Great Podcast on Shepard Fairey v. The Associated Press

obama-image.jpgProfessor Doug Lichtman (UCLA Law School) has a terrific new episode of IP Colloquium.  The show involves a discussion of Shepard Fairey v. The Associated Press, a case involving a copyright dispute about the HOPE poster of Barack Obama.  I blogged about the case here and here.

Doug was able to get Mark Lemley (Shepard Fairey’s lawyer) and also Dale Cendali (the attorney who represents the AP) to come on the show and talk with him about the case.  This was the first time the AP spoke publicly about the case in the news media.  Also on the show is Ken Richieri, General Counsel at the New York Times.

Lawyers who listen to IP Colloquium podcasts can earn free CLE credit.

The podcast is well worth a listen — a great sophisticated discussion of fair use.

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6 Responses

  1. Adam says:

    Thanks for the pointer! Very interesting stuff. I think that Professor Lichtman gives insufficient weight to the practical difficulties of a licensing regime. If AP and Manion (sp? The photographer) didn’t have a proper license in place, what hope do even enthusiastic occasional licensors have?

  2. A.W. says:

    This is a perfect illustration of why i think that copyright law for photographs should be cut back significantly. basically unless the photo is staged in any way, no right.

    The fact is there is nothing special about this photo. There is nothing about it that 500 other photographers couldn’t have captured. Its the president of the united states posed a certain way. that is it. and chances are this was them catching him posed that way–as opposed to asking him to pose that way. so what did the photographer do? hit a button. And that should entitle him to anything?

    are we afraid that people will stop photographing the president if they can’t stop others from using that picture?

    and then to take this generic photo of the president and sue a painter who actually did something creative to add value, is just silliness.

    if i was on the jury at most the photographer/leech would get $1. if i was feeling charitable.

    And i say that as a man who voted for mccain.

  3. Adam says:


    According to Cendali, the photographer got an unusual angle by lying down, and (again according to her) Fairey had trouble finding the source image he wanted.

  4. Roger Ford says:

    Adam, I suspect that most of that unusual angle was in having the flag behind him — which, of course, Fairey did not copy.

  5. Alan says:

    oops. Fairey has now basically admitted to fabricating evidence in the lawsuit he filed against the AP.

  6. The common conception is that Fairey’s discovery shenanigans were tantamount to a game changer in terms of how the court will come out.

    Discovery abuse is completely different than the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse = sanctions but courts have already weighed in that bad faith isn’t really pertinent in fair use.

    And though as much as I think it’s the right course of action that the court should find fair use in this case, I don’t think it’s necessarily open-and-shut fair use on its face because of the effect on the market factor.