Add Temple's David Post to the list of those who think the AP's claim against Shepard Fairey is "very weak." He cites two grounds: (1) "It's not an infringement .... [W]hat Obama looks like, and the tilt of his head, are not protected original elements of the photo .... And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. ... What he took was Obama's face, and the tilt of his head -- not infringment, to my eyes." (2) "Even if Fairey copied copyrightable elements of the photograph, he's got a very, very strong fair use defense. One critical part of the fair use inquiry is: did the defendant have a 'transformative purpose' in using the copyrighted original. That ... means 'did the defendant have a purpose significantly different than the purpose for which the original was created.' The AP photo was created for a purpose -- as a news photograph. Fairey's purpose was completely different -- he's making a political statement (duh!), and attempting to get voters to believe in the message of 'hope,' and all the rest. Courts have, in recent years, indicated that this factor is central to the fair use defense, and I think it gives Fairey a very strong case."
Meanwhile, Marquette's Bruce Boyden kicks off a series of posts about the case by looking at why Fairey chose to sue in New York: "In choosing the Second Circuit, Fairey’s lawyers seem to have chosen the devil they know, or at least can predict, over the devil they don’t."
