Is Shepard Fairey in the business of infringing copyrights or creating new transformative works?

That is a hard question to answer and I am not sure it can be answered in this brief blog post.  It is a question a judge will be answering at some point in the future in the Fairey v. The Associated Press complaint for Declaratory Judgment Injunctive Relief filed in the Southern District of New York case number 09CIV01123. 

The general facts are this:  Visual artist Shepard Fairey created what has become known as the "Hope Obamacon." Fairy used a picture of President Obama and created an abstracted graphic rendition of President Obama gazing up and to the viewer’s right, colored in a palette of red, white, and blue with the word HOPE.  The photo that is the basis of Fairey's work was taken by an AP freelance photographer, Mannie Garcia.

AP claims they own the copyright in the photo, Mr. Garcia claims he owns the copyright in the photo, and Fairey is claiming there has been either 1) no infringement; or 2) there has been infringement but he has a valid defense based upon "fair use" ...  a transformation from the photo to the final product. More...

If the beginning of 2009 is any indication, there seems to be a couple of new trends in copyright litigation.  The first trend is suits alleging copyright infringement against those who illegally access a copyright owner's website to view copyright content that they don't have permission to view.  Presumably, such illegal access violates the copyright owner's exclusive rights of display and distribution under the Copyright Act.   Examples of these claims can be seen in two cases:

• CoStar Realty Information sued Dumann Realty for copyright infringement in the U.S. District Court for the District of Maryland, alleging that the defendant’s managers illegally accessed the CoStar website by using another customer’s user information to access the site.  Through its website, CoStar provides its clients with real estate information by charging a subscription which costs hundreds of dollars a month.  In the complaint, CoStar argues that, by accessing its website illegally, Dumann’s managers engaged in the illegal distribution of CoStar’s content in violation of the Copyright Act.  Costar is demanding that Dumann pay $150,000 for each instance of infringement.

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On February 17th, in Associated Press v. All Headline News Corp., the U.S. District Court for the Southern District of New York denied defendants motion to dismiss several of AP’s claims, most significantly AP’s claim that defendant AHN was liable for “hot news” misappropriation and for violating the copyright management information protections provided under Section 1202 of the Digital Millennium Copyright Act (DMCA).  For those who have been living in a cave and are not familiar with the Associated Press (AP) -- it's an organization that --  through its employees, affiliates and subsidiaries --  engages in significant effort and expense to get access to news and to gather, report, package and transmit news stories throughout the world.  As stated in the court decision, All Headline News (AHN) scours the Internet for news stories and then either copies them or rewrites them for publication under the AHN banner.  Even though the stories are original AP content, AHN markets them as their own by, among other things, removing or altering the identification of the AP as author or copyright holder of the articles.  AP sued AHN for these activities and AHN moved to dismiss all the AP claims except the copyright infringement claim.  Although AHN prevailed in getting the trademark infringement and the Federal (but not state) unfair competition claims dismissed, the court refused to dismiss:  (1) AP’s claims of hot news misappropriation – holding that “[a] cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law;” and (2) AP’s claim that AHN violated Section 1202 of the DMCA by removing and/or altering copyright-management information – holding that there is no support for AHN’s position that this prohibition is limited to “the technological measures of automated systems” because no such requirement appears in the statute. More...