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AP Responds to Fairey

By Intellectual Property Law, Esq.

The AP filed its response to Shepard Fairey's complaint today. You can read it here. It sometimes has a bit of a kitchen-sink feel to it, but, on the whole, it's very well done. Some highlights (with paragraph numbers in parentheses):

• They say Fairey's work "cop[ies] all the distinctive and unequivocally recognizable elements of the [AP] Obama Photo in their entire detail, retaining the heart and essence of" the photo (54). Fairey's work does not "alter any of the distinctive characteristics that make the Obama Photo so striking .... All the recognizable elements remain completely and unmistakably intact ..., including the angle and slant of President Obama's head, and his gaze and expression; the contrast, focus, and depth of field of the photograph; as well as the shadow lines created by the lighting in the original photo" (59). "The unique composition, angle, center of focus, framing, and depth of field, along with the particular reflection of light, shadow lines and contrast, combined with the particular type of lens that [the photographer, Manny] Garcia used, created a unique image" (96).
• In support of the previous point, they include an interesting quote from Garcia that I hadn't seen before, explaining how he got the photo: "I'm on my knees, I'm down low .... And I'm waiting. I'm looking at the eyes. I mean, sure, there's focus, and I want the background to be a little soft. I wanted a shallow depth of field. I'm looking and waiting. I'm waiting for him to turn his head a little bit. I'm just patiently making a few pictures here and there, and I'm just looking for a moment when I think is right, and I'm taking some images as I'm going along, and then it happened. Boom, I was there. I was ready" (97).
  
• They emphasize that "there is no doubt that [Fairey and his entities] are profiting handsomely from their misappropriation" (55). "As just one of myriad examples of [Fairey's] commercialization of the [image]," they point to a sweatshirt (55) and T-shirts (56) bearing the image. They say that "according to published reports," Fairey's profits from the image as of Sept. 2008 exceeded $400,000 (57).
• Paragraph 58 is, I think, the core of the argument: "Fairey could have selected from any one of countless images of President Obama .... Instead, Fairey was drawn to the unique qualities of this particular photograph." "Rather than simply contacting The AP and obtaining permission and a reasonable license, which would have been both easy and relatively inexpensive to do, Fairey proceeded to take all of the unique characteristics of the Obama Photo" (129, my emphasis).
  
• They go after Fairey for "his aggressive and hypocritical enforcement against others of his own intellectual property rights" (60). Fairey's companies "are quick to hunt down artists who they believe unlawfully use Fairey's intellectual property, without apparent regard to the principles of fair use that Plaintiffs conveniently espouse in this case" (112). They even mention one case where "Fairey's counsel ... warned [the recipient] to refrain from publishing any of Fairey's cease-and-desist letters: "As this letter demonstrates, Fairey is hardly a champion of the First Amendment" (121). (They also mention the case I cited yesterday, where "in the three months before the items were withdrawn, the designer made less than $70 for the sale of 16 items.")
  
• They argue that "the rule of law that Fairey argues here essentially would permit someone to take and commercialize a content owner's property without attribution or reasonable compensation" (62).
• On the question of who owns the copyright in the underlying photo, the AP or Garcia, they note that Garcia was hired as "a full-time salaried staff photographer" on March 29, 2006 and the photo was taken in April 2006 (94), so that would seem to settle that. They also indicate that they hold the copyright registration in the photo (96).
  
• They also go after Fairey for "deliberately misrepresent[ing] the source of the Infringing Works in [the] Complaint" (142) in a "misguided effort to argue that Fairey made more substantial changes to the photograph ... than he actually did" (143). (This has to do with the issue I mentioned in the second update to this post.)

Marquette's Bruce Boyden, who's been all over the case (he's up to part five of his six-part series), has some initial observations. He notes that the AP "is playing hardball," and correctly points out that "like Fairey?s complaint, the AP?s counterclaims go well beyond merely stating a cause of action, and attempt to win the battle for positive publicity as well. ... Both sides in this case have their eye not just on the law, but on the ordinary, nonlegal intuitions of the press, the judge, the jury, scholars, and bloggers."

Full post as published by The Art Law Blog on March 11, 2009 (boomark / email).