Tag Archives: Copyright

The Fair Use Fairey

Oh, for the love of Hope in Copyright law… It seems that the Shepard Fairey debacle has finally reached a conclusion, and it’s not what many would have hoped for. From an artist’s perspective, they’re taking the easy way out. Not seeing this through to trial is cheaper, but now there is a lost opportunity to get some modern precedent from the courts about the fair use of digital media.  From a business perspective, though, I can see how they’re doing the smart thing, splitting the difference with collaboration.

So before I wax poetic about what they’ve concluded, this is the background to the story for those that haven’t been following along.

Associated Press files countersuit over Obama Poster
(March 11, 2009)

“The Associated Press has filed a countersuit against the artist Shepard Fairey , who created the famous “Hope” poster of Barack Obama, The A.P. said in a statement. Mr. Fairey, whose poster  is based on an A.P. photograph taken by Mannie Garcia in 2006, filed suit in February , seeking a declaratory judgment that would rule that the poster does not infringe on The A.P.’s copyrights, and enjoining The A.P. from asserting its copyrights against Mr. Fairey or his company, Obey Giant. In its counterclaim , filed Wednesday in the U.S. District Court for the Southern District of New York, The A.P. said that Mr. Fairey was “fully aware” that his poster was based on a copyrighted image, and that he “misappropriated The A.P.’s rights in that image”; The A.P. said that it made “every effort amicably to enter into a license and avoid litigation” with Mr. Fairey. In its countersuit, The A.P. seeks damages and injunctive relief on claims of copyright infringement.”

In the eventual lawsuit Ferry was seeking a “Fair Use” declaration to any issue of copyright infringement. Because he had so transformed the photograph into a new and independent work, this seemed like a no-brainer. The Associated Press, though, wanted Fairey to license the work so they could get the windfall of fame and money. Here’s a recap of the breakdown:

Fair Use Argument:
The AP Has No Case Against Sheppard Fairey
(Feb 8, 2009)
Johnathan Melbur explains the whole issue very well, so I won’t reinvent the wheel:

“The term “fair use” gets batted around a lot, often incorrectly, and so deserves some explanation. At the most general level, copyright law prohibits you from copying another person’s original creative work. That means you’re typically not allowed to create work using someone else’s original unless you pay that person. “Fair use” is an exception to this rule: it says that sometimes you don’t have to pay someone to use his or her original work. Whether you do–that is, whether your new work qualifies as “fair use”–depends on what, exactly, the original work is, how much of it you’re using, how you transform it, and whether your new work hurts the commercial market for the original. (Note that the issue has nothing to do with whether anyone thinks your use is “fair.”)

By far the most important factor is how you transform the original work–but, contrary to popular belief, the transformation that really matters is the conceptual one, not the physical one. ”

Of note, the Electronic Frontier Foundation also notes this claim, which seems to have fallen away by comparison to the fair use claim by Fairey. The idea is that the Means By Which that Fairey used to create poster was digital, therefore he violated the DMCA because there are digital protections. While this idea definitely has a bit of merit, it is a stretch.

AP invokes DMCA Against “Hope” Poster Artist
(March 3, 2009)

“The AP counter-sued  Fairey for violation of Section 1202 of the DMCA , which prohibits the removal of copyright management information (“CMI”) from copyrighted works or the distribution of works whose CMI has been removed. The DMCA question has received little attention compared to whether Fairey’s use of the photograph by AP photographer Manny Garcia is a fair use under copyright law  (or even whether Fairey took any creative expression  in the first place).

What’s the CMI that Fairey is accused of “stripping” from the original photo? Well, the AP complaint  is not entirely clear on this question. In one part of the complaint, AP alleges that all of its digital photos include digital metadata that Fairey allegedly “stripped” from the image. In another part of the complaint, AP seems to rely on Fairey failing to preserve the “copyright notice line” at the edge of the photo.”

But now the ABA is reporting this:

Copyright Dispute over AP Photo in Obama Poster Is Resolved with Deal to Collaborate

By Debra Cassens Weiss

“The artist who used an Associated Press photo of Barack Obama to create the hot-selling “Hope” poster will share rights to the image with the wire service.

