By Dan Kennedy • The press, politics, technology, culture and other passions

AP’s copyright complaint a likely loser

You can’t judge a copyright case ahead of time. But based on the facts, I’d say the Associated Press’s copyright complaint regarding the Barack Obama “Hope” poster is a loser. The AP is seeking compensation because the artist, Shepard Fairey, used a photo taken by the AP’s Mannie Garcia.

“Fair use” — the doctrine under which you can use a copyright-holder’s work without permission and without paying for it — specifically allows for works that are “transformative.” That is, if you build upon someone else’s work rather than simply passing it along unaltered, there’s a good chance the copyright police aren’t going to bust you.

That was the principle in Campbell v. Acuff-Rose Music Inc., a 1994 case in which the U.S. Supreme Court ruled that 2 Live Crew were in the clear with its parody version of Roy Orbison’s “Oh Pretty Woman.”

In 2001, the California Supreme Court ruled that an artist who made “Three Stooges” T-shirts was not protected by fair use specifically because they were not transformative — they simply used images of Moe, Larry and Curly without any alteration. It seemed clear from the court’s ruling that if the artist had had, say, printed “Bush, Cheney and Rumsfeld” (or “Clinton, Gore and Rubin”) on the T-shirts below Moe, Larry and Curly’s pictures, then he’d have been covered by fair use.

In the recent dust-up between GateHouse Media and the New York Times Co., GateHouse officials said they wouldn’t have minded if the Boston Globe’s Your Town hyperlocal sites included blogs that linked to GateHouse content. What GateHouse objected to was the Globe’s automated lifting of verbatim headlines and ledes — again, no transformative element.

The AP says it hopes its case Fairey can be settled without a lawsuit. I’m sure that’s true. The AP’s lawyers may be counting on Fairey’s paying money to make this go away rather than be subjected to negative publicity.

But if this goes to court, my money’s on Fairey.

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  1. bostonmediawatch

    I never cared for the poster, but it’s an easy call fair-use-wise.The use is transformative, in a lazy, Warhol-meets-Che-T-shirt kinda way.

  2. HNG

    AP raised its ears after the altered image became popular and presumably made some money for the artist and others–although the artist himself says he hasn’t made much money from the photo.

  3. Dan Kennedy

    Robin: Please stop trying to post anti-UUA material. I’m going to delete every comment in which you do so.Everyone: Sorry if this makes no sense, but I don’t know how to contact Robin otherwise.

  4. Mike F

    The AP oughtta be careful here. Their photo looks suspiciously like a copy of The President’s face.

  5. W Rand

    My understanding of “fair use” is that it generally is allowed as part of commentary, reporting or parody on the original work. Other uses, if I remember right, appear to be more of a crap shoot when you get to court.I’ve read warnings for illustrators in the past to make sure you own the rights to any images you use in your work even if you are redrawing the images. It seems like a very murky edge between allowed use and copyright violation.On the other hand, if Fairey hasn’t said he used the AP photo and that particular event/Obama pose was photographed by many other photographers then AP might have even less of a case.

  6. bostonmediawatch

    There is a little more context to this.The Obama poster is transformative not just because it’s turned into a drawing, but because its purpose is also presumably different.However, Fairey has been accused of coming much closer to the line.

  7. Rob

    Great analysis, Dan. Thanks.

  8. Lesley

    In an interview on NPR that aired a month or so ago, Fairey said he didn’t know who the photog is but that he’d be happy to pay up if he’s contacted. So now that he’s caught up on copyright law, specifically fair use, maybe he’ll settle – for the courtroom. What’s weird is that the guy has made art his whole life yet he didn’t know that he could be violating copyright law when he used someone else’s pic? Go figure. Anyway, I agree with your take on this, Dan.

  9. BosPhotog

    Dan, I am surprised at you. Hasn’t Mrs. Media Nation explained to you a thousand times that these photos don’t just “snap” themselves. There is a journalist behind that camera. An artist equal to Mr. Fairey. Let the court decide, and hopefully they will decide wisely.P.S say hi to Mrs. Media Nation…Thanks

  10. Dan Kennedy

    BosPhotog: She agrees with me! Sorry, but this isn’t even a close call. The AP might have an ethical case, but it doesn’t have a legal case. Good to hear from you.

  11. mike_b1

    Dan, often an AP item is picked up and run with minimal changes in local papers under the byline of a local reporter. How is that not plagiarism — even if the local paper is paying AP for the wire?

