I am one of those fortunate professors whose students are committed to her continuing education. My last two posts discussed the ridiculous assertion by the Associated Press that a painting of Barack Obama by Shepard Fairey (right image, below) infringed a photograph of Barack Obama in which the AP may or may not hold copyright (left, below) because of the “similarity” of the two images.

I offered the rather unremarkable observation that they JUST MIGHT look similar because THEY BOTH DEPICT THE FACE OF THE SAME MAN.” The non-legal way to say this might be “Duh.” Something for which you shouldn’t have to go to law school for 3 years and practice law for 27 to figure out.

And then two of my law students send me some great follow up material. En Hong sent a hilarious debate on The Colbert Report (where even the attorney taking the side of the AP can’t keep a straight face) and Nancy Sims sent me an article where the attorneys for Mr. Fairey are using principles of crowdsourcing to ask people to send photos of Barack Obama that look like the Barack Obama in the “AP” photo. And look what we find from Steve Jurvetson
:
Now, let’s juxtapose those images:

I am hoping that the Web and crowdsourcing become tools that start popping those ridiculous copyright infringement balloons that greedy monopolists try to float past judges and juries. Maybe Coldplay could use some help?

This blog is for informational purposes only and does not constitute legal advice. You are invited to comment, but please do not post any information that you consider to be personal or confidential.

My post about Mr. Obama’s face and the copyright dispute between the Associated Press and artist Shepard Fairey has generated some great discussions off line. Here is a more detailed explanation for my position.About 125 years ago, the U.S. Supreme Court looked at the photograph, below, and explained why the photograph was protected by copyright law:

To justify its conclusion, the Court had to identify the “authorship” choices embodied in the photograph. The Court specified the following:

• A useful, new, harmonious, characteristic, and graceful picture
• Made by the photography entirely from his own original mental conception
• Posing Oscar Wilde in front of the camera
• Selecting and arranging the costume, draperies, and other various accessories
• Arranging Oscar Wilde so as to present graceful outlines
• Arranging and disposing the light and shade
• Suggesting and evoking the desired expression

“and from such disposition, arrangement, or representation, made entirely by [the photographer] he produced the picture in suit. These findings, we think, show this photograph to be an original work of art.”Now, compare this to the photo snapped by Manny Garcia (agent for the Associated Press) at a press conference. The requisite elements of “authorship” are not present in the AP photograph. It is a terrific photo, to be sure. Because the subject, Mr. Obama, has a great face with a great expression at that moment. I haven’t heard Mr. Garcia assert that he “evoked” that expression. Captured it? Yes. Evoked it — no. I haven’t heard him assert that he arranged props, or the light and shade, or that it was created entirely from his mental conception. So I learned yesterday that Mr. Fairey has filed a lawsuit against the AP, seeking to have a federal court declare that is not infringing the copyright of the AP. I hope the court asks the deeper question — just what copyright does the AP hold in that photograph that was copied by an artist using the same individual as the subject of the artwork?There are many interesting discussions about this topic, most of them making excellent fair use arguments (which should clearly succeed if a court found that the photo is copyrightable, the AP actually owns the copyright (Mr. Garcia says he was a freelancer and did not transfer his rights to the AP), and Mr. Fairey acutally copied authorship from the photo). I just want us to start out with a strong legal framework, asking first questions first: what is ownable, who owns it, was the copyright registered, and was actual authorship copied? Only then do we get to “was the copying lawful?”

This blog is for informational purposes only and does not constitute legal advice. You are invited to comment, but please do not post any information that you consider to be personal or confidential.

You have heard that the Associated Press is claiming that a photo in which it holds copyright (on the left) has been infringed by a work of art by Shepard Fairey (on the right).
Now, you might look at the image on the left and then the image on the right and say “Gee, they look substantially similar to me.” Well, in the copyright universe, that’s just not enough. Let me ask you why they look similar. Hint — they both depict the face of the same man at a particular moment in time? The photo was not taken at a photo shoot where the AP made all the creative choices. Indeed, it was taken at a news conference where AP did not pose Mr. Obama, did not choose the props, did not choose the lighting, did not set the background, and did not “evoke the desired expression.” Anyone who had an autofocus lens standing next to the AP’s photographer would have captured the same image of Mr. Obama.

Mr. Fairey is, apparently, asserting copyright fair use. Meaning, he is saying “yes, I copied authorship in which the AP owns copyright, but I have an explanation and justification that allows my usage without violating the AP’s copyright.”Here’s what he should be saying: “I didn’t copy the AP photo. I created a work of art that depicts the same man as depicted in the AP photo. The AP does not own copyright in Mr. Obama’s face.” Period.

This blog is for informational purposes only and does not constitute legal advice. You are invited to comment, but please do not post any information that you consider to be personal or confidential.

Susan M. Kornfield, J.D.skornfield@bodmanllp.com

Several years ago, I was listening to a radio interview with Grandmaster Flash. He was talking about what it was like — musically, conceptually — to be present at the moment of hip hop creation. It was a great interview and he had an interesting perspective on the global significance of hip hop.Then the interviewer asked him what advice he would give emerging musicians. There were a few seconds of silence. I leaned closer to the radio to hear what he would choose to pass on to the creative forces of the Universe. This is what he said:“PAY YOUR TAXES, MAN!”I wondered for a moment if I heard correctly. And then he launched into a story about how he had entrusted his financial matters to someone who had failed to keep up with tax obligations, and Grandmaster found himself owing a ton of money to the IRS, plus penalties and interest. He talked about how it affected his business approach to his life from that point forward. I laughed at the realization that taxes transcended art when it came to passing on advice.

All of this came to me as I listened this week to the testimony of Timothy Geitner, our new Secretary of the Treasury, and Tom Daschle, who was almost our Secretary of Health and Human Services. Tripped up by their failures to pay taxes, although Secretary Geitner somehow regained his footing, while Mr. Daschle is down for the count.

President Obama, perhaps your nominees should listen to the Grandmaster. Entrepreneurs, he’s talking to you, too. Take care of business in a rational (OK - semi rational) manner. Get advice from people who know what they are doing.

This blog is for informational purposes only and does not constitute legal advice. You are invited to comment, but please do not post any information that you consider to be personal or confidential.