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.
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This may be covered in 2), but what about the originality of the source copyrighted material?
Comment by Kris February 5, 2009 @ 8:09 pmWhat if I were to photograph Obama at a different time and place but in a very similar pose to the one in the AP photo? Would that be in violation of the AP’s copyright? Particularly because Obama is a public figure, I do not see what rights the AP can possibly have concerning anything other than exact reproduction of their photograph.
Campaign posters are a legitimate us of licensed photographs, and thus the transformation ‘into an inspirational image’ is a non sequiter. He’s admitted selling 4,000 posters at $45 each which is $180,000, not to mention sales to magazines all over the world for covers and interior artwork. His use of it was commercial. Obama’s campaign didn’t use his original posters because the copyright was questionable. Fairey copied a photo and made a shedload of cash out of it. From the person who sued Baxter Orr for parodying his work, his refusal to pay a license fee to AP is hypocritical money grubbing.
Comment by Boris February 17, 2009 @ 5:28 am