Blue Mass Group

Reality-based commentary on politics.

Fair use?

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An interesting little tiff has erupted over one of the most ubiquitous images of the 2008 campaign.

The image on the left was taken by AP photographer Mannie Garcia at the National Press Club in 2006.  You no doubt recognize the image on the right.  What you might not know is that the name of the artist who created it is Shepard Fairey, and that Fairey has acknowledged using Garcia’s photo as the basis for his design.  He found it using Google Images.

AP claims that Fairey’s design required permission which was never given.  Fairey’s attorney says the design constitutes “fair use” of Garcia’s photograph.  The parties are in negotiations.

Is this “fair use”?  Geez, I have no idea.  But one thing seems clear: between controversies like this one, and the AP trying to smack down bloggers, and Gate House Media suing Boston.com for linking to its stories (that very interesting case was settled, by the way), the Supreme Court is going to have to weigh in again on “fair use” pretty soon.

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  1. See Blanch v Koons

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    p>Besides, if anything, Fairey’s work adds value to Garcia’s work.  It certainly isn’t detrimental.  Garcia hasn’t lost any value as a result.  There’s no harm.

    • Blanch v. Koons involved a lot more “transformation” than Mr. Fairey’s work.

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      p> 

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      p>Blanch’s photograph is only one of the four pairs of legs in Koons’ work, and Blanch’s photograph itself is altered considerably – the angle is changed, and the background is stripped away; also, obviously, there’s a lot more going on in the work than just the legs (namely, to quote the 2nd Circuit, “images of confections — a large chocolate fudge brownie topped with ice cream, a tray of donuts, and a tray of apple danish pastries — with a grassy field and Niagara Falls in the background.”)

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      p>Also, as one commentator noted, that decision “doesn’t really provide much useful guidance going forward.”  He notes another decision that Koons lost, which involved this transformation:

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      p>

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      p>(the top, created by Koons, is a sculpture based on the snapshot at the bottom) and asks, repeatedly quoting the Blanch v. Koons decision:

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      Is there any doubt Koons used the postcard “as ‘raw material’ in the furtherance of distinct creative or communicative objectives”? That he “added something new, with a further purpose or different character, altering the first with new expression, meaning, or message”? Doesn’t that “almost perfectly describe Koons’s adaptation of” Rogers’s postcard photo: the use of an ordinary photograph created for sale in commercial card shops — “with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning” — as part of a large sculpture produced for exhibition in a leading New York art gallery?

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      p>This is about as grey as grey areas get in the law.  I’d say Mr. Fairley’s case is far from a slam dunk.  IMHO, the “transformation” of Garcia’s photo to Fairley’s poster is closer to the “string of puppies” example (which Koons lost) than the legs example (which Koons won).

      • From the AP article:

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        Legal experts offered differing views on the Obama image.

        Jane Ginsburg, a Columbia University law professor who specializes in copyright cases, questioned whether Fairey has a valid fair-use claim and says that he should have at least credited the AP.

        “What makes me uneasy is that it kind of suggests that anybody’s photograph is fair game, even if it uses the entire image, and it remains recognizable, and it’s not just used in a collage,” Ginsburg said. “I think that’s pretty radical.”

        Robin Gross, an intellectual property attorney who heads IP Justice, an international civil liberties organization, believes that Fairey had the right to use the photo, saying that he intended it for a political cause, not commercial use.

        “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,” said Gross, based in San Francisco. “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.”

      • To what extent, though, is Fairley protected because this is political speech and not a bunch of puppies?  I’m completely unfamiliar with IP law, and I’m wondering to what extent there are allowances for protected speech.  Are there any?  

        • If memory serves, the Obama campaign paid him to create that image after seeing a similar one with the word “change” underneath.  In which case, this is emphatically political speech.

          • Obama would have had to pay the AP to do that.

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            p>Photography is a kooky area in the digital media age, and photographers can go overboard in defense of copyright. But I think the AP has a good case here.

      • That is, was there any particularly marketable quality about the photo prior to its modification? Was there anything unique about that specific photograph of Obama, or could other photos have been substituted just as easily, making Garcia’s “talent”/contribution merely incidental to the success of Fairey’s design?
        Is this just a case of “damn, why didn’t I think of tweaking the colors, putting a slogan, and slapping it on a T-Shirt?”
        Here’s a T-Shirt slogan for you, Homes: “Stop Suin’.”

  4. The purpose of copyright is to promote progress in, among other things, art.  Interpreting fair use to allow the kind of transformation that this represents would indeed serve the purpose of copyright well.  Interpreting it to restrict such would, would undermine the real value of copyright.

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    p>I don’t know what a court would decide, but I know what ought to happen (which is not necessarily the same as “what a court should decide”, because other than the Supreme Court, courts may be bound by precedent to make a decision they know is otherwise wrong).

  5. From the web site of the U.S. Copyright Office:

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    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

      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.  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 distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

    The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

    Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

    The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

    When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

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    p>There is no express exception for political uses of copyrighted works in the statue.  If the posters were made available for sale, that sounds commercial to me.

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    p>The four factors are not mechanical tests–they are elements to be weighed by the court in applying the doctrine of “fair use.”  My spouse use to practice copyright law.  Her reaction is that the poster appears to be a modified copy of the photograph, a “derivative work” that is probably not fair use.  

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    p>Some artists actually project photographs onto a canvas when making a painting.  If this technique was used, it would make it very difficult to argue that the print was not a form of a copy of the photograph.

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    p>Our subjective feelings about the quality of the copy or the worthiness of the subject are, of course, immaterial.  I think the artist copied the photograph, and should have asked for permission first.

  6. The Globe reports that he was arrested by the Boston Police on outstanding warrants.  I think we can safely assume it was not for copyright infringement.  If he knows anything about Boston, he won’t resist the arresting officers, or they will “guide him to the ground.”

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