Google Settlement May 5th Opt-Out Deadline Extended

Publishers Weekly reports today: "In a surprise move, New York Judge Denny Chin today granted a four-month extension to a group of authors, led by Gail Knight Steinbeck, delaying the May 5 deadline to opt out or object to the Google Book Search settlement to early September. Although the order had not yet been made public at press time, sources confirmed for PW that Chin had granted the extension."

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Update on Shepard Fairey Debate: Prominent Former NY Time Art Director Declares “Fairey is not a crook.”

Simul-post @ HipHopLaw.com

Author and blogger Steven Heller, a former art director at The New York Times and co-chair of the MFA Design Department at the School of Visual Arts, wrote a thoughtful critique of the criticism of Shepard Fairey’s use of artistic works in his artistic activism. Food for thought as the debate wages on.

Also check out the scathing 2007 essay by Mark Vallen, entitled “Obey Plagiarist Fairey,” which accuses Fairey of nothing more than a plagiarist and asserts “Fairey simply filches artworks and hopes that no one notices.”

I am following this Shepard brouhaha with great interest because we can (hopefully) gather great insight into how courts may approach and (perhaps?) alter existing copyright law as it relates to fair use. So stay tuned!

Was Street Artist’s Use of AP Photo to Create Obama Hope Poster “Fair”? A look at Where Infringement Ends and Transformation Begins

Lines have been drawn in the sand and the fight has commenced. A classic David and Goliath battle is set to take place in the U.S. District Court of the Southern District of New York between graphic artist Shepard Fairey and the Associated Press (AP). The spoils of this war? A definitive answer about what constitutes the proper interpretation of the law governing fair use of copyrighted works.

(Photo by the Associated Press)

The Law

Copyright owners control the exclusive right to, among other things, prepare derivative works. For example, a screenplay based on a novel is a derivative work. But use of a copyrighted work for purposes like criticism and comment is not an infringement but rather a fair use that does not require the permission of the owner. A court considers four factors to determine whether a use is fair; namely the purpose for the use, the nature of the copyrighted work, the amount used, and whether the use negatively impacts the potential market for the copyrighted work.

The Beef

It seems Fairey referenced to a photo owned by AP of then-presidential candidate Barack Obama to serve as inspiration for his artistic rendition of the candidate. That rendition became an iconic portrait of Obama and an unofficial but integral part of Obama’s grassroots message of hope and progress.

The problem is the photo on which the poster was based was taken by Mannie Garcia in 2006 on assignment for the AP at the National Press Club in Washington. Now a firestorm of controversy surrounds Fairey’s use. Was it fair or violative of AP’s copyright? The answer lies in whether Fairey’s portrait is sufficiently transformative to constitute a new work or whether it is merely a derivative of the photograph. The issue is whether Fairey has advanced the constitutional directive to “promote the useful arts” by adding something new or has merely leeched off another’s creativity.

Fairey, a Los Angeles-based “street” artist, is the modern day David in this story. And he drew first blood when he aimed his proverbial sling shot directly between the eyes of the AP and fired. Or, rather, filed. A law suit that is.

The term “street artist” is a bit misleading. Fairey did develop his craft and street cred at the underground level. But now he is graphic artist royalty, producing cover art for projects ranging from the Black Eyed Peas's album Monkey Business to The Smashing Pumpkins' album Zeitgeist and Anthrax's The Greater Of Two Evils. But Fairey’s artistry is more than creative. At its core, it’s political. His “Obey” campaign urges the observer to question obedience to social commands and the political status quo.

Fairey, well versed in the language of civil disobedience, is represented by Anthony Falzone of Stanford University’s Fair Use Project. His Complaint seeks a judgment declaring legal his use of the AP photo and an injunction against AP. Recently, AP counter-claimed asserting its infringement claim.

This is obviously shaping up to be one helluva battle! Stay tuned for updates. I will definitely be tracking this case.

Clearing Up the Confusion about Copyright

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Copyright 2009 Tonya M. Evans (info@legalwritepublications.com). Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, including author's copyright and contact information.
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This information is for informational and educational purposes only and should never replace competent legal advice from your legal representative.

We creative people are notorious for getting caught up in the process of creating, often at the expense of fully comprehending and appreciating the business side of our creativity. Because of our absorption in the creative process, little attention is given to the potential legalities we creative folks face before, during, and after the creative process.

But did you ever stop to consider the legal implications, rights, and obligations that may exist because of what you created?

For example, have you ever …

• guarded your manuscript, lyrics, photos or paintings, forbidding anyone to see them for fear that they might steal your brilliant ideas?
• mailed your creative work to yourself, believing your copyright interests were somehow protected?
• been confused about the difference between a copyright, trademark and patent
• pieced together a contract from contracts you found by searching the Internet? Or (worse yet) cut and pasted information (words, images or sounds) from the web and used it in your own work thinking it is "fair use"?

If the answer to any of these questions is yes, you may be in danger of jeopardizing your rights or infringing the rights of others. So read on. But one word of caution. This article is for informational purposes only. Do not use it in place of legal counsel by an experienced intellectual property lawyer. Get the facts from an expert. And FYI, your friend who watches a lot of Law & Order reruns doesn't count!

Clearing Up the Confusion about Copyright

A copyright protects an author's original artistic or literary work, whether published or unpublished. Under copyright law, the term "author" has a special meaning: the creator of an original literary or artistic work. Thus, the word "author" includes not only writers but photographers, singers, painters, sculptors – anyone who creates a literary or artistic work.

A Little Legalese Q&A

What can and cannot be copyrighted? Generally, copyright protects all original writing and artistic creations: letters, e-mail, poetry, manuscripts, songs, photographs, CDs, recordings of written works, musical scores, movies, sculptures, artwork, and even architecture. Book and song titles cannot be copyrighted. Ideas cannot be copyrighted.

What do you have to do to copyright your work? If you have created an original work in some tangible form – in writing or on film or tape or canvas, for example – then you don't have to do anything. You automatically own the copyright. But you should register it with the Copyright Office for further protection.

Can you use a picture you took of someone else in any way you choose? Although the photographer usually owns the copyright in the picture, the person captured in the picture may hold a competing interest: the right of publicity. This right, governed by state law, gives a person (usually a celebrity or public figure) the exclusive right to use his or her name, likeness, or other aspect of his or her persona for profit, and the right to prevent others from using those aspects without authorization. Similarly, the photographer may even be prohibited from making and distributing copies of a picture that captures a painting, sculpture, or other work of art if that work is otherwise protected by copyright.

Welcome to a glimpse of the complex universe of legal matters that matter to creative folks. Perfecting your craft is important indeed. Understanding the legal side of creativity is imperative. Honor yourself, your work and the rights of others by asking the right questions and getting the right answers. Don't leave your rights to chance. Empower yourself with information and take your creativity to the next level.

Visit http://www.legalwritepublications.com/ for more articles, resources and information and to purchase copies from our literary entrerepeneur series titles to empower YOU and help you take your literary and artistic passion to the next level!