AP Goes After Obama Artist for Copyright Violation

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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Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)

B.S. in Electrical Engineering, Rutgers University
J.D., Franklin Pierce Law Center
L.L.M. in Intellectual Property, Franklin Pierce Law Center
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Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide

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16 comments so far.

  • [Avatar for Melina Benninghoff]
    Melina Benninghoff
    August 29, 2009 08:26 am

    I Know what it feels like to have something I created to be rewrote and given a new look. It used to bother me. But that is just the nature of man. I also believe it is transformitive to be contrary to everyone. As long as it is not the same or resemble the original. Car dealers do it all the time.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 14, 2009 12:11 pm

    Julia-

    Thanks for joining the debate. I agree with you. Fairey’s work is not transformative. I suspect that the trouble here is that from an artistic perspective Fairey’s work probably is transformative, but from a legal perspective it clearly is not. I find this same problem when discussing software with programmers. For better or worse the law uses terms with every-day meanings, but which take on a specific legal meaning based on cases and statutes. Without knowing the cases and statutes and what the terms mean in law it is impossible to offer an opinion based only on ordinary meaning.

    -Gene

  • [Avatar for Julia Esacove]
    Julia Esacove
    April 14, 2009 04:52 am

    Gene.

    Still following the commentary here. With all due respect to Nate, I’m alligned with your opinion: the work is NOT transformative. And while I’m just a humble IP paralegal and can’t recite case law off the top of my head, I know enough. Fairey would be wise to settle.

  • [Avatar for bill obvious]
    bill obvious
    February 25, 2009 11:55 pm

    “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”

    you don’t say!

  • [Avatar for Ohiowordguy]
    Ohiowordguy
    February 25, 2009 02:48 pm

    I’m not an attorney, rather I am a writer, editor, photographer and publisher. The Fairey work is clearly an infringement of the AP’s copyrighted work. How can anyone claim otherwise? Let’s inject some simplicity and common sense: Fairey used the photograph, changed some things and sold it for profit.

    I have done enough research to know that “Fair Use” could best be described as murky in some respects, but in this case, the artist clearly violated the copyright — and for profit. Case closed. Mr. Fairey would do well to cut a deal, and enjoy his 15 minutes.

  • [Avatar for Zvi Ben-Ari]
    Zvi Ben-Ari
    February 24, 2009 04:47 pm

    Gene:
    in the 3rd line, I should have written “but”, not “and”.
    Use the following:

    Gene: “Climb down from the tree” and admit that Nate provided a good analysis and support for his opinion (which was not win or lose, rather simply an informative look at relevant case law). I think you also made some intelligent comments, but to imply that your opinion is thee opinion makes you look weak.
    Zvika

  • [Avatar for Zvi Ben-Ari]
    Zvi Ben-Ari
    February 24, 2009 04:46 pm

    Gene: “Climb down from the tree” and admit that Nate provided a good analysis and support for his opinion (which was not win or lose, rather simply an informative look at relevant case law). I think you also made some intelligent comments, and to imply that your opinion is thee opinion makes you look weak.
    Zvika

  • [Avatar for The Stand]
    The Stand
    February 10, 2009 04:01 am

    Have you read any of the criticism about Shepard Fairey on the Myartspace Blog? Brian Sherwin has been on this case since mid 2008. I don’t think it is fair use. I think it is Shepard Fairey using fair use as an excuse. Look up what Fairey did to the artist Baxter Orr when Orr claimed fair use.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 9, 2009 05:41 pm

    Nate-

    You can believe whatever you like. I think I have sufficiently proven that this is not a fair use. I have no doubt that I am right and if Mr. Fairey does not work a deal with the AP he will lose in court, regardless of what you or any other attorney believes.

    The truth is that Mr. Fairey’s work is not transformative. He merely copied all the elements that could be protected in the photograph and put it into a different medium. There is zero chance that would ever be determined to be a fair use. Eventually if Mr. Fairey and the AP continue to pursue the matter the Supreme Court would take this case because of its importance to photo journalists and photographers. If the outcome were that any artist could take a photograph and copy it then photographers everywhere would lose significant rights and anyone could paint any photograph and sell it without permission. If you actually stop and think about the economics involved and how courts determine questions about fair use you would realize that will never happen because it would kill the industry.