  12. Balhatain

    In order for fair use to work for you the image you create base the new artwork from almost has to be iconic itself. Social comment and parody under fair use implies that viewers will be aware of the dialogue that is going on concerning the base work and the new work. The fact that the AP and the photographer did not realize the connection shows just how fragile Fairey’s claim of fair use really is. Thus, no one is doing Shepard Fairey any favors by suggesting he did a good job transforming the image because transformative works under fair still imply that a dialogue between the base image and new image is needed in order to be legit fair use. The photograph itself is not iconic so it was not the best image for Fairey to work from under fair use. Had the photograph been widely known it would have been acceptable to use under fair use. Unfortunately for Fairey people do not say “Look, he is commenting on Mannie Garcia’s photograph for the AP” when they view the Obama posters– actually they might say that now due to all the exposure this story has had, but that is beside the point.The irony of this is that Shepard Fairey has sent cease and desist letters to artists who have made visual comments on or parody of his images– some of which are considered “iconic” now. A lot of people have been pointing out how Baxter Orr made a parody of Fairey’s widely known Obey Giant poster. Orr added a SARs mask to it and called it Protect. He worked within fair use because the base image, Fairey’s poster, was widely known. Thus, there was dialogue going on between the two images. Orr successfully commented on Fairey’s poster while establishing parody as well. I don’t know if Fairey’s cease and desist letter scared Orr off from distributing Protect or not. Under fair use if an image is famous it is pretty much fair game for fair use. So in that situation Fairey was being a major hypocrite in my opinion. In other words, Fairey could probably learn from Orr when it comes to fair use. Honestly, look at the examples people are coming up with to defend Shepard Fairey. People are mentioning Warhol’s Monroe prints and his soup cans. The difference between Warhol and Fairey is that Warhol used images that the public knew of. The Monroe photograph was famous on its own and most of America had served the soup at one point or the other. Thus, a dialogue was established. Fairey on the other hand has a history of using images that are not widely known and that the public does not have a connection to only to cry fair use when exposed. In short, Shepard Fairey does not understand fair use or he tries to twist it for his own benefit.

  13. Balhatain

    Newspapers can run images because it technically falls under educational purposes and the paper– though I suppose this could be debated– is not profiting from the image itself. Now, you could say that Fairey used the image to educate people– which is true to a point–, but that does not fly where profit for the image itself is concerned. Fairey did profit from the image. It is great that he donated the profit to a cause he believes in, but it is still profit no matter how you try to throw the dice. The owner of the copyright has every right to seek compensation. Fairey is not new to this game– he should have known to contacted the AP from the start.The portrait is a stencil portrait. There is article after article that states that it is a stencil portrait. It seems that only recent articles involving Fairey have called it strictly a ‘drawing’ or ‘painting’. As you probably know, stencils are created over an existing image– in this case a scanned and enlarged image of the photograph. Even if he had drawn the outline without using a stencil it would still fall under copyright infringement since it would have still involved the photograph that he did not own.My guess is that Fairey will want to settle out of court like he did with the Rene Mederos estate in 2007. If it goes to court any details involving lawyers could come back to haunt him– meaning each time he has settled out of court could be spotlighted to show that he has a history of willfully infringing on copyright protected works. His records could be spotlighted as well to find out if he did indeed donate all profit as he claims. In other words, what comes out in court could potentially ruin his career as far as how he appears to the public at large. He does not want to be known as a liar and a cheat. A lot of people like his art for the truth they see in it.The question is– will the AP allow him to settle out of court. Technically they could go after all profit if they desired. As a business it would help them to send a clear message to others who wish to violate their copyright.Who knows what could happen in court. Worst case scenario for Fairey is that he is found to have lied about profit and other key issues that would question his integrity– in which case he may have to rely on advertisement gigs with Pepsi and other companies instead of touching the hearts of viewers with his personal works.

  14. Dan Kennedy

    Mike: That would be plagiarism, which is not a crime. As I told BosPhotog, maybe the AP does have an ethical case, but not a legal one. The difference is that anyone with half a brain knew Fairey was working from an image of one sort or another.

  15. the nut

    Regardless of what happens in court or what you think of appropriation in the broader context of Fairey’s work (it’s a theme), I really can’t see the PR aspect of this ending well for the AP. Seems like a missed opportunity – as the first commenter here noted – to be proud of being a part of something that inspired so many. Sheesh. GL, AP.

  16. Ben, N1WBV

    Good Counterpoint here from PhotoAttorney:

  17. Sam

    Seems to me that the case will be settled on whether the judge finds drawing to be transformative. He may have traced major shapes but he made a number of choices (his shading style, colors, text) that took the photograph to the realm of popularity it now enjoys. If anything Fairey’s work has increased the value of the original which would never have been plastered on the t-shirts of a generation. I hope the judge has picked up a pencil, if he has then Fairey is in the clear!

  18. Amused

    Fairey will settle all right, but not to avoid negative publicity. He’ll settle to avoid bankruptcy.Clearly an AP-owned image was electronically altered to produce another work. The AP image was the basis of the new work, and formed substantially the whole of the new work, right down to the shadowing.That’s not fair use. It wasn’t used for scholarship, parody, criticism, teaching or reporting and was sold commercially — with a premium asked and paid for the artist’s signature. Fair use isn’t created because some graphics program did some color swapping to the original work. I don’t know if the AP has a policy with respect to licensing photographs for use in political posters, but certainly if it does, that is a significant act toward protecting its copyright against the particular use to which the artist put the foto.Judgement for The AP. Plus attorney fees. And anyone who has ever made a living writing or taking pictures ought to be glad to see the copyright defended.

  19. Marc Larocque

    Shepard Fairey is a hypocritical scumbag.Check it out: here, Dan Wasserman, of the Globe, has all the dirt Fairey:

  20. Dan Kennedy

    Yes, total hypocrite.

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