Fairey's New Hope

Here's an article about Shepard Fairey's changing lawyers in his case about his copyright infringement of a photograph to create the poster of Barack Obama called "Hope."

His new lawyer from Jones, Day (the largest law firm in Cleveland, and one of the largest in the world--I cannot figure out why they've even taken this case since they are a corporation-side law firm) says that one of the ways Fairey can win is "fair use." This is so not fair use.

Fairey took the whole of the work.

Applying a posterizing filter in Photoshop is so not transformative.

He's denied the photographer (and there is still an issue about whether the photograph is AP's property or the original, freelance photographers--C.C.N.V. v. Reid says it's the photographer, not AP that owns the image) the right to make that own derivative work.

Whether or not he's made money for this, his lawyers better take a close look at Rogers v. Koons, which also says this isn't fair use and any money is going to go to the photographer (or AP, if it does turn out AP owns the image.) In the Rogers' case, Jeff Koons took a greeting card with Rogers' photograph of two people holding a litter of puppies, ripped off the copyright notice, sent the photo to artisans in Italy who fabricated a statue of the images--I think nine of them were made--and Koons then sold them at over six-figures a pop, because he is "an artist.') (Koons has also been sued by--and lost to--Jim Davis for doing a statue of Odie from "Garfield." Some people never learn.)

Fairey's poster is an unauthorized derivative work of this photograph, just as the Koons statue was. I think that the judge should have made that ruling on a motion and saved a lot of people a whole lot of money and labor in legal fees. I had a case where the judge pulled in all of the parties--including insurance companies who'd be doing the payout--and told us all the case was about money and there was a price that would make it all go away. He was right. While the insurance defense firm was royally pissed that the parties could do this, it worked out well for everyone else.

Jones, Day is the same law firm that represented the Rock & Roll Hall of Fame against a photographer who made a poster from his shot of the building at sunset--which is, by the way, a fair use--claiming that it was a violation of the Rock Hall's trademark rights in the building. While the trial judge in Cleveland took that hook, line, and sinker, the Sixth Circuit saw right through what had happened (Jones, Day could say what ever it wanted to in Cleveland with no law to back it up against a misguided photographer who represented himself at the hearing) and ruled that because the Rock Hall had no standing to sue on the basis that the photograph infringed on their copyright (the copyright to a building actually rests with the architect and anyone can photograph a building from a public place and not infringe that copyright--as the law clearly says) the lawyers stretched to find a trademark right in every image of the building, which does not exist. It was a nice ruling for the photographer.

You'd think that Jones, Day would have lawyers who know more about copyright than to take this case thinking they can win under the argument of "fair use."

Jeopardy Home Town Howdee

Jeopardy! has put up this week's "Home Town Howdees" here. See me immortalized making funny faces. Remember to watch the show tonight!

Real Fair Use

I collect litigated art for the talks I give about copyright and artists rights, and, in preparation for a talk I'm giving next week, a peachy one has just crossed my desk.

I do not normally agree with Cory Doctorow about copyright issues. He's firmly in the camp of "information wants to be free" which I find at odds with his other job of being a science fiction writer. Cory was on the board of directors of the Science Fiction Writers of America when I first was hired as their attorney, so we've had some dealings over the years. He's a very smart and personable gentleman, even if I don't agree with most of the positions of the Electronic Frontier Foundation or those he propounds on Boing Boing.

This time, though, Cory and Boing Boing are absolutely in the right. They've reproduced a photograph of an impossibly thin model in a Ralph Lauren ad, which you can see here and read about on the Huffington Post. Boing Boing's been hit with a cease and desist letter from Ralph Lauren's lawyers claiming copyright infringement.

This doesn't pass the smell test, or the giggle test, as the blog pointed out. While I get a lot of queries about fair use, most of them involve situations where some schmuck wants to use work without paying for it. This is not that kind of a case. The photograph was reproduced under one of the clearest cases of fair use I've ever seen--commentary on the photograph itself. I think it was originally reproduced in Photoshop Disasters, one of the funniest blogs anywhere, especially if you work with Photoshop (as every photographer today does.)

