Stanford Center for Internet and Society

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.

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.

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.

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.

As reported here by the Associated Press, the Fair Use Project is representing visual artist Shepard Fairey in connection with the AP's claim that his iconic work in support of President Obama's campaign infringes the AP's copyrights. More soon.

Updated AP story.