Shepard Fairey's last name is kind of ironic being that he claimed fair use, even though he just recently confessed to concealing his mistake by submitting false images and deleting others.
Tip #1-If claiming you are guilty of stealing someone's copyrighted work based upon "fair use" at least be honest about which work you used.
Videos, movies, music again protected by copyright laws. It is illegal to steal or to use certain intellectual property or artistic property without explicit permission of the owner of that property. Yet it happens all the time, and very little thought is given to it. The reason the laws are not enforced because it is virtually impossible to enforce and is only enforced when something occurs on a grand scale.
The first method, known as the subtractive method or the abstraction/subtraction approach, first identifies what parts of the work are protectable. The method then directs the finder of fact to eliminate, or subtract, those elements that are not protectable. The remaining elements are then compared to the allegedly infringing work to determine whether substantial similarities exist.
The second method, known as the totality method or total concept and feel approach, leaves the works in their entirety when doing the analysis. In particular, the entire copyrighted work is pitted against the allegedly infringing work to determine whether a substantial similarity exist. Clearly, it is the goal of the defendant to show differences between the two works in an effort to avoid liability.
Tip #2-Don't lie to your copyright lawyer!
Despite his loss of credibility, the case brings to the front and fore a major issue in copyright law certain to affect photographers, composers and artists whose works are used in subsequent content. Subsequent users claiming fair use must show their use of the underlying work was transformative, namely the new use adds value to the original and the prior work is "transformed in the creation of new information, new aesthetics, new insights and understandings." 4-13 Nimmer on Copyright § 13.05.
Therefore, while ownership of a valid copyright and actual copying are two factors that also require particular analysis, oftentimes the misappropriation element is the determinative factor in a copyright infringement matter. Copyright holders are well-served to fully analyze the extent of misappropriation just as defendants to a copyright infringement lawsuit should constantly be looking to identify elements that negate a finding of substantial similarity
Resource Author Francisco Rodriguez Higueras
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