As pointed out elsewhere, the model in the Lauren ad has a head which is bigger than her pelvis. Last time I looked, that's more than a bit out of proportion. I find her legs to be absurdly thin--rather like Laura Flynn Boyle's walking skeleton the night that David E. Kelley was honored for his legal series at the Television Academy. I could not believe that people complained about Callista Flockhart when Ms. Boyle looked like she had not 1% body fat and legs that looked like toothpicks in her leather pants. (This was my impression from my view about three feet away at the reception that night.)

The model looks awful. Kudos to Cory for pointing this out. I'll handle the case against Ralph Lauren if Cory needs it, which is not an offer I make lightly. Lauren's high powered law firm should have advised him that this is a no-win situation. (Which is what I will tell them if they bother me with one of their C&Ds now that I've had my teaching moment about litigated art.)

And someone should set up a fund to feed this girl.

What's Really Wrong with the Google "Settlement"

I've just been reading Register of Copyrights Marybeth Peters' statement to the Judiciary Committee on the Google Book Settlement. You can, and should, read it here, especially if you have or contemplate having works in print. This involves Google's plan to illegally digitize every book, in or out of print, it can lay its hands on through major library collections, particularly those at colleges and universities. (As I recall, my college library didn't have much of a fiction or comic book collection, but these things change and at least some colleges have huge collections of graphic novels or the papers of science fiction writers.)

I opted out of the settlement for myself and the spousal unit a couple of weeks ago. I have long believed that requiring me to opt out, rather than requiring Google, Amazon, or other similar profit-making entities to individually contact and negotiate with a copyright owner AS THE LAW REQUIRES is an abomination. I am very happy to do it in this case because I can chose to sue them at any time I find they have ignored my wishes. Based on the number of other people I know who have opted out, this should make the company aware that lawsuits loom on the horizon. Finding out that Marybeth Peters believes the settlement usurps Congress' Constitutional right to make law related to copyright makes me do the dance of joy.

If you haven't opted out of the Google settlement, it may now be too late. But it probably isn't too late to let your Congressperson know that you object to the courts stepping in and depriving you of your control over your copyrights. How many of you with published works got a notice of this? If you aren't a member of a creators' trade association, I'll bet it has slipped you right by. I recommend you look into joining ASMP, APA, GAG, SFWA, the Authors Guild or another, similar, group so you won't be left out in the dark.

Even Successful Artists Make Big Mistakes

The mind boggles. Annie Liebovitz is in danger of losing the rights to her photographs because of a $24 million loan she took out last year. She's also in danger of losing several homes or buildings she owns, but that's of less concern to me than the issue of her copyrights. Here's the story. And another one here.

I was a professional photographer, and I'll tell you I felt under-capitalized the whole time I worked full-time, but I can't begin to figure out how someone gets to be $24 million in debt as a working photographer. Yes, start up costs are considerable higher than they were when I started out, but Annie started out a few years before I did, when the most expensive Nikon body was less than $600 new and a couple of good cameras and lenses would put you in business. She had the good fortune to hook up with Rolling Stone, and the rest is history.

I started following Annie's career around 1974 when Peterson's published a book about her and Mary Ellen Mark. My own work is based in portraiture for magazines, books, newspapers, corporate communications, and advertising, so I looked to her as a role model. I met her once, many years ago, and I have the greatest respect for her as a working photographer. Greg Heisler once said "if you want to be a famous photographer, photograph famous people." It is absolutely true, as both he and Annie prove and it certainly helped my own career to do celebrity portraits during my stint as a freelancer for the Washington Post. Art directors remembered those portraits for years after they appeared and they stopped people in their tracks when they'd walk into my office where I had a number of them hanging.

I would doubt that she had the same troubles I did getting advances on fees and expenses from her corporate or advertising clients, but maybe that is exactly where the troubles came from. If you are doing these huge production shoots, but you are expected to front the costs for assistants, models, stylists, props, travel, food, etc., those costs can start climbing really quickly and waiting 60-180 days for payment can put a real crimp in your finances. But $24 million? Wow.

Even if the buildings she owned in New York or the outlying areas were money pits, you'd think she'd cut her losses before it got so outrageous. Maybe the buildings or houses are worth far less because of the housing crash. That's possible, but the reported value of the homes doesn't come close to explaining $24 million.

