Fairey, who was then represented by Anthony Falzone, Executive Director of Stanford Law School’s Fair Use Project, claimed that his use of the photograph came under the “fair use” exception and thus permission was not required. Fair use hasn’t often been applied to photographs, so the issue seemed likely to become a fascinating test case, especially after Fairey filed for declaratory judgment against the AP in February 2009 seeking a determination that his use came under the doctrine of fair use.

The case was further complicated by the claims of the original photographer, Mannie Garcia, who was working under contract for the AP when he took the photograph; Garcia claimed that the copyright for the photo belonged to him, not to the AP. Garcia’s latest position in the legal skirmish is as a defendant, counterclaim plaintiff, and cross-claim plaintiff/defendant.

At the time, it seemed that Fairey had a chance of winning. Fair use disputes are resolved by a four-factor test; the four factors are:

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

The first factor relates to the use of the original material; by cropping, colorizing, and reorienting Obama’s posture from the original photograph, as Fairey claimed he’d done, it’s probable that a court would have deemed Fairey’s use sufficiently transformative to satisfy that factor.

The second factor concerns the distinction between fiction and fact; since Fairey copied from something factual (a photograph from a news event) rather than something fictional (for example, a novel), it’s possible that he would have succeeded on this factor as well, since only fictional works can be copyrighted. However, the Supreme Court ruled in Feist Publications, Inc. v. Rural Telephone Service, Co., 499 U.S. 340 (1991), that only a “spark” of originality was required in order for something to come under copyright protection, it seems probable that the original photograph would have been protected by copyright. Fairey would thus have faced a tougher battle on the second factor compared to the first.

The third factor presents one of the most interesting elements of the case. The less someone uses of the original work, the better case they have for fair use. For example, if a musician copies only a few seconds from six minute song into a remix, she’ll have a stronger basis for fair use than if she uses five minutes. Since Fairey supposedly cropped out George Clooney from the original photograph, he had a fairly good position on this factor. As the LA Times noted, how often does George Clooney get cropped out of a photograph? The fourth and final factor also seemed to weigh in Fairey’s favor. Fairey’s poster did not impede the AP from selling the rights to the original photograph to newspapers and other media outlets, especially given that the photograph was over two years old by the time Fairey began selling prints of it.

Last month, the entire case took on a dramatic twist when it came to light that Fairey had lied about which photograph he’d used for the HOPE poster. Instead of using a photo of Clooney and Obama, Fairey admitted that he had used the photograph that the AP had always claimed he’d used (a closeup of Obama) and that he had deleted images and submitted false ones in connection with the lawsuit. As a result, Falzone and the Fair Use Project declared their intention to withdraw from the case, as they couldn’t ethically represent Fairey after his lies came to light. Falzone noted that he still believed in the merits of Fairey’s case; the AP, however, countered that Fairey’s admission undermined his fair use argument and that they would block the withdrawal of Falzone and the Fair Use Project. The Fair Use Project’s proposed replacements are Geoffrey Stewart, a partner at Jones Day, and William Fisher and John Palfrey of Harvard’s Berkman Center for Law and Society.

Crucially, Fairey’s admission impedes his claims under the third factor of fair use, as he did not modify the original photograph as much as he claimed and took a larger proportion of the original work. Still, Falzone’s support of Fairey’s claims even after exiting the case doesn’t seem naive; it’s conceivable that a court could still find fair use. But as many have noted, it’s hard to seek a defense that uses the word “fair” when you’ve lied about the case. The case is still going forward, but Fairey’s position is far weaker than it was a few weeks ago, though the LA Times ran an editorial this week that supports Fairey’s claims on the merits. But what could have been a fascinating test case for the status of fair use in copyright law has been muddled as a result of Fairey’s deception, and it remains unclear what this could mean for other artists working in similar ways.

Browne filed a lawsuit against McCain, the Republican National Committee, and the Ohio Republican Party over the unauthorized usage of Browne’s signature song “Running on Empty” in a commercial criticizing the energy policy of then-Democratic Presidential candidate Barack Obama.  The commercial, which aired on television and YouTube.com, featured parts of the sound recording of “Running on Empty” throughout.

The causes of action listed in Browne’s complaint, filed in U.S. District Court in California, included copyright infringement, trademark infringement, and violation of the California common law right of publicity.  The defendants’ motion to dismiss, relied, amongst other things, on a fair use defense against Browne’s copyright claims and a political speech exemption against the trademark claim.  The motion to dismiss was ultimately denied.

