Obama Icon Takes on the Copyright Act

The story about the Obama campaign icon artist Shepard Fairey and accusations of copyright infringement by AP has been bouncing around news sites and blogs in the last few days. In an interesting preemptive move, Fairey the creator of the ubiquitous red and blue Obama “Hope” image, filed suit in Manhattan against AP, the apparent owner of the original photograph that Fairey allegedly copied. As the Times reported, Fairey’s suit seeks a declaratory judgment from a Federal court, specifying that his work is not an infringement of AP’s photograph.

Donald R. Winslow of the National Press Photographers writes that Fairey has admitted to finding the AP photo on the web and using it as the basis for his Obama poster. On the surface it seems to be a straight forward case of infringement. However, Fairey’s attorney, Anthony T. Falzone** claims that the artist’s work simply references and transforms the original AP photo. In essence, Fairey claims a fair-use of the photograph.

This situation and others like it represent the collision area of the traditions of art, the structure of the law, and the rights of others. 

Artwork that draws upon the work of others without authorization is sometimes referred to as appropriation art. It is essentially, a horizontal version of the traditional progress of art, where artists draw upon the artwork of the past and build upon it. The main difference between contemporary appropriation art and the traditional process in the history of art is time and copyright laws. Regardless, of one’s position on this issue, it is important to look at all sides, all 3 dimensions of the problem.

 

Mannie Garcia and Shepard Fairey's Obama images

 

 

The Copyright Act specifies that making derivative works is one of the exclusive rights of the copyright holder. “…the owner of a copyright…has the exclusive rights to do and authorize…to prepare derivative works based upon the copyright work.” (17 U.S.C. Section 106, excerpt). As a compliment, arising out of the First Amendment’s free speech provision is the concept of fair-use which serves the purpose of protecting such communication in the context of copyright. The question suggested by Fairey’s suit is whether the Obama poster image is a derivative work, and if it is, whether it is a fair-use of the original photograph. Fairey appears to argue that his Obama image transforms the original photo, and thereby mitigates in favor of a fair-use, rather than just supplanting the copyright owner’s rights.

Fair-use is one defense to copyright infringement. This strategy is expected here if Fairey’s first-round declaratory judgment fails, and assuming that AP files a counter suit of copyright infringement. In a fair-use defense, the court will weigh various factors, such as purpose and character of the use, the amount of the original photograph used, effect on commercial market of the original, and potentially other factors as well. These are not yes or no questions, rather, they are an exercise in balancing. If the factors lean in Fairey’s favor, then he succeeds in the fair-use defense, if not, it then gets more complicated for him. (For more info, see my article on infringement and fair-use on ArtUntitled.com).

In a further twist, the original photo was apparently taken by Mannie Garcia who claims that he still owns the copyright.*  Typically, in work for hire situations the copyright is owned by the employer. Photographers usually work under contract in such a situation and the ownership of the copyrights should be specified in the document. AP said, “Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.” And, Garcia said, “…. I’m not going to fight with them about it.”*  From Mannie Garcia’s statement, it appears that he is not planning to challenge AP’s apparent ownership of the copyright. According to the National Press Photographer’s interview, Garcia is pleased with the Obama poster and (assuming he does in fact own the copyright) has said that he has no intention of seeking payment from Fairey for use of his original image.

A key point in this evolving situation is whether the “Hope” image and its progeny, as socially significant images, will effect the balancing factors and the outcome of a potential Fairey fair-use defense. Arguably, Garcia’s photo was one among many similar such images of Barack Obama on the campaign trail. Fairey’s iconic poster profoundly represents–perhaps helped to inspire–a mass social and political action.

Does social significance translate into a transformative use?  

In this sense, Fairey’s poster has potential to effect more than politics and social action; it has the potential to effect, or further define the copyright law and the legal status of appropriation art.

 

*AP Restates Ownership; Claims Copyright Infringement Of Obama Poster Image

**Artist Sues The A.P. Over Obama Image

 

An UPDATE on this story is here.

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