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Our Best Wishes to Justice Ginsburg
Associate Justice Ruth Bader Ginsburg, hero of the early women’s rights movement and proud liberal voice on the Supreme Court, is apparently in the early stages of pancreatic cancer. We here wish her a speedy recovery and, in the meantime, the peace of knowing that one of her least favorite decisions of the past few years has already been reversed by legislative action, with more to come (think Lily Ledbetter). Get better soon, Justice Ginsburg; you’re a hero.
Contrary to the Associated Press’ Lawyers, Shepard Fairey’s Iconic Obama Image is Unequivocally Fair Use
Just a little bit ago, bloggers identified the photographic source of Shepard Fairey’s iconic image of President Barack Obama: a photo taken by the Associated Press early in the campaign (right). Well, it didn’t take long: the AP is crying foul, asserting copyright and demanding (at least) attribution.
Bad news for the AP: pursuant to established “fair use” doctrine, the iconic Obama “hope” image is undoubtedly fair use. To determine whether an image is “fairly used,” the law looks to four factors (17 USC § 107 (2008)):
(1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Part of the law that’s grown up around these simple factors is the doctrine of “transformative” use, whereby a copyrighted work appropriated but utterly transformed in meaning and substance provides the original “artist” with no valid copyright claim. Oddly, to satisfy this doctrine, artistic transformation of an artistic work may not be enough, even if the effect of the transformation is to invert the work’s meaning. The law requires more than a different perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). ((For those acquainted with the Koons “String of Puppies” case, I actually think it was wrongly decided. But that’s neither here nor there.)) But Fairey’s case is a significantly greater reinvention: here, Fairey took an image intended for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obama’s historic candidacy and unique promise. In the process of creatively altering the image from the purely representational to the artistically abstracted, he added meaning and value, and he crossed expressive genres in the process, depriving the AP of any legitimate claim of lost revenue. This may just be over the border of “fair use,” but fair use it is. The AP should back off.
Line-by-Line on the Institute for Creation Research
Creationism has so much to teach us, if only we’ll listen! At least, that’s the title of an article that appeared in US News & World Report this week, by Henry Morris III, head of the Institute of Creation Research. Oddly, though, it’s not the argument he makes. In the course of a two-page piece arguing for teaching creationism in public schools, not once does Morris argue that creationism is either scientific, or capable of generating scientific insights. Nor could he. Although the disparity between title & text is enough to make the article rebut itself, let’s take a closer look at Mr. Morris’ arguments – just for fun – line by line, paragraph by paragraph.
Because it’s a long piece, the complete text & reply sections are below the line, but I’ll put this concluding note first: if creationism did have “so much to teach us,” it’d be news, and Morris’ article would merit a second thought. As it stands, though, creationism can teach nothing but a narrow-minded view of man’s relationship with God, which is emphatically not the province of the science teacher. In its entire existence, the Institute for Creation Research, of which Morris is a representative, has never done any research on creationism that isn’t reducible to an argument from awe or Biblical exegesis. And that, simply put, is the best argument against teaching creationism.