    On top of that, you are ignoring all the cases that deal with lithographs. Just like painters cannot take the works of photographers and reproduce them, the work of painters and artists cannot be taken and turned into mass produced posters and pictures. That is well established law and will not be changed. Museums and powerful artists would never stand for that, and would line up to side with the AP in court. If Mr. Fairery were to win then anyone would be able to copy a painting into a poster and claim it is transformative. If you actually do your research you will find that has never been considered transformative and never will be considered transformative enough to qualify as a fair use.

    This is really an easy case and I caution anyone who would rely on Nate’s analysis or the analysis in the Huffington Post to be very careful. The fact that you want it to be that way does not make it so and it would be terrible to rely on faulty legal analysis and get yourself into a bad situation.

  • [Avatar for Nate]
    Nate
    February 9, 2009 05:01 pm

    “It is odd to hear you suggest that Fairey’s obviously commercial work, which is something not allowed under the terms of Section 107 of the Copyright Act, is a fair use but that using a photo for news purposes is not. This is quite confusing to me, particularly given the specific language of 107 says that news reporting is a fair use.”

    This shows fundamental misunderstanding of the Copyright Act on multiple levels. The preamble of 17 USC § 107 which you keep citing:

    “Fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

    Is not how courts do fair use analysis. Period. Courts do not look at the preamble and decide if the use fits within one of the uses described in the preamble. You fail to include the most important part of § 107: “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–
       (1) the purpose and character of the use, including whether such use is of a 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.”

    The statute states that the factors should be looked at in “any particular case” to determine if the use is fair use. The case law is dispositive on this issue: “The text employs the terms “including” and “such as” in the preamble paragraph to indicate the “illustrative and not limitative” function of the examples given… which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.” Campbell v. Acuff-Rose Music, 510 U.S. 569, 577-578 (1994). To say that a court must weigh all of the four factors when doing fair use analysis is not an oversimplification. Again from Campbell: “Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578. News reporting is also obviously a commercial enterprise, just because news reporting is listing the preamble does not give news a blanket fair use exemption to copyright. For example, The Nation was news reporting when they broke the Ford biography story but that was not fair use. News reporting agencies can commit copyright infringement, they do not have a blanket exemption in § 107.

    Just because the defence raised in Campbell was parody, does not mean that it is only in parody cases that all four factors must be weighed. (See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (2007).) I would like to see a fair use defense case where the court does not going into a fair use analysis.

    The proof is in the pudding and in this case the pudding is the case law. I advise any readers who are interested in how Mr. Fairey’s case might play out to look at Blanch v. Koons, 467 F.3d 244 (2007). The facts are strikingly similar to Mr. Faireys case. Blanch involves a case where an artist created a collage which included a copied (but also altered) part of a copyrighted photograph. The court does not use the preamble which Gene constantly cites for analysis, but uses the four factor fair use analysis. Under the purpose and the character of the use the court found that when the copyright work is used as raw material for someone to build on for creative or communicative reason than that use is transformative. Id. at 253. The court did not have much to say for the second factor, or the third factor but certainly weighed them. Under the fourth factor, market effects, the courts main concern was whether the “secondary use usurps the market of the original work.” Id. at 258. The holder of the copyrighted photograph in Blanch admitted that she had never licensed her work, and that he authors use of her work had no effect on career or any plans she had for the photograph. Id. After weighing all the factors the court found that copyright law’s goal is better served by allowing use of the photograph than preventing it. Id. at 259. Blanch is an example of an artist using a copyrighted picture and the use is considered fair use.

