Tag Archives: Fair Use

The Fair Use Fairey

Oh, for the love of Hope in Copyright law… It seems that the Shepard Fairey debacle has finally reached a conclusion, and it’s not what many would have hoped for. From an artist’s perspective, they’re taking the easy way out. Not seeing this through to trial is cheaper, but now there is a lost opportunity to get some modern precedent from the courts about the fair use of digital media.  From a business perspective, though, I can see how they’re doing the smart thing, splitting the difference with collaboration.

So before I wax poetic about what they’ve concluded, this is the background to the story for those that haven’t been following along.

Associated Press files countersuit over Obama Poster
(March 11, 2009)

“The Associated Press has filed a countersuit against the artist Shepard Fairey , who created the famous “Hope” poster of Barack Obama, The A.P. said in a statement. Mr. Fairey, whose poster  is based on an A.P. photograph taken by Mannie Garcia in 2006, filed suit in February , seeking a declaratory judgment that would rule that the poster does not infringe on The A.P.’s copyrights, and enjoining The A.P. from asserting its copyrights against Mr. Fairey or his company, Obey Giant. In its counterclaim , filed Wednesday in the U.S. District Court for the Southern District of New York, The A.P. said that Mr. Fairey was “fully aware” that his poster was based on a copyrighted image, and that he “misappropriated The A.P.’s rights in that image”; The A.P. said that it made “every effort amicably to enter into a license and avoid litigation” with Mr. Fairey. In its countersuit, The A.P. seeks damages and injunctive relief on claims of copyright infringement.”

In the eventual lawsuit Ferry was seeking a “Fair Use” declaration to any issue of copyright infringement. Because he had so transformed the photograph into a new and independent work, this seemed like a no-brainer. The Associated Press, though, wanted Fairey to license the work so they could get the windfall of fame and money. Here’s a recap of the breakdown:

Fair Use Argument:
The AP Has No Case Against Sheppard Fairey
(Feb 8, 2009)
Johnathan Melbur explains the whole issue very well, so I won’t reinvent the wheel:

“The term “fair use” gets batted around a lot, often incorrectly, and so deserves some explanation. At the most general level, copyright law prohibits you from copying another person’s original creative work. That means you’re typically not allowed to create work using someone else’s original unless you pay that person. “Fair use” is an exception to this rule: it says that sometimes you don’t have to pay someone to use his or her original work. Whether you do–that is, whether your new work qualifies as “fair use”–depends on what, exactly, the original work is, how much of it you’re using, how you transform it, and whether your new work hurts the commercial market for the original. (Note that the issue has nothing to do with whether anyone thinks your use is “fair.”)

By far the most important factor is how you transform the original work–but, contrary to popular belief, the transformation that really matters is the conceptual one, not the physical one. ”

Of note, the Electronic Frontier Foundation also notes this claim, which seems to have fallen away by comparison to the fair use claim by Fairey. The idea is that the Means By Which that Fairey used to create poster was digital, therefore he violated the DMCA because there are digital protections. While this idea definitely has a bit of merit, it is a stretch.

AP invokes DMCA Against “Hope” Poster Artist
(March 3, 2009)

“The AP counter-sued  Fairey for violation of Section 1202 of the DMCA , which prohibits the removal of copyright management information (“CMI”) from copyrighted works or the distribution of works whose CMI has been removed. The DMCA question has received little attention compared to whether Fairey’s use of the photograph by AP photographer Manny Garcia is a fair use under copyright law  (or even whether Fairey took any creative expression  in the first place).

What’s the CMI that Fairey is accused of “stripping” from the original photo? Well, the AP complaint  is not entirely clear on this question. In one part of the complaint, AP alleges that all of its digital photos include digital metadata that Fairey allegedly “stripped” from the image. In another part of the complaint, AP seems to rely on Fairey failing to preserve the “copyright notice line” at the edge of the photo.”

But now the ABA is reporting this:

Copyright Dispute over AP Photo in Obama Poster Is Resolved with Deal to Collaborate

By Debra Cassens Weiss

“The artist who used an Associated Press photo of Barack Obama to create the hot-selling “Hope” poster will share rights to the image with the wire service.

Artist Shepard Fairey and AP announced today an agreement in principle to settle their litigation. The deal provides that Fairey and AP will share rights to make posters and merchandise with the Hope image, according to a press release  and an AP story . Fairey will also collaborate with AP on a new series of images that he will create based on wire service photos.”

They apparently have a “Deal to Collaborate”, which comes with undisclosed financial components that reeks of a settlement to my intuition. Funny thing about the small article, though, neither has given ground on their legal opinion. Nevertheless, Fairey will be working with the AP to produce a new series of photos (good for him), but says he won’t use any more AP works without obtaining a license…

So he fights a major battle for the right of Fair Use and then does a 180º?

If something is truly fair use, and you intend to fight for it, then that’s one thing. You get the support and admiration of a generation of creators who can be assured (with a legal ruling) that they have the freedom to transform popular culture into new mediums of personal expression. Not only that, but their won’t be a pay out for the many number of potential people who want in on a windfall.

Personally, I was hopping this could be another 2 Live Crew  moment which could give modern guidance to fair use.  (The Acuff-Rose case that involved 2 Live Crew is a classic demonstration of fair use by means of parody for music.) With Fairey, the issue would be an artistic transformation that so completely transforms the original picture that whoever owns said inspiration can’t come after you for a piece of your fame. That the transformation is so complete that it is its own piece, rather than a derivative work.
But logically, if you can’t afford to keep up in a lawsuit or it’s more profitable to just join forces with a corporate giant, then I guess you win in the end. You just don’t end up in the annals of (legal) history as  a hero of fair use. You’re just another (very profitable) sell-out, which seems to be the modern plague.
Entertainer at Law

Now I say all this based on the facts that I have. If anyone knows more about the minute details of what happened here, especially dealing with the negotiations between the two, feel free to chime in. The sentiment is the same, though, for the present outcome. No lawsuit, no ruling, no clear protection for future creators.

(c) Nicole L. M. Jurkowski 2011


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