and he calls Baxter Orr a “BOTTOM FEEDER”…. please

If any profits were made (even if then delivered to any not-for-profit cause, not sure if this is even an element) then I imagine this would NOT be considered Fair Use of the AP image.

Also, does anyone have information as to how to locate the estate of Andre The Giant to confirm whether or not they were ever asked or granted permission to Fairey to exploit both the derivative image of Andre’s face, as well as his inherent trademark/branding rights related to his performance name(s) and other branding elements?

Below is the text from the http://www.copyright.gov site located at http://www.copyright.gov/fls/fl102.html. We may also wish to read the actual text of the copyright law related to what constitutes Fair Use…would be curious to read the lawsuit Complaint (should be public record once we know in which court the lawsuits were filed) to see how Fairey claims “Fair Use” given the reports of profits generated by the merchandise. Is he considering this lawsuit some sort of perverse (and not very innovative) “performance art” to bolster his other publicity stunts? Masking this as protecting the rights of creators to free expression is horsesh*t especially if indeed he is exploiting others for his own benefit.

If anyone has tips on where to unearth the lawsuit Complaint documents, please share so we can review how they’ve crafted this lawsuit. Doesn’t make sense to define this as “Fair Use.” Oh, and regarding the source image being a photo and Fairey’s derivative work being a graphic/design work, that doesn’t protect him. There is a copyrignt infringement case in which fine artist Jeff Koons bought a postcard of a photo hf some puppies and commisioned sculptors to completely copy the puppies into a 3-d sculpture for profit. If I remember correctly, Koons lost the case and it was considered a copyright infringement even though it crossed lines from photo to sculpture. Intent of the infringer is also crucial in these cases.

Let’s also check whether Fairey actually registered his Obey Giant image(s) with the U.S. Copyright Office. If not, then it’s bark without bite. He would not be able to sue another artist unless and until he has a valid copyright registration. If he cannot own the copyright to his ripped-off Andre image, then he may not be able to enforce his copyrights in any cease and desist letter. And, there is indeed the right to parody, under which Fairey himself has or will most likely seek protection for his own plagiarized/derivative works.

I would love to see a comparison of each of Fairey’s images showing his source imagery and his resulting work, and whether written permission was granted by the owners of the source images throughout his career, to establish whether or not he has been operating legally and ethically these years we’ve been seeing these images.

Please read the Fair Use text from the Copyright Office below and let me know if you agree that his HOPE image can at all be considered “Fair Use.” Again, if anyone has a lead on where the public-record Complaint is for this lawsuit against the AP, we would love to read how Fairey and his attorneys are claiming their use is “Fair Use” given that they are not being used as “educational purposes or for critical review” and so on…not to mention that this is being sold as merchandise for-profit. At the very least, it would seem that Fairey should be liable to the AP or copyright owner for actual damages – the amounts he made off of the image he used in the HOPE images. Going one step beyond that, if the AP has registered the image with the U.S. Copyright Office and can prove he infringed it, they may be eligible for a statutory $150,000 for each infringing use (different merchandise type, different dates new prints were re-issued, etc.) against Fairey without having to prove the actual money he made off the image – that would be the benefit if the AP registered the image, so that they wouldn’t have to pay endless legal fees to unearth all his profit records, etc. etc.

Okay, let me know if anyone here’d like to follow up on the Andre the Giant family/estate and whether permission as ever requested or granted to Fairey, whether the lawsuit Complaint exists online anywhere so we can read how they’re claiming this can qualify as “Fair Use” and whether the AP has gotten to the “discovery” stage of the lawsuit wherein they have the legal right to Fairey’s bank statements and sales records to determine whether indeed profit was made on the HOPE image.

Your thoughts welcome – thanks for covering this! Would love to hear from the artist who got targeted for that Cease and Desist letter by Fairey as well….thanks!

– from: http://www.copyright.gov/fls/fl102.html –

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Revised May 2009

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