There's a common phrase that goes "let the lawyers sort it all out," but even though that legal sorting phase normally makes my eyes glaze over, I have to admit that the latest twists and turns in the Shepard Fairey Obama "HOPE" poster case are particularly delightful. Here's the unofficial abstract:
• After much sleuthing, people finally figured out who took the photo that had been used for the poster. The photographer himself hadn't known, and was pleased to find out. There had been several almost-identical pictures discovered first, which were then discarded as possibles because of subtle differences. The value of the orginal work is admittedly minor, so any claim that the derivative work devalued the original is moot.
• The Associated Press discovered that the photographer had been working as a stringer for them when he took the picture, so it staked its claim to the rights and declared its interest in some of the profits the poster had earned (whether fishing for a settlement or standing up for creators' rights being a matter of interpretation). The photographer didn't remember signing a work-for-hire agreement, so he disputed the AP's claims to his work.
• Meanwhile, the artist was arrested, in a sort of publicity stunt by the police, on the way to an opening of his work. This isn't unusual or significant in itself, as guerrilla tagging is part of the artist's usual M.O. and he's been arrested and jailed for the same thing many times before, but it makes the news all over the world. The interesting question, which I haven't seen answered yet, is whether he was arrested for new or past acts. That is, did the police belatedly figure out who'd been putting up all those damned "Obey" posters around town because of the publicity surrounding the Obama poster, its artist, and his opening? If that was it, does that make the timing of the arrest essentially a political act?
• To the AP's surprise, Fairey's now gone to court to have his work peremptorily declared Fair Use (see link), so the AP can't pursue any further legal options. Meanwhile, the photographer continues to dispute the AP's claim to his work, and continues to profess himself pleased that Fairey used his photograph as the take-off point for the poster.
Whew. They might not write case law about this one, but it would make a hell of a New Yorker article.
UPDATE from Marco: "An interesting perspective on the possible local politics behind the arrest can be found here."