Maybe it's medical related. If you look at the familial issues of the last 9 years in her life, maybe some of that factors in. Having a child after the age of 50 is no cheap thing in a world where Viagra is covered by insurance but women's fertility issues aren't. Plus her twins were carried by a surrogate. Was she supporting her extended family and over-extended herself?

She did have an admitted drug problem back in her younger days, but I was under the impression that was long gone. If it wasn't, $24 million sounds like a whole lot more than a drug dealer would let build up before taking action, so I doubt that's the reason she needed to borrow that much money.

Maybe she ran up legal bills with the fight against Naked Gun 33 1/3 for copyright infringement of her famous pregnant Demi Moore photograph. I think that the court came to the wrong conclusion--the Fair Use analysis was faulty--but she'd still have to pay lawyers (or at least expenses) after losing the case. But again, $24 million?

No matter how famous she is, I can't believe that even her celebrity status would be enough to encourage a reputable lending institution to place that great a value on her archive as collateral for a loan. If it does, I have a wonderful archive of writer's portraits I'd like to leverage to buy a bigger house. I need about $900,000 and the lender will have to honor the model releases. Some of the most famous writers are no longer with us and the images are ones they really liked (and have appeared on book jackets.)

If I were Annie, I'd be heading for a bankruptcy attorney immediately. At least that way she'd probably still have one roof over her head and the tools of her trade. While I'm not a bankruptcy attorney, I know that there's something called a "homesteader's exemption"--or at least there used to be-- which protects those things. The copyrights are more problematic. They certainly are assets and they do figure in whatever loan Annie took out. This is a sophisticated lender who knows the value of the archive, so it's definitely going to be brought into the petition. I'd like to think that there's room for negotiation here. The lender believes the assets are worth twice the value of the loan, so it's quite possible a good lawyer will be able to negotiate a happy solution.

I'd also recommend that Annie contact someone like ASMP's former Executive Director, Dick Weisgrau, to work on fixing her business practices. This is a situation that got way out of hand, but is not atypical of the left-brain, right-brain skills dichotomy of an artistic person versus a business person. The most successful photographers I've known had a really good handle on the business they ran, but some of the most creative didn't.

I wish Annie nothing but the best and I hope she extricates herself from this to move forward and continues to make great pictures. But I hope she does it with better business advisers.

DMCA in the S.D. of New York

My friend Lisa Jane has been disappointed that I haven't written on this blog for a while. To her I apologize, but there hasn't been a lot of time lately. I did see something today that made me do the happy dance. It's reported on here and here. It's an R.I.A.A. case, Arista Records v. Usenet.com.

The ruling is on the use of the Digital Millennium Copyright Act (DMCA) safe-haven provisions and it is time for copyright owners to breathe a sigh of relief. First of all, it is in their favor. Second, it's in the Federal District Court for the Southern District New York, where a lot of copyright litigation takes place.

I'm looking forward to reading the actual ruling, but the bottom line is that Usenet.com got slammed for claiming what it was doing was protected by the safe haven when it did things like destroy evidence and encourage the use of the service to infringe on the copyrights of others.

When I represented Harlan Ellison against AOL, AOL claimed it was entitled to the safe haven because copyrighted material uploaded by others was only "in transit" on their servers (how the material sitting for weeks on AOL's servers constituted "in transit" was beyond me, but the trial court judge bought it.) Ultimately, Harlan prevailed in part because the Ninth Circuit believed that AOL did not hold up its end on what it needed to qualify for the safe haven (by keeping accurate information about its agent for service of notice of copyright infringement available on the Copyright Office website.) In part, that's what's bringing Usenet.com down here, but there is also the matter of the court recognizing that the material was residing on Usenet servers so other people could download it.

I am so glad to see a better understanding of the damage that the DMCA can cause copyright owners as time has passed. Harlan's first filing was in 2000, occurring pretty much at the same time as the Napster litigation. There was almost no support for what we were doing and individuals who should have seen what we were doing was in their best interests as well just didn't.

Not everything has been resolved by this ruling, and I'd lay money that it is appealed, so I'll be watching what happens. Probably with a big smile on my face. I think I'll look up Judge Harold Baer and see what his other rulings look like.