Hypocrisy And Bad Faith In The AP's Countersuit Against Shepard Fairey

The AP shot back at Shepard Fairey yesterday, filing counterclaims alleging that Fairey's HOPE poster, which he created based on a photograph by Mannie Garcia, was a "willful and blatant violation of the The AP's copyright." Despite its melodramatic rhetoric, the AP has a weak case.

The AP first publicly accused Fairey of copyright infringement in early February, but didn't file a lawsuit in the hope, it said, of an amicable solution. Instead, the AP's lawers reached out to Fairey and, according to the AP's countersuit, "made every effort amicably to enter into a license and avoid litigation." But in a strategic move the AP calls bad faith, Fairey sued first, asking a court to declare that he had not infringed the AP's copyright.

As I argued just before he filed his lawsuit, Fairey's use of the Garcia photograph almost certainly qualifies as "fair use" and therefore does not amount to copyright infringment. And that, of course, is the real issue. The AP spends a lot of time in its complaint attacking Fairey for making artwork in the past that supposedly violated other people's copyrights, and for "hypocritically" suing people he claimed violated his copyright, but these assertions are as legally irrelevant as the AP's statement that "more than 30 AP journalists have lost their lives in the line of duty."

There is another real issue, one that technically comes before the question of fair use: whether the AP owns the copyright to Garcia's photograph in the first place. The AP claims in its countersuit that it hired Garcia as "a full-time salaried staff photographer," implying that the AP owns the copyright to Garcia's work as an employee. But when I spoke to Garcia in early February, he told me in no uncertain terms that he had worked for the AP as a freelancer, not a full-time employee, and that it was only after the AP learned that the Fairey poster was based on his photograph that the AP started telling Garcia he'd been hired as an employee. In fact, (as he had told others) Garcia said that the only contract he signed with the AP was one for an "independent freelance writer" that doesn't even mention photographs---which, if true, makes the AP's copyright-ownership claim all the more dubious.

Figuring out what is and isn't true is the next step in the lawsuit, as the parties enter "discovery" and each side investigates the other side's evidence.

There is a lot at stake here. As Law Professor Bruce E. Boyden explains in a detailed examination of the AP's counterclaims, the "AP is casting a broad net over all appropriation art." An AP victory in this case would undermine artistic freedom. And it would, to paraphrase Professor Lawrence Lessig from his recent presentation at the New York Public Library, effectively outlaw a legitimate form of art.

The AP cloaks itself in the noble vocabulary of freedom, proclaiming that its "news gathering activities require it, often at great expense, to remain a strong advocate of the First Amendment." But the "fair use" doctrine is what keeps copyright law from violating the First Amendment. If the AP were really advocating for free speech, it wouldn't have filed its counterclaim.

Jonathan Melber is an attorney and co-author, with Heather Darcy Bhandari, of ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career (Free Press), a professional-development guide for visual artists. He and Heather twitter here.

Comments

[Lazslo]

There's a federal civil rule that prohibits the prosecution of frivolous claims in a suit. I'm sure Fairey will include that as an affirmative defense in his answer to the AP's counter-suit.

[edg1]

If as the AP says, Garcia is "a full-time salaried staff photographer", then AP should have withheld payroll taxes and submitted them to the IRS. If they didn't, they now owe penalties and interest. Also, Garcia can now sue for unpaid compensation, as he should have been drawing an AP salary ever since that photo was taken. He could sue to recover back wages with interest and for payment of his court costs. Also, he has valid claims under Federal labor law that could result in the imposition of stiff fines on AP. And AP put it in writing that he was an employee! WTF were they thinking?

[NObey]

One more point. What frustrates me most about this case is that the status of ownership is not clear. My guess is that the AP would not make the mistake of going to court if in fact they do not own the image. Another thing that bothers me is that Mannie Garcia was originally annoyed by the fact that Shepard Fairey had used his photograph without permission. It seems that his opinion changed after one of the galleries that represents Fairey decided to sale limited edition prints of his photographs. Anthony Falzone points out in Fairey's lawsuit against the AP that those prints are an example of how Garcia's photographs have increased in value because of Shepard Fairey. It just seems staged. As much as I dislike the AP I think it is important to point out that a lot of key players in this drama should have their ethics questioned. Why is the Fair Use Project representing an artist who has attacked Fair Use?

