Faster than a speeding brief.
Of course, I'd ordinarily blockquote Professor Friedman here, but considering that this is a Copyright case, and I don't want to annoy him with yet more commentary appropriation, maybe a more non-cribbed analysis would be in order? ;)
The good Professor is continuing down the basic line of thought that he's been saying from the very beginning of this case:—The Fairey Obama posters are creative works that are, in essence, fair uses of the original AP photograph. He brings some new ammunition to the table in this latest argument, though:
In a nutshell, the elements of the photograph copied (or "appropriated," to use Professor Friedman's often-used terminology) by Fairey—Namely, the angle and basic composition of the photograph—are not protected by Copyright law.
Again, I'm no expert on copyright law, and Peter certainly brings the usual case law-based punch to the discussion, but this would seem to me to bring up a very dangerous argument, as far as protecting the business of wire service photography goes. Saying that the arrangement, angle, and crop of a wire service photograph is not protected by Copyright law is, essentially, to say that the photograph itself is unprotected. Which, of course, could definitely put a pretty significant chill on the services that wire agencies provide.
I'm not sure that this is necessarily a bad thing, since I'm still somewhat irate that the AP has used the Copyright bludgeon against me, but there are definitely some merits to such an argument.To the blogosphere, a ruling like Peter suggests would be an astounding boon. As it stands today, we bloggers are forbidden from displaying wire-service photographs when we discuss the subjects they depict. If a court were to rule that using photographs for the purpose of political commentary were fair use, this would definitely serve to free the blogosphere from the continually-imminent threat of lawfare.
Anyway, Peter's commentary is definitely worth a read, as always.
On a related note, A Photo Editor has highlighted the interviews NPR hosted with Fairey and Garcia. There are a couple of really interesting tidbits in here. Firstly,
Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image.
...
And then they said no, we want damages.
Is the AP defending its Copyright? Or is it desperately hunting for deep pockets? And is the latter really the purpose of Copyright law?
And secondly,
–Mannie also talked about his dispute with the AP over who owns the copyright. I haven’t heard or seen the AP produce the contract or agreement with Mannie that says they own it so I assume they can’t find it or there’s problems with it.
I'll be checking with a couple of my wire stringer friends, but on the surface, I can't imagine that the AP would sign photographers unless the full Copyright on the wire photos was transferred to the Association. It would truly be a boneheaded oversight on their part, if true... which is why I doubt it greatly.
Update: A Photo Editor brings up an interesting point:
It’s the first quote from Fairey where he said he looked at a lot of photographs before he selected this one. That indicates to me that the photograph had qualities in it that were not available in other pictures of Obama.
Yup. Which means that perhaps there was "some" artistic merit in Garcia's picture, doesn't it?
Tags: copyright AP #DailyFodder
