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Just last June, the AP caused a stir, reported on BlogHer by Professor Kim, with the result that many bloggers now refuse to quote or link to any stories from the AP.
Now the AP is exposing its legal fangs again by suing Shepard Fairey, the creator of the Obama "Hope" poster. They claim that because the poster was based on a photo that may be owned by the AP, he violated the law. I say "may be owned" by the AP, because since the photo came under legal dispute, the photographer, Mannie Garcia, is claiming he owns the photo.
According to the Media Law Prof Blog, Fairey has sued the AP in return, saying he did not violate any copyright laws.
This thing has me so paraniod, I don't even want to show you the poster in question. You can see it in this article on Tech Crunch: Once Again, The AP Tries To Redefine Fair Use; Goes After Shepard Fairey For Obama Poster.
According to the Tech Crunch artcle, Fairey is being reprsented in the fight by The Fair Use Project at Stanford Law School. According to their website, their purpose is
to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom.
This case seems to be a perfect way to clarify the boundaries of "fair use." You can read the full complaint of the Stanford Law case (a PDF). Here's part of what it says:
In creating the illustration of Obama used in Obama Progress and Obama Hope, Fairey used the Garcia Photograph as a visual reference. Fairey transformed the literal depiction contained in the Garcia Photograph into a stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. While the evident purpose of the Garcia Photograph is to
document the events that took place at the National Press Club that day in April 2006, the evident purpose of both Obama Progress and Obama Hope is to inspire, convince and convey the power of Obama's ideals, as well as his potential as a leader, through graphic metaphor. By evoking stylized propaganda posters more often associated with autocrats and dictators, Fairey at once portrays the inevitability of Obama's triumph, while suggesting qualities of wisdom and vision that pull viewers willingly into Obama's message of hope, progress and change.
I went to Rebecca Tushnet from Rebecca Tushnet's 43(B)log. Tushnet is a law professor at the Georgetown University Law Center. She agreed to help clarify some of the fair use issues for me. I asked her these questions.
Q: What is “fair use?”
A: Fair use is a doctrine in US copyright law that allows people to make various uses of copyrighted works without permission from the copyright owners. News reporting, education, criticism and commentary, parody and the like are fair use favorites, but the test is case-by-case and considers several factors.
The key ones:
(1) What type of use is it? Noncommercial uses and "transformative" uses—uses that add new meaning to the original or use it for a new purpose—are favored under this factor.
(2) What type of work is the original? Use of a factual or widely disseminated work is more likely to be found fair than use of a fictional, unpublished work.
(3) How much of the original was taken? Quotations for review or thumbnail-sized pictures are more likely to be found fair than copying an entire work at full size.
(4) What's the effect on the market for the original? If the use substitutes for an existing or likely market for the original—for example, if the use is making a movie out of a novel in a standard adaptation—then it's less likely to be fair. But if markets are unlikely to form—for example, authors are unlikely to license criticism in book reviews, and we don't want to give them control of the book review market anyway—then the use is more likely to be fair.
Q: Is there a legal difference between posting an image on a blog where there may be income generating ads and posting an image on a blog for commercial reasons? What’s the definition of non-commercial use?
A: That's a really tough question, because copyright law hasn't done much to recognize the increasing variety of situations in which copyrighted works can appear online. My best answer: if the blogger