The lawsuit brought to light the clash between intellectual property rights and fair use as well as the First Amendment in the context of political speech, as political campaigns turn more and more to popular culture references in the media to reach out to voters.  McCain was also opposed by artists for his campaign’s use of popular music from the Foo Fighters, Heart, and John Mellencamp.  Even Obama ran into trouble during his campaign, when soul legend Sam Moore (of “Soul Man” fame) asked Obama to stop using one of his songs.

Last summer, a federal district court ruled, in Tiffany v. Ebay, that online marketplace eBay was not liable under trademark and unfair competition law for facilitating the sale of counterfeit items on its website. The court noted that it is a “Trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring.” Some U.S.-based commentators praised the decision; others were somewhat more critical. Few, however, commented on the way this decision has the potential to the put the U.S. directly at odds with several key European Union countries on contributory liability for trademark violations.

While this decision represents a victory for eBay and other online marketplaces in the United States, courts in other countries have shown less sympathy for eBay. Especially in European jurisdictions decisions have tilted in support of trademark holders rather than the operator(s) of online marketplaces. Several judicial decisions handed down by countries in the European are opposite to the decision handed down in Tiffany Inc. Two important decisions highlight the conflict at hand. On June 30, 2008, a French court ordered eBay to pay 61 million dollars in compensation to LVHM for allowing the sale of fake merchandise on its website. Just a month earlier, another French court had ordered eBay to pay Hermes a compensation of 20,000 Euros for the sale of counterfeit merchandise on its website. And both of these decisions come in light of decision by a German appeals court in April, 2008 against eBay on the same issue. The German appeals court ruled eBay had to take preventive measures against the sale of fake Rolexes on its website. Both the French and German courts seem to have taken the position that eBay has a responsibility to prevent the sale of counterfeit goods on its website, but the U.S. court has taken the opposite position, that the burden falls onto the holder of the trademark. In an increasingly global marketplace, this conflict will have to be resolved.

Image The Search by Robert S.. Used under a Creative Commons BY-NC-SA 2.0 license.

On October 28, 2008, Google reached a settlement with The Authors Guild and the Association of American Publishers (AAP) after two years of negotiations.¹ The agreement would resolve the class-action lawsuit brought by the Authors Guild and book authors against Google, in addition to another lawsuit brought by five publishing companies as representatives of the AAP’s membership.² Although Judge John Sprizzo has given preliminary approval, the settlement is still subject to final court approval following a June hearing, which “will determine whether the agreement is fair, reasonable, and adequate.” ³

According to Google, the agreement would provide increased access to out-of-print books, additional ways to purchase copyrighted books online, institutional subscriptions, free access from public and university libraries in the United States, and compensation and improved control to authors and publishers.⁴ This last would be made possible by the Book Rights Registry, a new development that is one of the more important aspects of the settlement.⁵

Under the settlement agreement, Google would pay $125 million to be used to create the Book Rights Registry, cover legal fees, and resolve existing claims.⁶ The independent, non-profit Book Rights Registry would distribute “payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers” and “locate rightsholders, collect and maintain accurate rightsholder information, and provide a way for rightsholders to request inclusion in or exclusion from the project.”⁷

The new Registry would be similar to the American Society of Composers, Authors and Publishers (ASCAP), which monitors and compensates individuals in the music industry.⁸ As one blogger put it in a somewhat sarcastic post, Google and the Registry are bringing “the Dewey Decimal System into the digital age.”⁹ The Registry will keep track of books and inserts, as well as the respective authors, publishers, and other rightsholders.¹⁰

The Registry will do much more than serve as an information depository, though; it will also be responsible for contracts and payments. The settlement provides for a board of directors with equal representation of the author sub-class and publisher sub-class.¹¹ A majority of the directors, including at least one from each sub-class, is required for the Board to act.¹² This will presumably help to protect both the authors’ and publishers’ rights in their dealings with Google, and possibly other providers somewhere down the line.

Google and the Registry will determine the subscription prices.¹³ This basically amounts to Google proposing prices, and the Registry board approving or denying, thus acting as a check on Google.¹⁴ The settlement claims that Google and the Registry will attempt to base subscription prices on two factors: “the realization of revenue at market rates for each Book and license on behalf of Rightsholders” and “the realization of broad access to the Books by the public, including institutions of higher education.”¹⁵ These are worthy guidelines if followed. Ideally, the first goal (and the cost of corporate profit) will not make the second impossible. The legal databases provided by LexisNexis and Westlaw are examples of digital libraries that are unavailable to the masses due to high cost.

