AP asserts in a photograph Fairey used as a visual reference in creating the Obama Hope poster that became a ubiquitous symbol of President Barack Obama's campaign. Yesterday, we filed suit against the AP on Fairey's behalf to vindicate his rights, and disprove the AP's accusations.

Read the full complaint here.

Anthony Falzone

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