Sonia Katyal and Eduardo Peñalver -- authors of Property Outlaws -- make the case for Shepard Fairey as a heroic intellectual property "altlaw" -- i.e., someone who pushes the boundaries of what the law allows.
Sergio Muñoz Sarmiento responds here.
One question I have is: what if he loses? That is, Katyal and Peñalver argue that "if the law is to avoid being completely captured by the expansive claims of intellectual property owners, it needs more plaintiffs--and more cases--that enable courts to clarify the boundaries of fair use for the future." But doesn't that assume that courts will always clarify the boundaries in the direction or more fair use? Did Rogers v. Koons, for example, result in less expansive claims of intellectual property owners? What if (just for the sake of argument) the Fairey court holds that you can't make use of another's photo -- under any circumstances -- unless you get a license? That certainly would help clarify the boundaries of fair use in the future, but not in a way that makes the law less captive to the claims of IP owners.
UPDATE: Randy Kennedy in Saturday's New York Times: "Artist Looks to be Legal."