Artist Shepard Fairey and AP announced today an agreement in principle to settle their litigation. The deal provides that Fairey and AP will share rights to make posters and merchandise with the Hope image, according to a press release  and an AP story . Fairey will also collaborate with AP on a new series of images that he will create based on wire service photos.”

They apparently have a “Deal to Collaborate”, which comes with undisclosed financial components that reeks of a settlement to my intuition. Funny thing about the small article, though, neither has given ground on their legal opinion. Nevertheless, Fairey will be working with the AP to produce a new series of photos (good for him), but says he won’t use any more AP works without obtaining a license…

So he fights a major battle for the right of Fair Use and then does a 180º?

If something is truly fair use, and you intend to fight for it, then that’s one thing. You get the support and admiration of a generation of creators who can be assured (with a legal ruling) that they have the freedom to transform popular culture into new mediums of personal expression. Not only that, but their won’t be a pay out for the many number of potential people who want in on a windfall.

Personally, I was hopping this could be another 2 Live Crew  moment which could give modern guidance to fair use.  (The Acuff-Rose case that involved 2 Live Crew is a classic demonstration of fair use by means of parody for music.) With Fairey, the issue would be an artistic transformation that so completely transforms the original picture that whoever owns said inspiration can’t come after you for a piece of your fame. That the transformation is so complete that it is its own piece, rather than a derivative work.
But logically, if you can’t afford to keep up in a lawsuit or it’s more profitable to just join forces with a corporate giant, then I guess you win in the end. You just don’t end up in the annals of (legal) history as  a hero of fair use. You’re just another (very profitable) sell-out, which seems to be the modern plague.
Entertainer at Law

Now I say all this based on the facts that I have. If anyone knows more about the minute details of what happened here, especially dealing with the negotiations between the two, feel free to chime in. The sentiment is the same, though, for the present outcome. No lawsuit, no ruling, no clear protection for future creators.

(c) Nicole L. M. Jurkowski 2011


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Privacy in Social Networking

So I ran across this article a week ago, and I’ve been stewing on what it means, both as an attorney and as a facebook user…. and it leaves me asking the question:

What do you think your rights are when it comes to “private” facebook posts? “Private” meaning that you have them selected as “friends only”.

So here’s the story…

Judge Grants Discovery of Postings on Social MediaLink

Plaintiff must give defendant access to private postings from Facebook and MySpace that could contradict personal injury action claims

Acting Justice Jeffrey Arlen Spinner (See Profile) of New York’s Suffolk County Supreme Court held that precluding defendant Steelcase Inc. from accessing Kathleen Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

The judge continued, “In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

In 2003, Romano fell off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained “serious permanent personal injuries” and had to undergo multiple surgeries, she sued Steelcase Inc., the manufacturer of the chair, and the chair’s alleged distributor, Educational & Institutional Cooperative Services Inc.

Among other things, she maintained that she had herniated discs, restricted motion in her neck and back, and “pain and progressive deterioration with consequential loss of enjoyment of life.”

However, Steelcase said in court papers that Romano’s claims were belied by public portions of her Facebook and MySpace profiles, which “reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”

For example, Steelcase said Romano’s public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

Steelcase subsequently served Romano with a notice for discovery requesting “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”

After she refused to provide this information, Steelcase moved by order to show cause to obtain access to Romano’s accounts.

(There’s more to the article, so feel free to follow the link to read it all.)

And here’s what I’ve been thinking:

The plaintiff in this case is attempting to keep secret from the defense some amount of information that they posted on Facebook. The argument is that the postings were made with an expectation of privacy; the settings of the plaintiff’s Facebook only allow a restricted number of people to view the information. (Later in the article, she is also arguing trying to protect her information because getting access to *all* of the information would necessarily include irrelevant information, and having such information revealed would be “harassing and intimidating”. Both good points – but no one likes having their information rummaged through to find the truth you’re attempting to hide, or to find evidence against the case your trying to build, so that’s another story entirely.)

However, because the information is relevant to the case, and because the New York laws on discovery of information are “liberal” – the defense has argued that they have a right to see the information. What this means is that they will have evidence from the plaintiff’s own “mouth” regarding some aspect of the case.

