Thursday, August 06, 2009

 

Fair Use? (an actual Intellectual Property posting)






This well known poster is the subject of Copyright litigation between the Associated Press and the artist that created the poster. The AP says the photo infringes its rights under U.S. Copyright law because the artist used a photograph taken by an AP photographer and turned it into a piece of art. The AP argues that it owns the underlying work and should be compensated.




The artist has many arguments, including the fact that Obama looks like that in many photographs, not just the one he used.




More importantly, he argues that he has done something transformative and created a new work, using the photograph as one ingredient. He is not competing with the AP and the market for news photographs of the President has not been affected in the slightest by the creation of this poster.




Fair enough. I tend to agree and hope the artist wins. He's relying on a Supreme Court decision in a case between Roy Orbison's publishing company and Luther Campbell, aka Luke Skywalker of 2 Live Crew. As you may remember, 2 Live Crew took the old Roy Orbison tune "Pretty Woman" and re-engineered parts of it into a rap tune. The Supreme Court found that Campbell and his fellow rappers had created something new and original and did not owe Orbison's estate any money.




So how about using this photo of Barack Obama smoking a cigarette taken when he was in college and about 19 years old:














And turning it into a poster in favor of the legalization of marijuana, as NORML has done:


Its certainly a new work. Are those defending the artist that created the iconic and Presidential-looking poster at the top prepared to defend this?
IPLAWGUY
(tomorrow, more French references)

# posted by IPLawguy @ 12:01 AM
Comments:
What you are talking about - what those guy did to the Roy Orbison thing? Isn't that called Sampling? Rappers get sued for it all of the time.
# posted by Blogger tydwbleach : 12:56 AM
 
Yes, if they use a tape of the original work, its usually an infringement. But if they rework the lyrics and the tune, which is what 2 Live Crew did, its OK
# posted by Anonymous Iplawguy : 12:59 AM
 
I've always understood that parody is "fair use" as is the 2 Live Crew photo. Am I wrong that at least a fact issue exists that the photo is a parody of the original photo?
# posted by Blogger Mr. CL : 1:27 AM
 
Firstly, I don't care for the picture in question.

But, it reminds me a bit of Andy Warhol's work of Marilyn Monroe and others. To me it is a defined style of artwork. I'm pretty sure that Warhol's painting was the result of repeated photo's of Marilyn presenting a certain pose. Given that, lots of people pose for pictures all the time and present the same profile image.

Was the Ap photographer the first one to photograph President Obama in that pose? Probably not.
# posted by Blogger Christine : 7:56 AM
 
I don't know enough about copyright infringement or intellectual property to properly comment on those issues, but I have come to recently understand that any picture of the president that isn't 100% positive is racist. So, there is that.
# posted by Anonymous RRL : 11:01 AM
 
Didn't Weird Al Yankovic make a parody of the Bangles' tune "Walk Like an Egyptian" and call it "Walk with an Erection?" I seem to recall that he did, that they sued, and that he won.

But the problem with the NORML ad is that they are implying that Pres. Obama (I like saying that!) supports their positions with regard to pot laws, while (to my knowledge) he does not.

Oh, and I hope the artist wins and the AP loses.
# posted by Blogger talltenor : 1:29 AM
 
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