Comments on: Great Podcast on Shepard Fairey v. The Associated Press

By: California Cases

California Cases — Mon, 08 Nov 2010 20:22:48 +0000

The common conception is that Fairey’s discovery shenanigans were tantamount to a game changer in terms of how the court will come out.

Discovery abuse is completely different than the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse = sanctions but courts have already weighed in that bad faith isn’t really pertinent in fair use.

And though as much as I think it’s the right course of action that the court should find fair use in this case, I don’t think it’s necessarily open-and-shut fair use on its face because of the effect on the market factor.

By: Alan

Alan — Fri, 23 Oct 2009 04:00:37 +0000

oops. Fairey has now basically admitted to fabricating evidence in the lawsuit he filed against the AP.
http://www.usatoday.com/life/topstories/2009-10-16-522883406_x.htm

By: Roger Ford

Roger Ford — Fri, 14 Aug 2009 00:52:00 +0000

Adam, I suspect that most of that unusual angle was in having the flag behind him — which, of course, Fairey did not copy.

By: Adam

Adam — Thu, 13 Aug 2009 14:52:24 +0000

A.W.,

According to Cendali, the photographer got an unusual angle by lying down, and (again according to her) Fairey had trouble finding the source image he wanted.

By: A.W.

A.W. — Thu, 13 Aug 2009 13:40:33 +0000

This is a perfect illustration of why i think that copyright law for photographs should be cut back significantly. basically unless the photo is staged in any way, no right.

The fact is there is nothing special about this photo. There is nothing about it that 500 other photographers couldn’t have captured. Its the president of the united states posed a certain way. that is it. and chances are this was them catching him posed that way–as opposed to asking him to pose that way. so what did the photographer do? hit a button. And that should entitle him to anything?

are we afraid that people will stop photographing the president if they can’t stop others from using that picture?

and then to take this generic photo of the president and sue a painter who actually did something creative to add value, is just silliness.

if i was on the jury at most the photographer/leech would get $1. if i was feeling charitable.

And i say that as a man who voted for mccain.

By: Adam

Adam — Thu, 13 Aug 2009 02:18:08 +0000

Thanks for the pointer! Very interesting stuff. I think that Professor Lichtman gives insufficient weight to the practical difficulties of a licensing regime. If AP and Manion (sp? The photographer) didn’t have a proper license in place, what hope do even enthusiastic occasional licensors have?