Shepard Fairey on Fair Use: The Rachel Maddow Interview

The artist who is at the center the Obama “Hope” copyright infringement lawsuit, Shepard Fairey, appeared on the Rachel Maddow show last night. Fairey has admitted to utilizing an AP photograph to create his “Hope” image and filed suit for declaratory judgment as the dispute over the unlicensed use of the photo escalated. The Associated Press responded with a counterclaim for infringement earlier this past week.

Responding to questions about the “flaws” in the Associated Press’ infringement argument, Fairey referred to the factors that are considered by courts in copyright infringement cases when a fair-use defense is involved. Fairey stated that,sf_ap_23 in terms of (copying) a photograph like the AP’s Obama image, the new artwork “transforms both the intent and the aesthetics of an image [and] is actually a valuable new piece independent of the original.” He also stated that his work “does not compete with the original market [of the AP photograph].” Fairey also cited “access” to public figures and the public dialogue (commentary) as fair purposes for infringing news service photographs in creating  artwork.

Fairey said that he is fighting against the infringement charge not just for himself, “but for the rights of all artists who make grass roots images about, for, or against leaders that they don’t have access to having personal portrait sittings with or possibly the financial means to license an image in order to make something that makes a comment and speaks to the public.”

It will be interesting to see how much weight Fairey’s “access” and “financial means” arguments will hold weight, and if they do, whether this will serve to weaken the copyrights of news/public interest related imagery.

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Watch the full interview on youtube.

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2 Responses to “Shepard Fairey on Fair Use: The Rachel Maddow Interview”

  1. Elizabeth Russell Says:

    Fair use is not the only issue in this case. A fundamental issue that Mr. Fairey should be considering is this: is the underlying photograph copyrightable at all? That is to say: does it contain sufficiently original expression fixed by the photographer? I don’t know the answer, and only a judge or jury can say for sure. But it’s very possible the answer is, “no.”

    • Jennifer Unruh Says:

      There may be a misunderstanding about originality and fair use – let’s make sure we’ve got it right.. Photographs have been recognized as legally copyrightable subject matter since 1884. Burrow-Giles Lithographic v. Sarony. The court in that case found that a photograph, a portrait image of Oscar Wilde, was sufficiently original to qualify for copyright. The technical and aesthetic choices of the photographer are sufficient for the originality requirement. Originality in the meaning of copyright, simply means a small amount, a modicum, of originality. It’s important to realize that the colloquial meaning of “originality” is somewhat different from the legal/copyright definition. To be original, doesn’t mean that the work has to be extremely different from every other photograph. Mr. Garcia, the AP photographer, chose the angle and when to push the shutter release. That’s enough—it’s original.

      In a casual, non-legal, sense originality may mean the merit or quality of the work. However, the 1903 case, Bleistein v. Donaldson Lithographing Co., found that it’s not up to the court to decide the worth or merit of the work. Quality is not an issue that determines a work’s eligibility for copyright protection.

      Also, remember that copyright protection is automatic in the United States. Registration is only required to file a lawsuit. So, there really is no issue of whether the original AP photo is copyrighted—it clearly is.

      Fair use is really the only significant issue here, as it always exists as a balance between a property right–copyrights–and free speech. Fairey has admitted to infringing AP’s rights; fair use is defense to that violation. The question here, really, is whether Fairey’s reasons for infringing the photo qualify as a fair use or not. The interesting thing, to me, is whether Fairey’s case—if he is successful—can create a common law expansion in the definition of fair use to include access and financial reasons. For artists particularly, this could be really significant and that is what makes this case interesting (along with the political/pop culture connection).

      The Copyright Act can be found in the law tab of the Copyright Office’s website.

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