The Obama Hope Poster Case

NPR has conducted a series of interviews with the interested parties. I include a link to the interview with law professor Greg Lastowka.

http://www.npr.org/templates/story/story.php?storyId=101187066

To clarify his discussion - the Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585 case never actually held 2 Live Crew's use was fair use, but instead suggested the use might be fair use, and sent it back down to the lower court for a determination. To quote: "Held: 2 Live Crew's commercial parody may be a fair use within the meaning of §107. Pp. 4-25. " Notice the word "may." http://www.law.cornell.edu/supct/html/92-1292.ZS.html

The four factors are not applied as willy nilly as might be suggested in the interview.

David Nimmer (2003), a leading intellectual property scholar, conducted a study on copyright cases decided between 1994 and 2002, and found 90% of the time, if three of the four factors are found in favor of fair use, fair use is affirmed. One cannot generalize his findings though, because he did not randomly select the 60 cases he examined, nor did he analyze all reported decisions. Overall, of the 60 cases he examined, 24 upheld fair use and 36 denied it (pp. 269-277). Nimmer also analyzed percentage correspondences between each of the four factors and a favorable determination with correspondences ranging from 42% correspondence to factor two, and 57% correspondence to factor four, in the context of overall favorable findings. He states across all four factors, there is a 51% correspondence to a favorable legal outcome.Nimmer, D. (2003). “Fairest of them all” and other fairy tales of fair use. Law & Contemp. Probs., 66, 263-287.

There's other copyright and non-copyright issues as well other than the "fair use" claim. (I have not read the case but according to NPR, the potential copyright infringer is the one who filed the case for some kind of declaratory relief - always problematic because whoever filed the case has the burden -- I always think of this as if you are going to start the problem, then you will have the burden of proving yourself correct).

If I were arguing against the AP, I’d assert that the Obama photograph is not original. Per copyright law, in order for an artifact to be copyright protected, it must be an “original work of authorship fixed in any tangible medium of expression.” http://www.copyright.gov/title17/92chap1.html#102

Also note that “fixed” means fixed with authorization. http://www.copyright.gov/title17/92chap1.html#102

Then there is right to publicity issues going against AP:
http://www.publaw.com/rightpriv.html

Then of course, I’d recommend the AP lawyers read chapter 7 of this book when it is published in 2 months.
http://www.sunypress.edu/details.asp?id=61789

:)