Tag: copyright

As one of my students, Marc Larocque, puts it, “Shepard Fairey is a hypocritical scumbag.” That’s really the only proper reaction you can have upon learning that Fairey, who’s fighting a copyright complaint lodged by the Associated Press, has himself charged an Austin artist with copyright violation for doing exactly the same thing.

The artist, Baxter Orr, took Fairey’s iconic image of Andre the Giant and put a respiratory mask on it — precisely the sort of “transformative” use that Fairey is relying on in his own repurposing of the AP’s Barack Obama photo to make his Obama “Hope” poster. Boston Globe cartoonist Dan Wasserman has all the details.

Fairey is up to his neck in it at the moment, filing a pre-emptive lawsuit against the AP and defending himself against vandalism charges brought by the Boston police. I still think his Obama poster is protected under the fair-use exception, as I wrote last week. But so is Orr’s Andre the Giant image. These are nearly identical cases, and it’s amazing that Fairey doesn’t see it that way.

Update: Gee, Fairey’s problem with Orr couldn’t have anything to do with the fact that Orr seems less enamored of Obama than Fairey does. Could it?

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.