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|| SportsShooter.com: Member Message Board
Shepard Fairey sues AP
Dave Amorde, Photographer
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Lake Forest | CA | USA | Posted: 4:09 PM on 02.09.09 |
| ->> Before you know it, he'll be shaving his head and driving around without any panties. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 4:16 PM on 02.09.09 |
->> A copy of the complaint can be read here:
http://www.scribd.com/doc/11990547/Fairey-v-AP-Complaint
The suit is a preemptive strike. The interesting question is whether AP will seek to derail the action by making ownership (or more precisely, the fact that there presently exists a dispute between AP and Garcia regarding ownership) an issue in the case. |
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John Strohsacker, Photographer
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Baltimore | MD | USA | Posted: 6:16 PM on 02.09.09 |
->> Funny...followed Sam's link to the complaint and clicked on google ad for:
"Obama Shepard Fairey Poster"
President Barack Obama Prints & Posters That You Can Believe In!
and it links here:
http://posternet.com/ShowArtist.aspx?id=114439
Wonder who gets the poster profits? |
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Dave Londres, Photographer
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Utica | NY | USA | Posted: 7:13 PM on 02.09.09 |
->> From what I've seen, I think Fairey has a good argument. The four-part fair use doctrine looks at the purpose/character, nature, amount, and effect on the market of the original. Fairey seems to say here: http://www.colbertnation.com/the-colbert-report-videos/215976/january-15-20...
(that source probably destroyed my credibility, but I will continue)
that he isn't really profiting from the image.
The nature of the work involved effort and is creative.
The amount of the original is debatable and depends on what people find the "heart of the work".
The effect on the market of the original in my mind is only positive.
I think this is fair use. |
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Jeff Martin, Photographer
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wellington | OH | usa | Posted: 7:41 PM on 02.09.09 |
->> I was completely unaware that you could file a suit of this nature. Basically asking the court to rule you have done no wrong when there is no (legal) accusation that you have done wrong.
Dave L., It appears to me that the only difference between the original and the poster is the background. The subject of the photo (and the only meaningful part) is Obama. He (Obama) would seem to be the "heart of the work." |
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Dave Londres, Photographer
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Utica | NY | USA | Posted: 7:57 PM on 02.09.09 |
->> Jeff, is AP/Garcia claiming copyright of Obama's face? It took quite a while to figure out the exact frame he used:
http://blogs.phillynews.com/inquirer/sceneonroad/
Fairely could have used any of the countless photos of Obama on the internet to make his screen-print. The heat is now coming because he admitted it. |
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Al Goldis, Photographer
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East Lansing | MI | USA | Posted: 8:24 PM on 02.09.09 |
->> According to the article, technically, it wasn't actually Fairey who filed the lawsuit.
"The lawsuit was brought on Fairey's behalf by the Stanford Law School's Fair Use Project and a San Francisco-based law firm." |
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Jeff Martin, Photographer
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wellington | OH | usa | Posted: 8:54 PM on 02.09.09 |
| ->> Dave, Fairley has indeed admitted it. If he hadn't, he might be OK. I'll give him credit for being honest enough to be honest about it if that makes sense. IMO he is only admitting it because he thinks he has the right to use your images or anyone else's to create his art (or paint your garage door). |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 9:20 PM on 02.09.09 |
->> Jeff,
This sort of preemptive strike, commonly referred to as a "dec action" ("dec" is short for "declaratory"; in this context, "dec" is pronounced like it was spelled "deck"), is not unusual. In many cases, it is brought to establish where the battle will be fought.
Let's say you're in Ohio, and you receive threats of a lawsuit from someone in California. Are you going to want to sit around until a suit is filed in California and you have to defend yourself thousands of miles from home? Of course not.
Sometimes the dec action is filed to take advantage of a particular circuit's law. On a federal level, the courts are grouped into separate circuits, and the law can vary from circuit to circuit.
As for the fair use analysis, the fact that Fairey admitted seeing and using the photograph as the idea for the poster is irrelevant. It would probably harm his case to deny it. No part of the fair use analysis is dependent upon the defendant admitting that the resulting work was in some way based upon the first work.
