It’s been awhile since I’ve written about Shepard Fairey, the breaks-the-rules-and-boasts-of-it visual artist who is locked in a legal battle with the Associated Press over whether his use of an AP photo of Barack Obama to create the iconic red-and-blue image of the then-presidential candidate was copyright infringement. Well, the judge in the case has told Fairey that at some point “the Associated Press is going to win” and so it’s in his best interest to settle.

(Side note — it’s the AP that first reported this. Now you could say it’s because they’re in the case, and you could say they’re reporting it because it favors them, but I happen to know as a journalist who has had his work distributed on the AP wire that the whole essence of the AP is that they cover everything, either directly or through their newspaper partners. We really want this venerable non-profit to stick around.)

To catch folks up, Shepard Fairey — famous for his “Obey” posters of Andre the Giant that he would illegally paste all over urban environments — took a 2006 AP photo of then-Senator Obama, made the poster that the Obama campaign later used (with the word “HOPE” under it, although Fairey if I recall had used the word “PROGRESS”). After the election, it became clear that Fairey had used an AP photo. AP held the rights to the photo and approached Fairey, who promptly sued the AP (yes, Fairey sued first). AP then countersued under copyright law and in defense of journalism. Since then, Fairey has admitted to lying about the photo he used (he first said he cropped a small portion of another photo, when in fact he used an entire photo, replicating right down to lapel shadows) and the AP has noted he had pursued licensing of images in the past. Fairey is also under criminal investigation for some of these questionable acts during the court case.

It’s reported that at a hearing last Friday, U.S. District Judge Alvin Hellerstein suggested the idea of a settlement. It’s not clear we should hold our breath, however. According to the report, AP wants to make clear that it is the copyright owner and that it was infringed. The AP attorney, Dale Cendali, said evidence in the case suggests Fairey has earned at least $2 million from the sale of products based on that photograph, a reason not to let Fairey off lightly. Fairey’s attorney said a financial award in favor of the AP would bankrupt Fairey, and that despite the judge’s prediction of an eventual AP win, that there is “a strong basis for fair use in this case.”

I find myself asked all the time for my take on the case. I’ve followed it pretty closely and even have a neighbor who has worked as an attorney on it. As in all fair use cases, it comes down to the four fair use factors (keep in mind fair use is an affirmative defense by the party accused of infringement, and thus it is a court that ultimately decides what use is “fair”). There’s no magic number one must hit on these factors, judges weigh them as a whole:

* Purpose and character of use: Because Fairey has profited from the use, he falls short in this area (noncommercial use gets more slack from most judges).
* Nature of the copyrighted work. Here fact-based works are more likely to be seen approvingly in a fair-use case than purely artistic ones. My lay judgment here would be that a news photo of a public figure is more likely to find itself falling under fair use. (Keep in mind, though, when you think about how many photos there were of Senator Obama to choose from, it’s reasonable to think that with a wee amount of effort, Fairey could have found one with generous licensing terms that would have suited his needs, even if he didn’t like AP’s terms for that photo. That factors in here.)
* Amount of the work. This is the one factor I usually point to in the Fairey case. It’s a pretty darned important fair use factor (do you quote a line from a news story or reprint the entire news story?) Fairey used the entire work. It’s no surprise he originally lied (well, he claims he erred) and said he in fact used a small portion of a larger photo that featured Obama next to actor George Clooney.
* Impact on potential market of the original work. Photojournalists and archives rely on licensing for major portions of their income. If any artist can come along and take a copyrighted image, use it in its entirety, and make millions from that derivative work, that completely undermines the rights of any copyright owner. If Fairey has made millions off of his derivative work, that suggests the value of the original as a licensed work is pretty high.

An important question when weighing if something is fair use is to consider if the resulting work is derivative of the original, or transformative. A transformative work would be something wholly original and unexpected; a derivative work is something a copyright owner has a right to, and might pursue themselves or license (a book being made into a movie, for example).

I absolutely love the Fairey poster; in fact, during Halloween 2008 I carved a jack-o-lantern based on the image (it looked great but fell apart within 24 hours; to replicate the shading I thinned the pumpkin down in parts to where it was thin enough to have light penetrate, but that accelerated the rotting. Sigh.). But visual artists whose opinion I respect tell me that the work he produced is a pretty straightforward trace job, and I know there have been many works over the years in the progressive movement that he had as a model. So it seems pretty clear it is a derivative work, and copyright owners hold the rights to derivative works.

Bottom line, I think the judge is being kind to Fairey. I think it has been clear for a fairly long time that this would not be found to be fair use. I think Fairey knew that, and sued first to try to get the upper hand (I’ve seen that in other infringement cases over the years, it rarely works out though). It became more clear when all of the false information he had provided in the case came to light and he fell under a criminal investigation. What is not clear to me is why AP at this point would want to settle.

I think it’s fair to say that many copyright owners, particularly photographers, would want AP to stand firm as well, to make it clear that this was infringement. The law on fair use specifically avoids legal “bright lines,” but legal cases that reach a judgment do set bright lines, and it’s clear one is needed here.

Share this:

This entry was posted on Tuesday, June 1st, 2010 at 1:07 pm by Patrick Ross and is filed under Obama, copyright law, fair use, licensing, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.