Rather than litigating the fair use question at issue in these lawsuits, Google settled for a large sum of money. This means that the legal standard is no better understood, and the price for using this material is high—$125 million in this case. Microsoft already bowed out of the competition for creating a searchable library database last spring.¹⁶ This could make it far more difficult for others interested in creating digital libraries or databases to acquire rights to the media, perhaps harming some of the smaller scale enterprises that have recently been appearing on library websites.¹⁷

What does all of this mean for the average Google user? Whether or not this settlement and the new Book Rights Registry will make a real positive difference for individuals and libraries across the country is somewhat uncertain. Search capabilities will definitely increase, which is Google’s main goal behind this expensive effort. But will people have access to content as they would at a library, or will the Google Books site simply become a mammoth bookstore, crowding out Amazon and other on-line retailers? The settlement only provides for public libraries to have one terminal where users may, one at a time, view out-of-print books and print them, for a per-page fee of course.¹⁸ This does not appear to be an exceptionally user friendly model.

Whether or not institutions will subscribe to this database and individuals purchase books will depend on multiple factors. Two of the most important may be price and ease of use. Even if an institution purchases a subscription or an individual buys a particular book, they are still restricted to printing or viewing the book on the website.¹⁹ This is rather limiting and may make sense only when discussing out-of-print materials. Hopefully Google will use some of the creativity they frequently display, and work with the Author’s Guild, and AAP to engineer a system that will be accessible to everyone.

It may be time to quit that nasty BitTorrent habit. On October 13th, President Bush signed into law the PRO-IP Act (Prioritizing Resources and Organization for Intellectual Property Act of 2008), which greatly increases the power of the federal government to protect copyright and trademark owners.
Some of the big changes coming down the pipe:

1. A court can take away your computer if you download illegally – §102 of the Act specifies that during a civil action, a Court may order the impoundment of all copyrighted material and the means by which the material can be reproduced, as well as all documentation regarding the creation, sale, or receipt of these materials.
2. Counterfeiters could pay up to $2 million in damages – §103 raises the range of statutory damages available considerably, with the new maximum fine being $2 million, doubling the current $1 million max.
3. Harsher criminal penalties for infringement – §205 punishes infringers with jail time (up to life) if someone is seriously injured or dies as a result of the trafficking of counterfeit goods or services.
4. There will be an “IP Czar” – §301 creates the position of an Intellectual Property Enforcement Coordinator (appointed by the President and confirmed by the Senate), who will be in charge of an interagency intellectual property enforcement committee and will help facilitate coordination between agencies.

The law originated in the House last December (introduced by Rep. John Conyers (D-MI)), and passed in the House by a very large margin in May. A similar bill was introduced in the Senate by Senator Patrick Leahy (D-VT), and passed in the Senate unanimously and the House by a large margin (90.3% by both Democrats and Republicans). While many criticize the PRO-IP Act as harsh, the version that Bush signed has actually been toned down considerably, as previous proposals included much higher statutory damages, creation of a new federal agency, and giving authority to the DOJ to sue on behalf of copyright holders.

Image Pirate Mona by Kim P. Used under a Creative Commons BY-NC-SA 2.0 license.

As expected, the RIAA and MPAA are quite pleased with the new law. The National Association of Manufacturers is happy too, and President John Engler calls the PRO-IP Act “a shining example of a bicameral, bipartisan effort to advance legislation to protect our consumers, jobs and businesses from intellectual-property piracy and counterfeiting.” Copyright infringement and counterfeiting are serious problems, and this Act represents a major step by the government in protecting IP owners. The RIAA and MPAA have been particularly concerned about P2P networks for several years, and if this Act is strongly enforced, it will give owners more tools for suing infringers and provide more federal oversight. In a tough economy like this, the Act can serve to bolster U.S. businesses, which lose $200-$250 billion and 750,000 jobs annually due to infringement and counterfeiting (or maybe not).

Not everyone is happy about the PRO-IP Act. Public interest groups like the Electronic Frontier Foundation and Public Knowledge criticize that the Act “amplifies copyright without protecting innovators or technology users” and “adds more imbalance to a copyright law that favors large media companies.” These groups are worried that the Act is unnecessary, will curtail legitimate fair use, and impose fines and seizures that are much too severe. Even the DOJ expressed its concern about the creation of an “IP Czar” and felt that such an enforcer would undermine the DOJ’s independence.

