Did the AP Break the Law?
posted by Jason Mazzone
There is an interesting development in the dispute between artist Shepard Fairey and the Associated Press. The New York Times reports today that the photographer, Mannie Garcia, claims that under the terms of his contract with the AP, he, not the AP, owns the copyright in the photograph on which Fairey’s poster is based. We’ll have to see how this plays out. But this is a good opportunity to mention the little known (and rarely enforced) criminal provisions of section 506 of the Copyright Act.
506(c) says: “Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.” If the AP does not own the copyright, have AP employees violated this provision? In addition to the requisite intent and knowledge, we would need to know whether AP versions of Garcia’s photo carry a copyright notice attributing ownership to the AP (or words to that effect).
Section 506(e) says: “Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.” Here, we would need to know first whether the AP has registered a copyright in the photograph. I tried searching the registration records at the Copyright Office to determine if there is a registration for the photograph but I was unable to narrow the search terms sufficiently. Perhaps somebody has the scoop?