[Jonathan Melber - Huffpost Blogger]

NObey: When I interviewed Garcia, which was only a couple weeks after he'd learned that Fairey had used his photograph---and before the case went to court---he said he thought the fact that his photo was the basis for the poster "was pretty cool" and he was proud of it. He also said he wanted do something collaborative and creative with Fairey and James Danziger, the gallery owner who first contacted Garcia about having a show of his work. He had no interest in suing and didn't want the AP to threaten, let alone pursue, litigation against Fairey. Did you hear something different? That would be interesting to know.

[NObey]

I guess you don't post links. Anyways, I advise everyone to look up Larkin Werner and Baxter Orr. Discover how Shepard Fairey sent those two emerging artists cease and desist letters even though their work was a perfect example of Fair Use. Melber, if you are going to make the AP into the big bad bully here you should at least point out that Shepard Fairey has silenced the expression of other artists. He did drop his cease and desist order against Werner, but that may have been due to the bad press he received from Gawker and the Myartspace Blog than anything else. It was foolish of Shepard to go on NPR stating that he supports Fair Use when just a week or so before he sent a cease and desist letter to Cafepress over Werner's 'Obey Steelerbaby' merchandise. How naive to think that he could own a word!

[Tater]

Also look up Rogers v. Koons to see where Melber's claim of Fair Use breaks down. This was where Koons took a photograph and used it as the visual basis for a scuplture.­..

"The Court found both "substantial similarity" and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying. Thus the sculpture was found to be a copy of Rogers' work."

Sorry Melber, applying a Photoshop filter and adding small graphic illustration and some text does not constitute a transformative interpretation of the original work, as evidenced in ubiquity by the millions of HOPE parody images floating around the web.

[GrahamInCanada]

Geepers, you should be following your own advice. Rogers v Koons (1992) was a case in which Rogers sued Koons who faithfully copied Rogers work and argued that it was faithfully copied in order to parody it. Koons lost. It has nothing to do with Melber's claims in this case, as he is not claiming that he faithfully copied something in order to parody it.

But, if you had looked it up, you might have come across Blanch v Koons (2006), (yep, the same Koons), where he was again accused of violating copyright, but this time he won.

You should look it up, but here is a teaser, which does apply to Melber's claims:

"The use in question, therefore, was 'transformative' because in the words of the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, it 'adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.'"

[Jonathan Melber - Huffpost Blogger]

Two places to start on Fairey's use of cease-and-desist letters are:

http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932

http://medianation.blogspot.com/2009/02/hypocritical-shepard-fairey.html

I don't get into his history of going after people he thinks infringed his copyrights because, as I say in the piece, it's not relevant to the legal question in the AP case. Whether enforcing intellectual property rights in the past makes him a big bad bully is not a legal question, so I leave it to others.

[NObey]

You want to see corporations get slapped down? You do realize that Obey Giant is technically a corporation. Just food for thought.

[SantaFeConservative]

The "artist" gets to steal someone else's work and it's OK? This is no different than rap and hip-hop "artists" stealing "samples" of other artist's musical work. Whaever happened to real artists that actually did their own work?

[MJinCanada]

Copyright law is tricky -- I recently had to look it up because a colleague got a rather suspicious contract from a trade publisher. As I understand it, this is how it works:

If Garcia, as a freelancer, signed a "work for hire" contract as a writer, then everything he wrote for AP belongs to them, and I hope his contract specifies that only the stuff he wrote for them belongs to them, because publishers have gotten grabby about articles written in one's spare time during the run of the contract.

If he did sign such a contract, then it would have to specify print materials and not "all works" for the photo to belong to Garcia.

If there was no contract, and they just bought Garcia's articles and photos as he offered them, then they've got no claim.

I do hope AP gets slapped down, because corporations have been getting excessively grabby about copyrights and patents over the last couple of decades. I'm still peeved that a US university "patented" quinoa, the grain South American farmers have been growing and improving for millennia and then tried to get the farmers to pay up.

[Lazslo]

You have no idea the magnitude of the U.S.'s piracy of products from other countries and patenting of those products by U.S. corporations.

[DaneAZ]

Last sentence: "If the AP were really advocating for free speech, it wouldn't have filed its countercla­im."

I think that says it all.

[Pupadup4oBama]

I hope Garcia testifies on Shephard's behalf.