The Lawyers Talk About Fairey v. The Associated Press
Doug Lichtman, Professor at the UCLA School of Law, recently talked with the attorneys for Shepard Fairey (Mark Lemley) and The Associated Press (Dale Cendali), along with Ken Richieri, an attorney for The New York Times, about the Fairey v. The Associated Press case and generally about fair use. You may listen to the discussion at the Intellectual Property Colloquium website.
One of the terms that the attorneys use during their discussion is “thin copyright.” Thin copyrighted works are those “where the quantum of originality is slight” and contain limited copyrightable subject matter. Beaudin v. Ben & Jerry’s Homemade Inc., 95 F.3d 1 (2d Cir. 1996). The protection afforded for thin copyrights is only against virtually identical copying. See Apple Computer Corp. v. Microsoft Corp., 35 F.3d, 1435, 1442 (9th Cir.1994).
Thin copyright was an issue in the case of Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000). There, photographer Joshua Ets-Hokin took a series of photographs of Skyy’s iconic blue vodka bottle for use in a marketing campaign. Skyy later hired two other photographers to photograph its bottle and then used the second set of photographs for Skyy’s advertising and marketing materials. Ets-Hokin sued Skyy for infringing his copyrights in hiCheck Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!