Joe Walsh, Republican Candidate for Congress, 8th District IL

Anyone who has spent any time at a political rally or watching video from such a rally on the evening news understands that music and politics go together.  Sometimes they mix well, for example when Bruce Springsteen is playing live for INSERT LIBERAL DEMOCRAT HERE, and sometimes they do not mix very well, almost like oil and water, for example when INSERT REPUBLICAN HERE uses music.  Yes, what I just said was over broad, but not by much.  If you take away certain country music stars who aren’t afraid to be blackballed and are willing to stand up for what they believe, you are left with a statement that is hardly over broad and probably far more descriptive.

My purpose for writing this is not to inflame, although there will likely be some “tolerant” liberals who object vehemently to my voicing such an observation.  Instead, the point is to set the table between what could become an incredibly interesting battle over copyright law and parody.  Joe Walsh (the Rockstar), known perhaps most for his days with the Eagles, is rattling the saber through his attorney, who seems to know little or nothing about copyright law, and is directing his ire at Joe Walsh (the Republican) who is a candidate for Congress in the 8th Congressional District of Illinois.

Hal Wegner

I guess I have finally made the big time!  Earlier today Hal Wegner’s e-mail newsletter was passed along to me by someone who is a subscriber to his list.  If what I was sent was in fact his entire newsletter for September 12, 2009, I should be expecting a royalty check in the mail.  It would seem that Hal’s newsletter, 13 pages in total, had about half of a page written by Hal, followed by 12 pages written by yours truly.  It would seem that Hal didn’t have anything to write about himself, so he chose to simply redistribute my original content without authorization.  I guess that means that Hal doesn’t know as much about copyright law or copyright infringement as one would expect from such a distinguished partner at Foley & Lardner.  Don’t get me wrong, I am honored that Hal thinks enough of my writing to simply take it to populate what he is passing off as “his” newsletter.  I would have thought that someone with such a distinguished background would understand that citation to a source does not absolve what is otherwise clearly copyright infringement.  And the worst part, while he copies lengthy passages from my writings he uses the opportunity to give me back-handed compliments that are obviously intended as insulting and belittling.  Well Hal, I have ignored you and your writings in the past, the lambasting of blogs in general and your arrogant and self righteous attitude.  Now you have my full attention.

Yesterday as I was watching news coverage of the thousands of tea parties that occurred all across America one particular sign caught my attention.  It was a poster of Ronald Reagan in a style reminiscent of the now famous Barack Obama poster created by Shepard Fairey.  You may recall that Fairey created a popular print made famous through the 2008 Presidential Campaign, which the Associated Press claims was an unauthorized copy of an AP photograph of then candidate Obama.  The Associated Press came forward with a statement explaining that it believed Fairey’s work was an infringement upon its copyright in the photograph, and then days later in a strange move Fairey sued the Associated Press for a declaration that he did not infringe the copyright in the photograph and that his use was a fair use. 

In a strange twist, Shepard Fairey, the artist of the popular print made famous through the 2008 Presidential Campaign, has sued the Associated Press in federal District Court in Manhattan seeking an order from the court that his use of the underlying photograph owned by the Associated Press is a fair use.  Mr. Fairey’s lawyer, Anthony T. Falzone, the executive director of the Fair Use Project at Stanford University says that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.”  Such an argument is quite surprising coming from a fair use expert, who must know that the great weight of authority is against him.  While determining what is and what is not a fair use is typically far from certain, it is my opinion there is no chance that a court will rule that Mr. Fairey’s work is a fair use, because it simply does not meet the requirements set forth in the relevant statute – 17 USC 107. If this is a fair use then virtually any derivative work would be a fair use and that is not a Pandora’s Box I see any court opening.

A Los-Angeles based street artist named  Shepard Fairey created what many would say was one of the most enduring images of the 2008 Presidential Campaign, a poster of Barack Obama with a stern and confident look gazing slightly upward and to his left.  The trouble with this poster is that is is based on a copyrighted photo taken by the Associated Press, and the Associated Press wants to be paid for the use of the photograph.  According to the Associated Press, the image has led to sales of hundreds of thousands of posters and stickers, and has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.  Fairey admits that his poster is based on the AP photograph, but claims that his use of this photograph is fair use and that the Associated Press is not entitled to any compensation.  Predictably, the AP takes the contrary view, saying that it was not a fair use and they they are entitled by law to protect the rights they own in the photograph.

Yesterday the Wall Street Journal reported that the Recording Industry Association of America (RIAA) fired MediaSentry, the Recording company it used to help it gather evidence for mass lawsuits it filed against people it claimed were illegally uploading copyrighted music. It would seem that the RIAA is finally coming to its senses and realizing that the way forward is not to use scare tactics or sue, but perhaps to accept the new technologies and maybe even embrace them.

On Monday, December 22, 2008, Gatehouse Media, Inc. filed what can only be charaterized as a ridiculous and frivolous lawsuit against the New York Times alleging copyright infringement by the New York Times because one of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by Gatehouse Media.  The complaint filed by Gatehousealleges that the Boston Globe is infringing its copyrights by taking the title of the article along with the first sentence of the article and posting them to its website.  Gatehouse acknowledges in the complaint that if someone visits the Boston Globe page in question, their Newton Page, and clicks on the title of the article they are immediately and directly taken to the Gatehouse page where the full article is available.