    I will go into the four factor analysis again for Mr. Fairey, but Blanch is an excellent example of how a court would weigh Mr. Fairey’s defense. Blanch also makes out my argument about how a news agency could use a copyrighted material and that use would be infringement. If a news agency uses copyrighted material and that use “usurps the market of the original work” then it would be difficult of have a fair use defense (absent good arguments under the other 3 factors). We see this in The Nation, where the Nation, a news agency, usurps the market for the story on President Fords biography. In The Nation the court did not look at the preamble of § 107 and say news reporting is in the statute so what The Nation did is fair use. The Supreme Court applied the four factor test, and even stated that “These factors are not necessarily the exclusive determinants of the fair use inquiry and do not mechanistically resolve fair use issues; ‘no generally applicable definition is possible, and each case raising the question must be decided on its own facts.’Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 588.

    How does The Nation help Mr. Fairey? Mr Fairey did not make an exact copy of the photograph and use it, whereas The Nation took verbatum quotes. Also Mr. Fairey does not usurp a market like The Nation did. He did not liscence his paintings to news agencies who wanted pictures of President Obama for their stories on Obama.(Atleast I have not seen evidence of this). Essentially he is not making money that AP would have made absent Mr. Fairey’s use.

    I am not saying that I am right or wrong about fair use, I am making an argument based on the case law, which does its arguing for me. Almost always in law there are two (or more) sides to the law. We see courts who think they are applying the law correctly overturned on appeal all the time. I think you a disservice to your self and to your blog by suggesting that you are correct about every aspect of copyright law and that your record is the right record, and that others are wrong. Give your readers some detailed case law about why you think you are right about fair use.

    Just as an example here is another attorney who has a different perspective on the issue than you do: http://www.huffingtonpost.com/jonathan-melber/the-ap-hase-no-case-again_b_165068.html Not surprisingly, I do not agree with all of his analysis either.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 9, 2009 08:00 am

    Nate:

    You say: “Although much of Two Live Crew’s defence rested on the argument that the nature of the use was parody, Campbell requires that all of the factors be weighed.”

    That is a gross oversimplification of the case. This case was a parody and to suggest that things that are not a parody would come out the same is naive. By definition a parody is a comment or criticism on the underlying work and, therefore, entitled to far more privilege. Taking the work of another and making money on it is a different category altogether. You are comparing apples with oranges.

    Additionally, while I didn’t bring it up earlier, I find it impossible to believe that you could objectively believe that Harper assists Fairey. While the case did deal with the book being “scooped” as you say, that went to the economic injury. Harper legally speaking stands for the proposition that even if you take a small percentage of the overall work you may not be able to rely upon a fair use defense. Here Fairey took pretty much the entire work. To suggest that Harper helps Fairey is simply an incorrect legal analysis.

    It is odd to hear you suggest that Fairey’s obviously commercial work, which is something not allowed under the terms of Section 107 of the Copyright Act, is a fair use but that using a photo for news purposes is not. This is quite confusing to me, particularly given the specific language of 107 says that news reporting is a fair use.

    I never suggest that people rely on general legal advice. Every legal situation is different and people should consult a lawyer when they have an issue. Nevertheless, this is my site and I endeavor to provide the best, most accurate legal information and analysis possible. I appreciate people commenting on my articles, but when they get things wrong I do what I can to set the record straight to maintain honesty and integrity.

  • [Avatar for Nate Fieweger]
    Nate Fieweger
    February 8, 2009 09:19 pm

    Gene,
    “For better or for worse, when someone is making money they have little if any chance of mounting a fair use defense. That is just the way the law is.”

    That is a misstatement of the law, and this argument was expressly rejected in Campbell v. Acuff Rose-Music, 510 U.S. 569 (1994). In every fair use analysis courts are going to look at 17 U.S.C. §107 and go through the complete four factor test. This test remains an equitable rule of reason test, and courts are going to look at the facts unique to each case. In Campbell v. Acuff Rose, Two Live Crew’s use of Roy Orbison’s song “Oh, Pretty Woman” was primarily for financial gain. The 6th Circuit basically made the same argument that you present, when the primary purpose of the use is for financial gain there is no fair use defence. The Supreme Court reversed the 6th Circuit because the commercial nature of the use is only one element of the analysis. The Supreme Court found there was a fair use defence after running through the factor test. Although much of Two Live Crew’s defence rested on the argument that the nature of the use was parody, Campbell requires that all of the factors be weighed. Campbell also reiterated that courts are required to avoid rigid application of copyright when it restrains the creativity it intended to encourage. Mr. Fairey’ portrait is a good example where a rigid application of copyright law would restrain the creativity it intends to encourage.

