In a strange twist, Shepard Fairey, the artist of the popular print made famous through the 2008 Presidential Campaign, has sued the Associated Press in federal District Court in Manhattan seeking an order from the court that his use of the underlying photograph owned by the Associated Press is a fair use. Mr. Fairey’s lawyer, Anthony T. Falzone, the executive director of the Fair Use Project at Stanford University says that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.” Such an argument is quite surprising coming from a fair use expert, who must know that the great weight of authority is against him. While determining what is and what is not a fair use is typically far from certain, it is my opinion there is no chance that a court will rule that Mr. Fairey’s work is a fair use, because it simply does not meet the requirements set forth in the relevant statute – 17 USC 107. If this is a fair use then virtually any derivative work would be a fair use and that is not a Pandora’s Box I see any court opening.
The AP was shocked that Mr. Fairey filed the lawsuit earlier this morning because the AP and Mr. Fairey’s attorneys were working on a settlement of the matter and the AP had agreed not to bring any action against Mr. Fairey while the parties attempted to reach an amicable resolution. Paul Colford, Director of Media Relations for the Associated Press, issued the following statement:
The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company, and by Mr. Fairey’s failure to recognize the rights of photographers in their works. AP was in the middle of settlement discussions with Mr. Fairey’s attorney last week in order to resolve this amicably, and made it clear that a settlement would benefit the AP Emergency Relief Fund, a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts.
At Mr. Fairey’s attorney’s request, we agreed AP would not pursue legal action while in these discussions. Despite an agreement to continue these discussions on Friday, Mr. Fairey’s attorney avoided contact, nor did he respond to an invitation to make contact over the weekend. Instead, he chose to file on Monday morning, without any notice to AP.
AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP.
Falzone will attempt to make the argument that Mr. Fairey’s work is transformative because under the fair use statute the more transformative the work the more likely the work is a fair use. Court have routinely held that merely copying a work into a different medium does not make the work transformative though, which does not bode well for Mr. Fairey. Yes, he did add to the work, but it is important to note that all of the aspects of the photograph that copyright law recognizes as most protectable have been taken by Mr. Fairey’s work. Specifically, everyone who would look at the Obama photograph and then looks at Mr. Fairey’s work will be struck by the fact that Mr. Fairey copied the exact pose, same tilt of the head, same gaze and the same expression on President Obama’s face.
For better or for worse, when someone is making money they have little if any chance of mounting a successful fair use defense, perhaps with the only exception being a parody, which is entitled to special protections because a parody is the essence of comment and criticism, two things that are specifically enumerated as deserving protection in the fair use statute.
Fair use does not recognize any kind of “political” exception, despite what many have written on the Internet over the past several days. 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.
Eventually if Mr. Fairey continues to pursue the matter the Supreme Court would take this case because of its importance to photo journalists and photographers, and because fair use is a particular favorite topic of the Supreme Court to discuss. It will take years to get to that point, and obviously require both sides to pursue the matter to the fullest extent, but that is certainly conceivable. The Associated Press would have to take this case to every appeal possible because of the enormous damage a fair use ruling would cause to their business model. It also seems likely that with Stanford University behind Mr. Fairey he will have no incentive to settle given that he is getting what is likely free legal representation from the Stanford University Fair Use Project.
The reason I am so confident about the ultimate outcome of this case is not only because the fair use criteria simply are not in his favor, but also because a ruling that Mr. Fairey’s activities were a fair use would mean that any artist could take a photograph and 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 by focusing on the economic damage to the copyright owner, it is easy to see that a fair use ruling for Mr. Fairey is simply not going to happen because it would kill the industry.
Additionally, all those who think that Mr. Fairey’s use is a fair use are simply ignoring the most similar line of cases, which 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 by this or any other case. 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 review the cases you will find that this has never been considered transformative and never will be considered transformative enough to qualify as a fair use.
The one and only one issue that could potentially derail the Associate Press is the fact that they may not own the underlying copyright. I would find it hard to believe that this is the case, but according to the New York Times the photographer, Mannie Garcia, believes he owns the copyright. Mr. Garcia was a freelance photographer and it is impossible to know whether he retained the rights to the photograph, although that would seem doubtful. Nevertheless, the Associated Press will need to be certain that they do legitimately own the copyrights to the photograph because it seems that Mr. Garcia likes Mr. Fairey’s work and was quite pleased to see that his photograph has been used in such a fashion. So if Garcia does own the copyright that could suggest that he will grant Mr. Fairey any rights necessary. If I were representing Mr. Fairey the first thing I would do is get written permission from Mr. Garcia, that way the entire case would be mooted if the AP does not own the copyright.
About the Author
|Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
B.S. in Electrical Engineering, Rutgers University
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