My friend & lawyer Chris Gatewood gives the details of two recent "fair use" cases that have made the news...
A Campaign Hangover Nobody Expected ’Äî Bipartisan Copyright LawsuitsObamicon and ’ÄúRunning on Empty’Äù Cases Keep the Art and Music of the 2008 Slugfest in the News
The Associated Press and artist Shepard Fairey are fighting over the ’ÄúHOPE’Äù poster Fairey created in support of Barack Obama’Äôs candidacy. Jackson Browne is suing the McCain campaign over its use of Browne’Äôs song ’ÄúRunning on Empty.’Äù
Obama and his campaign are not part of the copyright case between Fairey and the AP. That one is about Fairey’Äôs basing his very quickly famous poster on a photograph an AP photographer took of Obama at a press conference in 2006. Fairey, a big fan of Obama, colored his version of the Garcia/AP image in tones of red, white, and blue, with a style like an old propaganda poster. He placed the word ’ÄúPROGRESS’Äù on the first posters, and then later made several thousand with the word ’ÄúHOPE.’Äù
The AP found out about the origin of the Obama image, and decided that Fairey’Äôs use of its photo infringed the AP’Äôs copyright. Just after Obama’Äôs inauguration, the AP brought its demands to Fairey, and Fairey then brought the case to court, denying that he broke the law and asking for a judge’Äôs determination that he has not infringed the AP’Äôs rights.
Fairey is asking the court to find that his copying was ’Äúfair use’Äù under copyright law. The issue of fair use is based on four different factors that will have to be considered by the court, assuming the parties don’Äôt work it out themselves. The decision will depend on (1) whether Fairey’Äôs copying and use is commercial or not; (2) whether the work being copied is purely creative, as opposed to more factual; (3) how much of the work is used; and (4) the effect of the use upon the potential market for the work.
It is shaping up to be a close case, because while Fairey does not really seem to dispute that he used the photo and copied it to make his posters, he has something to say about all four of the fair use factors. On the commercial question, Fairey sold several thousand posters, but has said that he used the money to give away even more of them for free. The work being copied was a news photo, which may seem to a judge to be more factual than some other more artistic and less documentary works would be. Apparently Garcia’Äôs whole photo was not used, as the one referred to in Fairey’Äôs complaint in court also included actor George Clooney, seated beside Obama at the 2006 press conference. Finally, the extent to which the use by Fairey has impacted the AP’Äôs market for its photo is an open question. Fair use in the artistic context is much more often discussed than it is litigated. If the Fairey v. AP case moves forward to a court decision, it will be an interesting one to watch.
Now to Mr. McCain and his Campaign:
Before the election, Jackson Browne (himself a Democrat and a supporter of Obama) sued John McCain, the Republican National Committee, and the Ohio Republican Party for their use of his song ’ÄúRunning on Empty’Äù in a campaign commercial for McCain. Browne said that the use of his song was without a license and so infringed his copyright. He also said that it implied that he was endorsing McCain, which he was not. McCain asked the court to throw the case out, but the court recently declined that invitation, believing that Browne has a case that he can argue under both copyright and trademark law.
The Republican ad was used to criticize Obama’Äôs energy policy prior to an Obama campaign stop in Ohio in August. ’ÄúRunning on Empty,’Äù performed by Browne, played in the background of the ad. The ad was posted on YouTube, ran on TV in Ohio and Pennsylvania, and was picked up by news outlets.
Browne’Äôs problem as expressed in his court complaint was essentially two-fold. First, the use of his song and his voice in the commercial was without permission, so was copyright infringement. Second, he worried that the use of his song and his voice suggested that he supported and endorsed McCain, ’Äúwhen nothing could be further from the truth.’Äù
In opposition to the copyright infringement claim, McCain, like Fairey, alleged fair use. McCain filed a motion to dismiss the copyright claim on that basis, but the court denied that motion, finding that it was too early in the case and that without digging into the facts of the matter, Browne’Äôs case gets to proceed.
McCain also moved to dismiss the false endorsement claim, which was brought under the federal trademark law. The court denied that part of McCain’Äôs response as well, because it found that the trademark claim works against political speech as well as against commercial speech. McCain also challenged the false endorsement claim on First Amendment grounds, but the court decided that that claim also should be allowed to proceed.
The songwriter has not defeated the senator in the Browne v. McCain case, but McCain’Äôs initial responses ’Äî the litigation equivalent of ’Äúyou’Äôve got nothing’Äù ’Äî have been rejected and Browne’Äôs case will move forward.
Chris Gatewood is a lawyer who works on intellectual property and media law matters for designers, web developers, software companies, and other clients. His commentary here provides general information on legal topics, but it is not legal advice. Chris is on Twitter, @gatewood5000.__
Editor's note:
What's your take, who should win in these two cases and why?For more on the Fairey case check out this
Art Thereat article/video.
And this
critique from Milton Glaser in Print.
viaLabels: art, copyright, guest, laws, music
