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Who's more unclean? (UPDATED)

By Intellectual Property Law, Esq.

Speaking of Shepard Fairey, he filed his answer to the AP's counterclaims this week. You can read it here. No real surprises. Probably the most interesting thing is a section (the "Fourth Defense," beginning on p. 21) arguing that the AP's claims "are barred ... by the equitable doctrine of unclean hands" because it "claims copyright ownership in, and makes commercial use of, many photographs that consist almost entirely of copyrighted artwork of Fairey and other artists without permission." Then they run through a bunch of artists whose works are depicted in photos included in the AP's image licensing database -- including Jeff Koons, Banksy, George Segal, Kerry James Marshall, Keith Haring, and Ron Mueck. In response, the AP issued a statement (see update) saying that "Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used." To which Fairey's lawyers at the Fair Use Project say: you've missed the point, which is really "very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way."

Bruce Boyden may have to add a tenth post to his series on the case.

UPDATE: A lot of confusion out there about this latest filing. Techdirt says "Fairey has filed new counterclaims against the AP," which isn't true. The LA Times's David Ng says Fairey claims "the AP itself violated copyright laws when it used a photo of the artist's 'Hope' poster without getting permission" and also "accuse[s] the AP of similarly infringing the copyright on works by Jeff Koons, Banksy Keith Haring and George Segal." That's also not exactly right -- as Fairey lawyer Anthony Falzone explains, "We're not alleging The AP's photographs infringe anyone's rights .... We simply contend The AP should have to play by a consistent set of rules. ... If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too" (emphasis added) -- but it's easy to see how people are getting that impression: by labeling the defense an "unclean hands" defense, Fairey by definition suggests that the AP has done something wrong. I suppose it's really more of a hypocrisy defense: a claim that the AP is complaining about something that they do themselves.

Full post as published by The Art Law Blog on April 16, 2009 (boomark / email).