    When congress included § 107 in the Copyright Act they were codifying common law. The section of 17 U.S.C § 107 which you quote is only illustrative. (See Campbell v. Acuff Rose-Music, 510 U.S. at 577). It is not the important part of the statute. The four factor test, and the case law are what courts are going to follow. To do a fair use analysis and not go over each of the four factors is necessarily faulty analysis. Fair use is one of the most difficult areas of copyright and also one of the most difficult to predict. I respect your argument that Mr. Fairey’s use is infringement but I disagree. Unlike you however I am not saying that it definitely is or is not infringement, just that I think that Mr. Fairey has arguments in his favour.

    I completely agree that blogs are news and have fair use protections. In fact it is necessary that they are news reporting for my argument. I argue that blogs need to be careful about what images they use in their reporting. Companies like Getty and AP license their images to news reporting agencies. Imagine this situation, the New York Times pays AP for a licence to a photograph of Hillary Clinton . The Washington Post copies AP’s photograph of Hillary Clinton without paying AP and uses it in their paper. The Washington Post as a news agency has a fair use defence right? If they are running an article about Hillary Clinton, or commenting on or criticising Hillary Clinton the answer is no. The Washington Post should have to pay AP for use of that photo because they are eliminating a market for that photo. However, If Post is criticising or commenting on how the New York Times uses the specific photo of Hillary then they have a better fair use defence. Now switch the Washington Post with a Blog, and this is my argument. I understand that this is touchy subject with a lot of bloggers and a very fine distinction.

    Also your comment about relying on what I argue, I am just making an argument. I hope you are not implying that people should rely on your articles for legal advice. If any of your readers seeks legal advice they should find a lawyer. A good resource for finding lawyers are state bar associations.

  • [Avatar for Gene Quinn]
    Gene Quinn
    February 8, 2009 01:49 pm

    Nate-

    Thank you for commenting, but I just want to make sure that everyone reading understands that your analysis is incorrect and does not rely upon what you have written.

    For better or for worse, when someone is making money they have little if any chance of mounting a fair use defense. That is just the way the law is.

    Second, fair use does not recognize any kind of “political” exception. The fact is that Mr. Fairey’s work is quite valuable and selling for a lot of money. The AP is correct in this instance, and Mr. Fairey’s work is not a fair use. If you research the story you will find out the the Obama campaign even asked him to create a work based on a photograph that they held the rights to, so the Obama campaign was uneasy about this infringement, although it does seem that President Obama did like Fairey’s work very much.

    Third, your statement about newsworthy fair use is completely wrong. The relevant statute says:

    “Fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

    So as you can see criticism, comment and news reporting are specifically exempted from copyright infringement. The fact that you think the blog community is not entitled to this news exception shows you really do not understand the Internet or the role of blogs. It also demonstrates that you are not familiar wtih my writings on intellectual property matters. Over the last several years I have broken a number of stories that have later been picked up by the major media, so it is certainly fair to say that my writing on topical events is news reporting, comment and criticism.

    Finally, I like Mr. Fairey’s poster quite a lot and I can certainly understand why it is so valuable. He seemed to capture the essence of the Obama movement. I expect that in the end there will be a resolution between Mr. Fairey and the AP that is acceptable to everyone. At least that is my hope.