So with that in mind, let’s take a moment to understand privacy for the courts. Privacy, in it’s most sacred sense for the court, is that between two groups: 1) married couples (in order to maintain the stability of a marriage, which is good for society) and 2) professionals and their clients. In this case, between lawyers and their clients when speaking about the case. The idea is that in order of the lawyer to do their job properly, they must be able to maintain the utmost confidence that words spoken by their client are heard by no one other than the attorney (and relevant aides). One of the first things to destroy this confidentiality is to have “someone else” in the room. That someone else could be a spouse, a parent, or a friend and witness to the events. (My favorite example is that when a parent is bringing a suit on behalf of their child, the child and the attorney must talk in private, and the parent cannot be in the room – or the confidentiality is broken).

That being said, when you look at what the Plaintiff wants to protect – statements related to the case that he made under “self-regulated privacy” on a social media network – the shield of privacy is rather flimsy. Not only are you broadcasting information to your friends, but the legal expectation of the privacy of that information is zero to none. If you wouldn’t post pictures of yourself drinking because you know that potential employers will search the site, why would you post arguably damning information about a law suit you’re current involved in?

At this point, if you haven’t realized that anything you post on the internet, “private” or not, isn’t open to public consumption – then you have other problems.

But this one is certain: The warning from the courts (like the one in this article) is clear. Lawyers, especially young attorneys like myself, are savvy to the internet – and if you post information related to something “private”, then it’s only reasonable that we search for that information in fulfillment of our client advocacy. Now, while it remains unethical to be-friend you under false pretenses in order to gain the information* Link , it is certainly possible to get the information through discovery under a common-sense argument: If it was really that private, then they wouldn’t have posted it on Facebook.

Just Saying, Esq.

And just as an afterthought, since I was trying to focus on an expectation of privacy, Facebook was also claiming that they couldn’t provide the information, because:

Producing Romano’s profile without her consent violates the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena,” Facebook argued in court papers.

This I would be interested in, because gaining access to information stored online is a serious issue to pay attention to. We all have an expectation that in order to violate our privacy, anyone coming after it will have to go through getting a subpoena/etc. to access it. In fact, the opposite is becoming more true as some copyright-infringement bullies are making deals with or convincing ISPs that such information is best turned over voluntarily.

This is one of the goals of the proponents of a bill being shelved, momentarily, in our governmental process. It’s called “The Combating Online Infringement and Counterfeits Act (COICA)”. While being shelved, they are asking those who would be effected to voluntarily block websites “known” for “copyright infringement” – and completely bypassing due process and blindsiding net-neutrality.

For more information, check out the link: https://www.eff.org/coica . I should be posting more about this bill, and it’s potential effects, soon.


(c) Nicole L. M. Jurkowski 2010

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Copymark my Traderight

Today’s post is a very special one, close to my heart. Why? Well… usually, I’m very good about not “lawerying-out” on my friends or other non Intellectual Property lawyers. I don’t want to subject them to the full spectrum of why such and such is the law, and why things are they way they are. My friends didn’t go to law school and the non-IP lawyers didn’t study it for years like I did. I respect everyone’s right to bitch about the way things are or appear to be.


Any time anyone says “I really need to Trademark my poetry”, I can’t help myself. Instead of launching into some nice explanation, I just say “Copyright” in response. They say “Huh?”, and I come back with “You want to copyright your poetry.” At which point they indulge me and Miss Lawyer Pants explains herself.

So having done it more times than I can count – here’s the break down:


(First I start with the technical mumbo-jumbo.)

Technically speaking, a trademark is protection given by the US government over the mental association that a consumer has with the source of a product.

(My friends are generally smart enough to latch onto a few of those phrases, thankfully.)

So anything that creates a mental association with a product is considered a trademark.

(Then I launch into examples.)

Anything that you would consider a logo, a motto, or associated with a marketing / branding campaign is likely to be trademarked.

(Most people are nodding their heads by now, or offering examples of famous trademarks at this point – which is very good.)


(Now for the more difficult one.)

A copyright is protection over any type of artwork which can be and has been recored in some permanent medium.

