Saturday, October 17, 2009

Hope..With Someone Else's Image - Nope!!

It's been a busy week on the intellectual property front.

First, David Young, chief executive of Lagardere SCA's Hachette Book Group, one of the country's largest book publishers pronounced that he would like to see legislation that would prevent the sale of books below cost. At issue is the price war between Wal-Mart and Amazon for some of the book titles expected to dominate the holiday shopping season. Wal-Mart is selling books below cost. Amazon is cutting costs and selling the digital versions for $9.99. The issue is economic. Independent booksellers and new writers will suffer when books are sold below cost. Wal-Mart appears to be paying the full price, the copyrights are being protected, and the authors are getting paid.

Then we have artist Shepard Fairey, who designed the famous Barack Obama "HOPE" poster, who, according to AP, admitted Friday that he didn't use the Associated Press photo he originally claimed his work was based on, a photo taken in April 2006 by Mannie Garcia, on assignment for the AP, at the National Press Club in Washington.

Mr. Fairey appears to have pulled in some serious money selling posters, autographed posters, and a whole range of stuff featuring his work. For more info on the emergence of the poster as a cultural icon see:

Ben Arnon: How the Obama "Hope" Poster Reached a Tipping Point and Became a Cultural Phenomenon: An Interview With the Artist Shepard Fairey

Mr. Fairey apparently had artistic amnesia when he said he didn't use the photo that featured a single image of then Senator Obama as claimed by AP intead saying used a picture with two images, one of Mr. Obama and another of actor George Clooney. By saying he used the picture with two people in it rather than the one with only Mr. Obama, he tried to claim he significantly modified the picture and was not infringing AP's copyright. He claimed that his work was covered under the fair use doctrine. But it now turns out he altered the single photo and added the word HOPE across the bottom.

His legal team lead by Mr. Anthony Falzone, executive director of the Fair Use Project at Stanford University -- withdrew from the case and said the artist had misled them by fabricating information and destroying other material. I can tell you this, when your lawyers quit on you because you didn't give them the straight story, it's not a good thing. When your lawyers are from the Fair Use Project and you misled them and destroyed material its a very bad thing.

Mr. Fairey earned much critical acclaim for his work, vandalism of public property aside (do you remember all those posters that showed up all over the place prior to the election?), Mr. Fairey earned quite a bit of money from his use of AP and Mr. Garcia's work.

In determining which of this week's intellectual property happenings is cause for concern, Mr Fairey wins. Mr. Fairey is the one who absconded with someone else's work without paying for it. The book publishers might be concerned that their product is being undervalued but at least it's being valued. In the case of AP and Mr. Garcia's work, they received no value. That's a greater concern.

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