Law Essay

This is about artistic freedom and basic rights of free expression, which need to be available to all, whether they have money and lawyers or not. ” –Shepard Fairey “The journalism that AP and other organizations produce is vital to democracy. To continue to provide it, news organizations must protect their intellectual property rights as vigorously as they have historically fought to protect the First Amendment. ” –Press Release, Associated Press INTRODUCTION During the 2008 campaign, an image featuring then-presidential candidate Barack Obama’s photo became the subject of a legal dispute that continued long after the election ended.

Amidst the presidential debates, another debate was brewing—between a famous visual artist, Shepard Fairey, and a major newsgathering agency, the Associated Press (AP). An AP photographer, Mannie Garcia, took the picture of the presidential hopeful, which Fairey popularized on posters that he emblazoned with the word “Hope. ” Once it was determined that Fairey had used AP photographer Mannie Garcia’s image of presidential candidate Obama in his posters, the issue in Fairey v.

Associated Press was whether Fairey’s use of the photo constituted “fair use,” an affirmative defense under the Copyright Act.

If so, Fairey’s “fair use” would excuse the copyright infringement and Fairey would not have to pay. If not, Fairey would be liable for copyright infringement and would likely have to pay damages. Although Fairey settled the lawsuit with the AP in January 2011, another lawsuit was still pending—that of the AP against Fairey’s clothing company, “Obey Clothing” and other clothing stores (Urban Outfitters, Nordstrom, and Zumiez) for copyright infringement. The parties, however, settled their claims in March 2011. In the settlement agreements, the parties explicitly stated that they still maintain their legal positions in the case.

Thus, the dispute about whether Fairey’s use of the photo constituted fair use has never been resolved. Although the settlement agreement stated that the AP and Obey Clothing agreed to share future profits from sales of the Obama image on merchandise, the underlying issue is still very much alive. The case between Fairey and the AP is certainly timely and addresses copyright in the context of news photos. This issue will continue to be relevant given that President Obama is the likely Democratic candidate for the 2012 presidential election, and it is certainly possible that other businesses will seek to capitalize on Garcia’s photo.

Not only may businesses seek to capitalize on this image, but the Obama campaign itself may look to exploit the image, because the image became so iconic in the 2008 election. Moreover, as opposed to prior case law concerning appropriation of art, this set of facts incorporates new media. “It has become especially important in an era when digital technology allows artists to, with the press of a few buttons, use other people’s finished products as raw material for new works. ” Fair use case law can certainly be applied to cases in the digital area.

The best way to predict the outcome of the AP suit against Fairey’s company is to understand how the court might have ruled in the original case—that of the AP against Fairey personally. This Essay will explore whether Fairey’s use of the AP Photographer’s photo constituted “fair use” and will analyze how the relevant fair use cases would bear on the present case. The AP originally asked to be credited and to receive compensation. First, I will introduce and explain the fair use four-factor approach laid out in section 107 of the Copyright Act. Second, I will discuss how fair use case law, such as Rogers v.

Koons, Campbell v. Acuf -Rose Music, Inc. , Harper & Row Publishers, Inc. v. Nation Enterprises, Dr. Seuss Enterprises v. Penguin Books, Leibovitz v. Paramount Pictures Corp. , enhances our understanding of these factors. Finally, this Essay will analyze the Obama Hope Poster case in the context of the four factors and arrive at a conclusion based on case law and public policy. Key Terms 1. Copyrights 2. Moral rights of copyrights 3. Economic right of copyrights 4. The copyright Act of 1976 on the United States 5. World Intellectual Property Organization (WIPO) 6.

The Patent Cooperation Treaty (PCT) 7. Industrial design 8. The Hague System 9. Copyright Agreement 10. Federal Law of Copyright 11. Industrial Property Law 12. ASCAP 13. The Berne Convention for the Protection of Literary and Artistic Works 14. Instituto Nacional del Derecho de Autor (INDAUTOR) 15. International Trademark Registration (Madrid System) 16. Tariffs 17. Industrial Drawing 18. Brand piracy 19. Registered trademark 20. Natural person 21. Certification marks 22. Collective trademarks 23. Defensive trademarks 24. Generalized trademark 25. Trademark look 26.