I am curious if you are familiar with the Jeff Koons case from 2006 (citation: 467 F.3d 244) that was decided in the same district that Fairey filed in. It would seem the facts, while not identical, are very similar and the court decided Koons’s use was indeed fair.

If you believe Fairey’s poster was not transformative–and I am not saying I disagree with you–what do you see as the distinctions between this case and the Koons case?

-Cameron

Unfortunately, that is the nature of copyright law, as I am sure you well know. There are few, if any, real bright line answers.

Sorry to make your head spin, but thanks for reading.

-Gene

On my original comment, the applicable law is in 17 USC 103:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

My point is that under (a), if Farley’s use is “unlawful,” i.e., it is not fair use, then he has no rights in his derivative.

I think this is going too far:
“Fairey’s work was not and is not and never will be considered to be transformative.”

As in other areas of the law, there is no absolute definition of “transformative”. Different courts look at different elements, and no element is exclusive across the circuits. Certainly Fairey’s poster would fail a parody or criticism test because his poster does not direct its commentary toward the original work (the news photo). However, some courts have focused instead on “purpose” specifically. Ask: could a member of the general public use Fairey’s poster for the same purpose as the original news photo? I think the answer to that could be no, if a court were to focus on the newsworthy elements of the photo and not on the creative or expressive nature of the photography. In other words, the original AP photo conveys information about a press conference. Fairey’s poster conveys no information or context, instead offering a political message which did not exist in the original photo.

One might view this focus on purpose as a stretch, or at best a minority viewpoint, but it does seem to fit Justice Story’s definition as quoted in Campbell v. Acuff-Rose:
“The central purpose of this investigation is to see, in Justice Story’s words, whether the new work ‘merely supersedes the objects’ of the original creation [citations] or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’”

Certainly Fairey’s poster “alter[s] the first with new expression, meaning, or message.”

In the balancing of all four Fair Use factors, Fairey’s overall case is weak at best, but I think there are courts out there that would say his poster is transformative.

I was not familiar with Warhol’s work so I did a quick Internet search. I would say that some of his Monroe works would be transformative and other not. The ones that I found that are mostly colored with outlines I would lean toward saying are transformative. What do you think?

-Gene

I am not sure that the AP had difficulty determining which photo was copied. I thought they were researching to make sure that they had properly acquired the rights from the photographer, which seemed the prudent thing to do.

I believe artists would think Fairey’s work to be highly transformative, but I just cannot see how the work is legally transformative. The message conveyed by the poster is probably extremely different than the message conveyed by the photograph, but copyright is about copying of the elements. I have never really liked the rule that an infringer cannot escape infringement based on showing what was not copied, but that law is pretty well established. I have always argued that if enough is not copied then that should show that there is not copyright infringement, but the weight of case law disagrees with me on that point.

We will see what happens. I just think that Fairey’s attorneys are abusing the process because there is quite obviously a deal to be had to make the AP and Fairey happy. I also don’t like the trickeration relating to Fairey’s attorneys getting an agreement from the AP not to sue pending settlement discussions and then under that pretense gaining time to file their own lawsuit first. That is under handed and beneath Stanford University (or should be).

Thanks for your continued input.

-Gene

Thanks for your further thoughts. Now I see we probably agree more than I thought on the analysis – just not on the facts. If the court finds that all Fairey did was copy an AP photograph, and add some color, then I agree he should and will lose. It seems to me, however, that he probably did more than that -but then I am not an artist and perhaps what he did was truly trivial. Query this – if the photo was directly copied why did folks, including the AP, allegedly have difficulty in identifying which photo was “copied”? Doesn’t that also likely speak to how much of the photo was truly “original” and not merely factual?

Perhaps the modifications Fairey made to the portion of the photograph he used were trivial, but it looks like he both removed information and added information (e.g. the original photo with Clooney has a microphone that had to be ‘removed’ and the missing information inserted, the eyes have been changed substantially as well it appears). If that is true (which remains to be seen)- would you agree that his efforts go beyond mere copying and is certainly not the same as photcopying a book? The Supreme Court said the inquiry is ‘whether and to what extent the new work is “transformative.”‘ What amount of change is ‘transformative’ ?

I think this will be good case to answer this question in a factual context that is quite different from parody cases. From my perspective, there are good arguments on both sides.

Based on Fairey’s arguments, I think he would agree with your point that the Reagan HERO poster was a “fair use”.

Thanks again and keep up the good work!