[Note for blog posting: This article is a good example of where a transformative use is applied and justifiably could be determined as Fair Use. The image was changed to add a promotional message, as well as colorized to reflect patriotic image, the flag in the background was removed and other components added. Obama is Obama, whether this angle of a photo is made or any other.] 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.
The AP’s director of media relations, Paul Colford, has said:
The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission. The AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.
On the other side, Fairey’s lawyer, Anthony Falzone, who is the executive director of the Fair Use Project at
Stanford
University
and a lecturer at the
Stanford
Law
School
, says:
We believe fair use protects Shepard’s right to do what he did here. It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.
Fairey has been reported to hold the belief that any artist can take a photograph and create a work based on the photograph without there being any copyright concerns. This, however, is not true and is a gross oversimplification of the law. The owner of a copyright has what is best referred to as a bundle of exclusive rights. These exclusive rights give the copyright owner the right do and/or to authorize reproduction of the work, preparation of derivative works and distribution of copies of the work. In this situation what Fairey did was create a derivative work that he distributed, so without the rights the owner of the copyright he would be engaging in copyright infringement.
When there is a copyright infringement there can always be a defense of fair use, which is what Fairey and his lawyers are arguing here. Fair use is a complicated area of copyright law and giving generalized rules of thumb when dealing with fair use can be exceptionally difficult. For example, in Harper & Row v. Nation Enterprises, the United States Supreme Court held that the copying of less than 400 words from the memoirs of President Gerald Ford constituted copyright infringement and was not a fair use. In Sony v. Universal City Studios, the US Supreme Court held that copying an entire movie would be considered fair use if the copying was done for time shifting purposes. While these cases can be reconciled, they work together to provide the ultimate caution when dealing with fair use, be careful with your analysis and make no generalizations.
The facts of any particular use make all the difference when determining if a use is a fair use. If you are looking for generalizations, the several that can be made are: (1) the less you copy the more likely it is a fair use; and (2) academic uses that are truly what we would consider educational, and which are not commercial in nature or commercial by disguise (such as photocopying and creating course packets for profit), are most likely going to be considered fair use provided that there is not an adverse effect on the potential market for the work in question. These generalizations gain significant strength when the amount of the work that is taken is not significant in relation to the whole. When discussing the importance of the amount taken, the Supreme Court has focused on whether the quantity and value of the materials used was reasonable in relation to the purpose of the copying, paying particular attention to the fact that the extent of permissible copying will vary with the purpose and character of the use. The best rule of thumb that can, therefore, be passed on is that if you are using copyright material without permission you should not be making money on the venture, and you should not use so much of the work that it is unnecessary for students to purchase the work in question.
Robin Gross, an intellectual property attorney who heads IP Justice, an international civil liberties organization, has been reported by the Associated Press to believe that Fairey had the right to use the photo, saying that he intended it for a political cause, not commercial use. She is quoted as saying:
Fairey’s purpose of the use for the photo was political or civic, and this will certainly count in favor of the poster being a fair use. Nor will the poster diminish the value of the photo, if anything, it has increased the original photo’s value beyond measure, another factor counting heavily in favor of fair use.
I am hesitant to take Attorney Gross to task because having given quotes to media outlets in the past I know that sometimes what you say and what is printed is not always the same thing. I do not suggest nefarious motives of the press, but it is easy to miss nuances unless you are intimately familiar with the law, and particularly so when dealing with fair use issues. In any event, what Attorney Gross says here does make logical sense, but is simply not a true and correct statement of the law. The fact that the underlying work has been enhanced probably should be a valid consideration, but it is not. The question is not whether the overall value of the copyrighted work has been enhanced, but rather whether the copyright owner lost revenue. If the infringer takes the work and makes money then money has been lost by the copyright owner because the copyright owner should have at least received a reasonable royalty for the work. So even if the copyrighted photo is now more valuable that will not be considered by most courts.
So while Fairey’s motive seems to have been pure, and done for a political cause he belived in, that is not going to save him at all in determining whether there is a fair use involved. In my opinion, this is not a fair use. He took the entire photo, copied it, added some components, but everything that could be protected by the copyright to the photograph has been taken. Obviously, the AP does not have the right to President Obama’s image. What their copyright covers is the expression, including artistic choices of the photographer, such as snapping the shot at a particular time to capture a particular look on Obama’s face, the angle of the photograph, the lighting and framing the image. So there is substantial creativity in any photograph, and Fairey took that creativity and appropriated it for himself.
If you listen to Fairey speak about what he did in the YouTube clip below, he seems like a genuine person with pure motives. He did engage in copyright infringement, but just because the AP has rights doesn’t mean that they should enforce them to the fullest extent possible. It is undeniable that the photograph is now worth more, and while that is not a justified legal defense for Fairey, someone at the AP should realize that the did them a favor and work out a deal that is beneficial to both parties. I suspect that is what will happen in the end.
So now for the question that many are probably asking themselves. Is the use of the photograph by me and other new outlets also copyright infringement? The answer is no, it is not. Fair use has very strong protections for news reporting, so the use of the photo and the poster here as a part of a comment on newsworthy matter is clearly fair use.
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