(OR “Original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” But you know, that’s “lawyering out” a little too hard. We had a whole class in law school dissecting that one.)

It protects novels, songs, sculptures, choreography, and anything else you could think of creating.

(Then for the fun stuff.)

Under the Copyright Act, your rights attach whenever you create something: write it down, video tape it, write choreography notes for it, etc. But in order to actualize those rights…

(again, my friends are smart)

…you have to register the copyright with the Copyright Office. Basically, you give them a copy when you make it so that they have something for the Library of Congress (Cool!) and you have a registration that proves you wrote it.

(At this point, someone usually asks me about the validity of mailing yourself a copy of your work, and I sigh.)

The so-called “poor man’s copyright” is not a way to go about registering your copyright. The best it will do for you is act as one piece of evidence in a court case where you’re arguing that you wrote something first. Even if they stole the – let’s say, novel – from you verbatim, if they registered it they have what’s called “prima facie” evidence against you.

(Half the time, I then launch into the latin meaning of “prima facie”… but I won’t do it here. Lucky you, that’s for another whole caliber of posts!)

That means that the court will assume that their registration is valid, and it’s your (heavy) burden to prove otherwise.

(And at that point, you’ll wish you had just paid the $45 registration fee, because we lawyers don’t come cheap!)

So… getting back on point (yes, I am prone to tangents), A copyright is something that you have when you create a work of art, and it’s something you get a registration for to ensure that you have all the rights guaranteed to you for creating it.

(Those being: Reproduction, Derivative Works, Distribution, Public Performance, and Public Display)

And there my tangent usually ends, because they’ve gotten the point. And honestly, of all the lawyerly-ness that I can keep out of normal conversation, it doesn’t surprise me in the least that I can’t keep this quiet. I’m an educator. I learned all of this law stuff so that I could educate myself and other artists about what it means to have the law protect their work – and it is my end-goal to end up in a position where I do this for a living. This very conversation – except I’ll be doing it to many people at a time at conferences, or with particular clients who want to use that law for their own benefit.

That’s what I do. Or as I say about my own art, that’s what I can’t not do.

So, my friends, now you know that one copyrights their novel – and trademarks their band logo. Simple as that!

Miss Understood, Esq.

(c) Nicole L. M. Jurkowski 2010

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The Statute of Anne

Okay, sorry SCOTUS. I didn’t mean to be so harsh. I have great respect for y’all, and I understand that the current court is enforcing laws created by its predecessors. Some of your precedent I’m not too fond of, but that can be a later gripe. Right now I’ll just dream of the day when I will finally make it down to DC on my Lawful Good pilgrimage, and let it be.

England, however. You’ve got another thing coming. The whole idea of Copyright started in the way back 1709 in Great Britain, when – having gained the ability to manufacture the printed word – the competing publishing houses were struggling to obtain exclusive rights to those publications so that they could…. you guessed it, make money. I could wax poetic about the struggle of the houses and the history involved, a history that – given my background – I adored, but the point is made without it. The current culture of copyright is not our fault, nor is it our Congress’s fault or the corporations who can lobby to change the law. It’s the “fault” of a culture long gone that determined that because the technology of printing was expensive, in order to make it worthwhile to print, they wanted assurances – legal assurances – that their methods and product were protected. Queen Anne humored them, and in doing so, guaranteed a profit was to be made from consumer’s want for the printed material. (Oh, and by the way, the printing houses owned the manuscript, not the author. Funny how some things never change…)

So what does that mean for our modern culture of copyright?

In my third year of law school, second semester – I took an independent study course (Contemporary Issues in Modern Law, or something like that) that allowed me to put together a 15 minute presentation on any topic of law of my choice. My professor wanted it to be an accessible explanation of our topic, something akin to I would say to a friend at a party if they asked about the subject. Given that I had then and have since been cornered at numerous social events to talk with people about the Copyright Law and how I see it as both an artist and an attorney, I created this video. I hope you enjoy.

If you want to see the academic version of this video (Abstract, references, etc) or the paper I wrote for my Advanced Copyrights course – check my youtube pages – User EntertainerEsq. (I’ll get a link here eventually.)


(c) Nicole L. M. Jurkowski 2010

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