    -Gene

  • [Avatar for Nate Fieweger]
    Nate Fieweger
    February 8, 2009 02:12 am

    I argue that Mr. Fairey has a stronger fair use defence than the article makes out. Harper Row v. Nation Enterprises probably helps Mr. Fairey’s argument more than hurts it. In Harper Row, the Nation interfered with Harper Row’s right to first publication. Harper Row had made a deal with Time, where Time was going to pay Harper Row for the exclusive right to excerpt a substantial portion of the book. The Nation obtained a portion of the book and copied passages verbatim and published the story before Time could. Time then cancelled the deal with Harper Row because the story had been “scooped.”
    In Mr. Fairey’s case he used a photograph which had already been sold to newspaper as a reference for his portrait of Obama. There is no violation of AP’s right to first publication. Also the Supreme Court made it clear in Harper Row that Harper Row had no copyright to the facts of Ford’s biography. The Supreme Court ruled in favour of Harper Row because The Nation had copied quotes verbatim from Ford’s draft. Mr. Fairey did not copy to the extent that the Nation did.
    Going over the fair use factors, on balance it seems that Mr. Fairey has a strong fair use defense. The purpose and character of Mr. Fairey’s use is mostly commercial, but there is an argument that it is also political. Mr. Fairey does sell prints, but his portrait also caught like wild fire for a political campaign. Mr. Fairey’s portrait is art, arguably fine art. Mr. Fairey’s use is strongly transformative, he creates a powerful image of Obama using a minimalist style. The nature of AP’s copyrighted work is a news photograph of a presidential candidate. President Obama, at the time a political candidate, is the subject of AP’s photograph. I disagree with Julia that Mr. Fairey’s art is clearly a derivative work, it would be difficult to do a portrait of President Obama which did not match one of the thousands of pictures of him. This is the idea/expression dichotomy. If Mr. Fairey is going to do a picture of Obama, it is going to look like him. The amount and substantial of the use weighs in AP’s favour, Mr. Fairey admits to using the photograph as a reference. Finally and most importantly the the effect of Mr. Fairey’s use on the potential market or value of AP’s copyright. The Supreme Court has repeatedly stated that this is the most important factor, and in Mr. Fairey’s case it weighs in favour of Mr. Fairey. AP had already sold the rights to display the picture before Mr. Fairey made his portrait. Arguably AP had gained all the the income they were going gain from their photograph because newspapers are going to use and want new pictures of Obama every day. It is unlikely AP would turn the photograph into a work of art. The value of the picture is probably increased from the wide exposure of Mr. Fairey’s art.
    I think what makes this analysis complicated is that President Obama’s image is essentially an idea in the idea/expression dichotomy. He is so much in the publics eye that his image, and information about him is in the public domain.
    Finally on the final note of the article, there is a strong belief in the blog community that their use of images/photographs which are newsworthy is fair use. This is not necessarily the case, companies like AP make money off of licensing their photographs to news publications. Using AP’s images in a news context with out paying for the license is essentially undercutting their market. To argue that I am a news outlet so I can use the pictures that AP sells to news outlets without paying for them is a faulty argument.

  • [Avatar for Dr. Kopp E. Wright]
    Dr. Kopp E. Wright
    February 7, 2009 11:34 pm

    There IS a balance between FAIR USE and FAIR ABUSE.

    Re: Obama Poster Appeal….

    Put Fairey and Obama in the museum with “HANG IN THERE BABY Cat Poster, Pamela Anderson Bathing Suit Poster, Farrah FAWCETT’s “smiling hair” poster, Pat Paulsen for President in 1968 and Bob Marley’s ONE LOVE…it’s got that “Jamaican / African / Anglo overtone….

    I fell it is iconic—and a work of art……If the artist can argue that he was inspired by the images from lets say 5 sources, he could claim it a TRANSFORMATIONAL image….which IS fair use…..That photo of Obama by AP was a “capturization” of a fact — O’s image….a copy of a copy of what is public domain….if the photo was snapped in a public place……come on, Artists of the World….LEARN the LAW and Protect and assert your rights !!!!!!

    Dr. K..E. Wright

    –Dr. Kopp E. Wright

  • [Avatar for julia esacove]
    julia esacove
    February 7, 2009 02:22 am

    Amen! While I am a fan of Fairey’s art, the poster is clearly a derivative work. Can’t wait to see what happens here. I love your blog Gene.