AP’s copyright complaint a likely loser

You can’t judge a copyright case ahead of time. But based on the facts, I’d say the Associated Press’s copyright complaint regarding the Barack Obama “Hope” poster is a loser. The AP is seeking compensation because the artist, Shepard Fairey, used a photo taken by the AP’s Mannie Garcia.

“Fair use” — the doctrine under which you can use a copyright-holder’s work without permission and without paying for it — specifically allows for works that are “transformative.” That is, if you build upon someone else’s work rather than simply passing it along unaltered, there’s a good chance the copyright police aren’t going to bust you.

That was the principle in Campbell v. Acuff-Rose Music Inc., a 1994 case in which the U.S. Supreme Court ruled that 2 Live Crew were in the clear with its parody version of Roy Orbison’s “Oh Pretty Woman.”

In 2001, the California Supreme Court ruled that an artist who made “Three Stooges” T-shirts was not protected by fair use specifically because they were not transformative — they simply used images of Moe, Larry and Curly without any alteration. It seemed clear from the court’s ruling that if the artist had had, say, printed “Bush, Cheney and Rumsfeld” (or “Clinton, Gore and Rubin”) on the T-shirts below Moe, Larry and Curly’s pictures, then he’d have been covered by fair use.

In the recent dust-up between GateHouse Media and the New York Times Co., GateHouse officials said they wouldn’t have minded if the Boston Globe’s Your Town hyperlocal sites included blogs that linked to GateHouse content. What GateHouse objected to was the Globe’s automated lifting of verbatim headlines and ledes — again, no transformative element.

The AP says it hopes its case Fairey can be settled without a lawsuit. I’m sure that’s true. The AP’s lawyers may be counting on Fairey’s paying money to make this go away rather than be subjected to negative publicity.

But if this goes to court, my money’s on Fairey.

Dennis, Callahan* and homophobia

People regularly tell me about the homophobic rants on “Dennis & Callahan,” on WEEI Radio (AM 850), but I rarely catch them in the act during the two- or three-minute increments in which I listen to them. I only stay when they’re actually talking about sports.

So let me pass along the BC Heights’ account of their loathsome shtick from earlier this week. As Adam Gaffin puts it: “I’d almost think Dennis and Callahan are closeted but … That would be an insult to gay men.”

*Update and correction: WEEI is so proud of the segment that it put the audio online. As it turns out, Gerry Callahan was out sick that day.

Wall Street Journal blew Madoff story

Financial journalist and blogger Gary Weiss has been paying close attention to the congressional testimony of thwarted whistleblower Harry Markopolos — and finds that Markopolos says he tried to interest the Wall Street Journal in the Bernie Madoff story three years ago to no avail.

According to Markopolos, Journal reporter John Wilke was ready to leap in, but could never get clearance from his superiors.

Sickening. (Via Romenesko.)

Why the Globe should acquire Universal Hub

The Boston Globe may be getting smaller, but it was just handed an opportunity to do something very intelligent. Let’s see if it can rise to the occasion.

Adam Gaffin, the chief impresario and co-founder of Universal Hub, just lost his day job as an online editor for the trade publication Network World. UH, if you don’t already know, is a “best of the blogs” site — an essential guide to nearly 1,000 local blogs in Greater Boston, all informed by Adam’s love of his adopted hometown and his puckish wit.

The Globe should hire Gaffin. I’ve been saying it to anyone who’d listen for quite a while now. Adam Reilly of the Boston Phoenix said it just last week. Yes, yes, the financially ailing Globe is in the midst of downsizing its newsroom by 50 people. But with fewer reporters, the paper is in more need than ever of someone who can intelligently aggregate content from a wide variety of sources. No one is better at it than Gaffin.

Recently, as you know, the Globe tried its hand at automated aggregation. It didn’t work out.

Gaffin’s ability to find what’s interesting, entertaining and important while holding down a demanding day job has always been awe-inspiring. If he were able to devote his full attention to it, Universal Hub would only become better. (In most respects, anyway. No doubt he would no longer offer his acidic observations about certain Globe columnists.)

Gaffin has been affiliated with the Globe in the past — for a while he wrote a roundup for the Sunday paper’s City Weekly supplement.

Do I have a conflict of interest? Yes, and thank you for asking, though it cuts the other way. Adam also runs the Boston Blogs ad network, which automatically places advertising on Media Nation and many other local blogs. Lately it’s been doing well enough to cover my Internet access fees. Were Adam to go to the Globe, I imagine we’d be left high and dry.

If the Globe is to reinvent itself, it’s going to have to act as a trusted guide to the best content out there. It should start with Gaffin.