Stanford Center for Internet and Society

I wrote about your case here http://www.iprha.com/iprha-news/iconic-image-of-obamas-campaign-sets-off... and noticed that the wikipedia page had been defaced to say:

Not to be mistaken for “”’Fairey use”’”, where street artist Shepard “obey” Fairey is a law unto himself and uses images without permission on a regular basis.

I then edited it out

revision history here (http://en.wikipedia.org/w/index.php?title=Fair_use&action=history)

Anyhow, interesting case, fair use is becoming a huge issue on YouTube, Veoh and the like.

I think you left out an important component in this paragraph, which was that Shepard Fairey assailed against those who were selling the posters for more then they were worth on Ebay, and that they "put 100% of the poster proceeds back into the Obama campaign."

http://obeygiant.com/page/34
and
http://obeygiant.com/headlines/obama-ebay-disappointment

I applaud your efforts Mr. Falzone, but your "Factual Allegations" do not make it clear whether Mr. Fairey profited from his non-authorized use of the copyrighted work. For example, did he "expense" any money from the sales of his enhancement of the AP material? More evidence is going to have to be discovered and evaluated in this case. Fair use in the absence of a element of parody most likely would require that no profits were made, and that the accounting of so called "expenses" was transparent and backed up with documentation. You have a real chance if you can prove that. I don't think that AP would have risked the investment into going after Mr. Fairey unless they knew they could recover some green public domain images of Ben Franklin. Good luck Sir - Regards,

But why is it ok even if Fairey donated proceeds made form a copyright infringement? I'd love to donate money myself to hundreds of causes, would be all the better if I knew I could make the money that I donated off of other peoples backs instead of using money that I earned on my own and get to keep. I would guess he gets a tax break as well?

The AP has been very aggressive in trying to establish its rights (whether they are correct or not will need to be settled by the courts) and their legal staff has to go after this famous work lest it weaken the strength of their argument.

I am very happy that I don't have to sit on the court and make the decision. This has the look/feel of a case that could go to the Supremes.

I thought I heard or read that Shepard Fairey was using the AP photograph under the "Fair Use" principle.

Briefly, the Fair Use Principle says this: "Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism."

Buy after reading these Fair Use principles myself, I now don't think he can claim "Fair Use".

Here are the principles:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/ind...

What do you all think?

Thanks,

PEMF

Shepard Fairey has written a long blog post about the situation he is involved in regarding the legal case with the Associated Press. Here are the first two paragraphs:

"I’m sure a lot of people are wondering about my case with the AP over the Obama HOPE poster. I can’t talk about every aspect of the case, but there are a few things I want to discuss and points I’d like to make."

"Most importantly, I am fighting the AP to protect the rights of all artists, especially those with a desire to make art with social commentary. This is about artistic freedom and basic rights of free expression, which need to be available to all, whether they have money and lawyers or not. I created the Obama image as a grassroots tool solely to help Obama get elected president. The image worked due to many complex variables. If I could do it all over again, I would not change anything about the process, because that could change the outcome. I am glad to endure legal headaches if that is the trade-off for Obama being president. I’m not saying my poster got Obama elected, but if it helped AT ALL I’d do the same thing over again."

You can read the entire post here.

He has a lot of very interesting things to say there.

Thank you,

Ken from Used Office Furniture

I am SO thrilled to hear that you have filed suit on behalf of Mr. Fairey. The Associated Press may be a juggernaut in the journalism world but it was Mr. Fairey's inspired artwork that captured the mood and youth of the campaign.

Cheers to both you and the artist. It is acts like these that make me proud to be associated with Stanford.

The AP is going after Shepard Fairey and his use of their Obama photograph in his artwork. They filed a lengthy Answer to his previous action and are seeking damages.

It turns out that this case is not an argument about fair use, but it's about whether Fairey copied protectable expression in the first instance. If the court determines that there was no copying of protectable elements, there is no need to conduct any fair use analysis.

The photographer, Garcia, was a full-time salaried staff photographer while he took the photo, which, if true, would seem to solidify the AP's claim that the photo is a work made for hire, which it owns.

It doesn't look good for Fairey (in my opinion).

I went to a couple of graphic design schools as a college student and they stressed how important it was to learn and follow copyright law as a graphic designer.

This is going to be a big, interesting, hopefully decisive battle.