It is hard to say at this point what will become of the PRO-IP Act. Obviously a lot will depend on who is to become the first “IP Czar”, which will likely be decided by the next president. Obama’s campaign plan already included the creation of a “Chief Technology Officer”. This Business Week article speculates that possible candidates for the position include Vint Cerf, Steve Ballmer, Jeffrey Bezos, Ed Felten, while the Wall Street Journal shows that some believe Google Chief Executive Eric Schmidt wants the job. One factor that may influence the decision is Obama’s recent battle against major copyright holder NBC, which took down a popular YouTube video mocking a McCain victory. His official stance is that there is a “need to update and reform our copyright and patent systems to promote civic discourse, innovation and investment, while ensuring that intellectual property owners are fairly treated.” John McCain also seems to have a personal sympathy for fair use of copyright materials, as evidenced by this letter from his campaign to YouTube, which bemoans the “overreaching copyright claims” that have “silenc[ed] political speech” and wants to give campaigns special treatment. Ironically, the letter is dated October 13, 2008, the same day that Bush signed the Act. McCain also openly “supports efforts to crack down on piracy, both on the Internet and off.” While it seems like Obama may be more friendly to reform, keep in mind that it was Democrats who initiated the bills in both the House and the Senate. Obama will likely present a more “fair use”-friendly “IP Czar”, but the real question may be if he or she can get past the Senate.

Introduction

Millions of viewers have tuned in to watch the presidential and vice-presidential candidates debate pressing issues before heading to the polls earlier this week.¹ A growing number of Americans, however, get their political information from online sources and search YouTube, political blogs and other non-traditional sources for debate coverage. In this most recent election, but even more so in those to come, the issue of who has what rights to use, remix, and distribute that content has been and will be an essential concern of participatory democracy. and upcoming elections.

Some networks have sought to encourage political participation and voter awareness by making their debate footage freely available to the public despite potential copyright violations.² But not all networks chose to make their debate footage available for widespread dissemination. Fox News was heavily criticized when it sent cease and desist notices to candidates using debate clips from the Fox-sponsored Republican primary events.³ Senator McCain, in particular, faced the brunt of Fox’s wrath when he aired a television ad entitled “Tied Up” that was approximately 30 seconds in length, most of which came from a Fox debate, as evidenced by the Fox logo clearly visible in the lower corner of the screen.⁴ Although Fox News claimed exclusive rights to the footage, Senator McCain argued that his use of the clip was within his fair use rights to his own statements during the debate.⁵ Since the issue was not litigated, but still is of primary importance for later debates, this post will discuss whether the “fair use” exception can be invoked to justify using both small and substantial portions of the debate in later reproductions.

Is Reproducing Copyrighted Debate Footage a “Fair Use”?

When confronted with legal action, Senator McCain argued that his use of the 30 second clip of Fox News footage constituted a fair use of copyrighted material as provided for in 17 U.S.C. §107. This section of the Copyright Act details the fair use limitations on exclusive copyrights, as determined by an analysis of four factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”⁶

The fair use exception represents a balance between the copyright owner’s exclusive rights and the public’s interest in the wide availability of information that affects “areas of universal concern.”⁷

Where, as here, the “purpose and character of the use” is primarily political in nature, courts are inclined to classify it as a fair use. Important first amendment implications cannot guarantee a fair use defense, but “when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use.”⁸ Likewise, because the original work is political and made for the benefit of the public, the second prong also counsels in favor of fair use.⁹

Although the contested McCain advertisement used just a small portion of the Fox debate footage and so it would likely have no problems with the third and fourth prongs of the fair use guidelines, individuals that post more substantial portions of a debate may run afoul of those factors, as well. When the 11th Circuit evaluated whether the fair use defense allowed the duplication of entire news stories (albeit for commercial sale), the court concluded that the substantiality of the copied segment and the commercial purpose of the copy nullified the defense even though the news station did not “actively market copies of the news programs” for its own profit.¹⁰ Posting substantial portions of the copyrighted debates may be problematic if based only upon the fair use exception to the exclusive rights of the broadcasting networks.

The Public Domain as an Alternative to Fair Use

Because of the legal uncertainty over whether fair use protects candidates and the public when posting debate footage, a number of online activists across the political spectrum (including Professor Lessig of Stanford Law, Craig Newmark, founder of Craigslist and Jimmy Wales, founder of Wikipedia) are calling for networks to release their footage to the public domain.¹¹ According to this bi-partisan group, the presidential debates are held for the benefit of the public, and so “the right to speak about the debates ought to be ‘owned’ by the public.”¹² Since the candidates themselves largely control the terms under which they debate, Professor Lessig believes that they should take a more direct stand on the issue and insist that the networks release the debate footage.¹³ Although networks certainly have an interest in maintaining their copyrights to political debates, perhaps Professor Lessig is correct in his observation that “[c]opyright, in my view, is essential and important, in some places. This isn’t one."¹⁴