Al,
Whether Fairey himself filed the complaint is irrelevant. He is one of the named plaintiffs, and therefore, a party to the suit. For all practical purposes, it is his lawsuit. In most cases, the party's lawyer files the complaint, but that doesn't change the fact that the party is the one who owns the claim.
The problem with this suit is that Fairey has a fair use advocate--who would love nothing more than to expand the scope of fair use--handling the suit (and probably at no cost, although I no information confirming that). |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 1:18 AM on 02.10.09 |
->> I'd like to know how the Garcia-AP dispute shakes out. If the AP doesn't own the copyright to the original image, they have no standing in an infringement case. If ownership is called into question, the burden will be on the AP to prove ownership.
--Mark |
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Thomas E. Witte, Photographer, Photo Editor
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Cincinnati | OH | USA | Posted: 1:57 AM on 02.10.09 |
| ->> Since Fairey sued the AP, it would be really funny if the AP claimed Garcia has ownership. Fairey's claim would be moot and Garcia could then fire off his claim to preempt a dec action. This is better than TV. |
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Mike Burley, Photographer
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Walter Calahan, Photographer
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Westminster | MD | USA | Posted: 8:27 AM on 02.10.09 |
->> Oh were is King Solomon when you need him?
More silliness to line the pockets of lawyers.
Shakespeare and me will be found in the bar. HA! |
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Walter Calahan, Photographer
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Westminster | MD | USA | Posted: 8:29 AM on 02.10.09 |
->> That's 'WHERE' not were.
And yes, yes, that's 'Shakespeare and I,' but it doesn't sound as funny. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 9:40 AM on 02.10.09 |
->> Mark and Thomas,
If AP now admits that Garcia owns the image, that would potentially derail Fairey's action for two reasons. First, there would be no actual and present need for a declaration since AP cannot carry out its threat of an infringement suit. Second, the case would seek to adjudicate Garcia's rights, and it can't do that without Garcia being present (to allow the case to proceed without Garcia's presence is a Due Process violation).
Thus, AP is faced with a Morton's Fork: it can admit that it doesn't own the image and take the PR hit; or it can continue to assert ownership and try to defend a difficult case.
Thomas, as for your suggestion of Garcia bringing a dec action, there seems to be little incentive for Garcia to bring such an action, at least vis-a-vis Fairey. Unless Garcia has found an angel willing to cover the legal costs, he has no reason to willingly go to war over the scope of fair use when Fairey clearly has greater resources at his disposal. |
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Rich Obrey, Photographer
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Gorham | ME | USA | Posted: 12:26 PM on 02.10.09 |
->> ***
The lawsuit was filed on the same day that Fairey appeared in a Boston courtroom, where he pleaded not guilty to charges he tagged property with graffiti. He allegedly vandalized the property last month as part of one of his street art campaigns. The 38-year-old Los Angeles resident was arrested Friday when he was in Boston for an event kicking off his exhibit at the Institute of Contemporary Art.
***
A 38-year-old graffiti artist? I thought there was an age-limit on that...? |
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Doug Holleman, Photographer
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Temple | TX | USA | Posted: 2:01 PM on 02.10.09 |
| ->> I guess next we'll be hearing from the Bob Hope estate. |
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Jeff Martin, Photographer
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wellington | OH | usa | Posted: 2:02 PM on 02.10.09 |
| ->> Thanks Samuel, for the good explanation. |
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Christopher Szagola, Photographer
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Richboro | PA | United States | Posted: 11:42 PM on 02.12.09 |
->> Hate to bring this back up, but there was a funny segment on The Colbert Report tonight, Feb 12.
Love Colbert's brother's answer to who is right... |
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David A. Cantor, Photographer, Photo Editor
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Toledo | OH | USA | Posted: 2:27 AM on 02.14.09 |
->> I'm thinking he could sue these guys.....hello kettle, calling pot...?
http://www.toledofreepress.com/
(mayoral candidate) |
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Andrew Sullivan, Photo Editor, Photographer
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