Monday, September 14, 2009

"Why not let the market work?"

IP lawyer Ben Sheffner on Shepard Fairey v. the AP:

"I'm still clinging to my tentative conclusion that whatever Fairey copied was the unprotectable 'fact' of Obama's face (which of course would render the fair use analysis unnecessary). But I think this is a hard case, and I remain persuadable. ... [C]opyright in photographs presents some very difficult conceptual questions of how to separate idea and fact from expression. See, e.g., the Ninth Circuit's two opinions in Ets-Hokin v. Skyy Spirits, here and here. It may seem anomalous, but I think Fairey is actually on stronger ground with an 'I didn't copy protectable expression' argument than with a fair use defense. Assuming arguendo that he did copy the AP's (or Garcia's) protectable expression, I'm not terribly sympathetic with a fair use argument here. Yes, he added to the political discourse. But that's not an unlimited license to infringe. There's a vibrant market for licensing AP photos, and (though I may have missed it), I haven't read anything suggesting that the AP (or Garcia) wouldn't have granted Fairey a license at a reasonable price. This is not an example of criticism or parody, where the copyright owner wouldn't grant a license for mockery of his work at any price. Why not let the market work?"