Posted by David Post:
AP, Copyright Infringement, and the Hope Poster:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234399793
As pretty much everyone is surely aware by now, the Associated Press
[1]has claimed that the iconic "HOPE" image created by Shepard Fairey
for the Obama campaign, and featured on everything from posters to
t-shirts to mugs to buttons, is an infringement of the copyright in an
AP photograph of Obama, taken by Mannie Garcia. AP photograph
Putting aside questions of whether the AP showed particularly good
judgment in threatening Fairey with an infringement suit (it did not,
imho), on the merits the AP claim looks very weak to me, on two
grounds:
1. It's not an infringement of their copyright in the photo. Fairey
admits that he copied from the photograph in making his image - but
copying does not necessarily imply copyright infringement. You're
allowed to copy things from others, if the things that you copy are
not protected by copyright. Garcia's photograph is, certainly, a work
protected by copyright -- but only its "original" elements are
protected. The photographer has no protection for depictions of what
the world (including Pres. Obama) actually looks like, but only in the
artistic and creative decisions that are given visible expression in
the photo. There's certainly some of that in the photo -- the
background, for example, and perhaps the lighting and exposure that
Garcia used. But what Obama looks like, and the tilt of his head, are
not protected original elements of the photo, because they do not "owe
their origin" to the photographer. And to my eyes, the things that
Fairey copied are precisely those, unprotected elements of the photo.
He didn't take the background, and he didn't take the lighting - those
are the things he changed. What he took was Obama's face, and the tilt
of his head -- not infringment, to my eyes.
2. Even if Fairey copied copyrightable elements of the photograph,
he's got a very, very strong fair use defense. One critical part of
the fair use inquiry is: did the defendant have a "transformative
purpose" in using the copyrighted original. That doesn't mean "did the
defendant transform the original" - it means "did the defendant have a
purpose significant different that the purpose for which the original
was created. The AP photo was created for a purpose -- as a news
photograph. Fairely's purpose was completely different -- he's making
a political statement (duh!), and attempting to get voters to believe
in the message of "hope," and all the rest. Courts have, in recent
years, indicated that this factor is central to the fair use defense,
and I think it gives Fairey a very strong case.
Prof. Jane Ginsburg, a prominent copyright law prof at Columbia Law
School, is quoted here saying that she "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."
It is pretty radical - but it's also correct. Anybody's photograph is
fair game -- that's precisely what "fair use" is all about. "It is not
infringement of copyright to make fair use of a copyrighted work," in
the words of the Copyright Act -- any copyrighted work, of any kind,
anywhere, at any time, is fair game to be used, if it is used
"fairly." And I don't think the failure to credit the AP has anything
to do with that analysis -- maybe it would have been nice for Fairey
to give Garcia credit, but I do not believe that the law of fair use
makes that a relevant consideration.
And finally, in the "be careful what you ask for, it might come back
to bite you in the ass" department: now it turns out that the AP,
having started this ruckus, might not even own the copyright in the
photograph at all. Garcia [2]is apparently claiming that he, and not
the AP, is the copyright owner, because (a) he was not an employee of
the AP when he took the photo (which would give the AP the copyright
under the "work for hire" doctrine", and (b) that his contract with
the AP does not transfer his copyright to them. So the end product of
all this may well be that the AP has no claim against Fairey, and no
copyright at all in the photo.
References
1.
http://www.philly.com/philly/hp/news_update/20090205_A_flap_over_Obama_poster_and_AP_image.html
2. http://www.nytimes.com/2009/02/10/arts/design/10fair.html?em
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
