By Xeni Jardin at 8:35 am Thu, Jan 13, 2011
I am very disappointed. It was clearly a fair use issue, and we need some court rulings on these fair use issues. This would probably have been a president setting case.
I’m so disappointed that Shepard lied to his lawyers and to the court, and that the important fair use question he posed will not be answered.
In arguments with artist friends about this case (and I have had many), I have framed the problem this way: Suppose I am a person without drawing skills, and I want to make a poster for or against a presidential candidate (say, Ron Paul). Can I find a news photo of Ron Paul and trace it without fear of being sued? Or must I pay AP for a license in order to do so?
It simply doesn’t make sense to limit the right to create a political poster referencing the image of a political figure ONLY to those who can either A) create an image from imagination through drawing skills, or B) those who can afford to pay for a license. But this is what the AP was arguing, and it is why it is a shame to settle in this case.
This is the reason why *fair use* exists â€” as an exception to the monopoly granted by copyright law, in order to allow the continued flow of ideas and free speech.
By the way, it’s World Fair Use Day today! http://worldsfairuseday.org/
So what happens now if someone makes a Shepard Fairey-style “Hope” poster of one of Jeff Koons’s balloon dogs…?
Done â€” in celebration of WFUD!
I can guess why Shepard Fairey and AP would want settle out of court. Fairey gets out from under a devastating legal threat and AP can still it anyone it pleases with a SLAPP. AP and Fairey win, America is still in limbo.
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