Fighting the AP
I’m not a big fan of Shepard Fairey’s work, so I shied away from commenting on this story. But I’m really glad to see Fairey fighting back instead of settling. I’m tired of law suits, intimidation and takedown notices because big companies have big bucks to pay big lawyers to threaten people who have made creative work that is not infringing on copyright and is within fair use guidelines. Fairey’s lawyers are from the the Fair Use Project at Stanford University. They provide legal support and access to lawyers who defend copyright claims pro bono or at reduced rates to fight these big companies with deep pockets in order to help extend the boundaries of fair use and enhance creative freedom.
There are four factors to be considered in determining whether or not a particular use is fair, and I’d like to examine how Fairey’s poster measures up to these criteria.
1. “The purpose and character of the use, including whether such use is transformative, of commercial nature or is for nonprofit or educational purposes”
Fairey’s lawyers contend in the suit that he used the photograph only as a reference. He transformed the image into an “abstracted and idealized visual image that created…new meaning and conveys a radically different message” from the photo Mannie Garcia took. Fairey used the photo as inspiration to help create something new; it was not merely copied verbatim. Also the purpose of the poster was political and nonprofit. Fairey has said that he did not receive any of the money raised; it went to the campaign and the National Endowment for the Arts.
2. “The nature of the copyrighted work”
The courts tend to give the user more leeway to copy from factual works. The photograph was taken in the context of news reporting and, I feel that the photograph was used primarily for factual information. What does Obama look like? What shape are his features? How does the light fall across his face when it is tilted up? Most artists who make representational works, must refer to photos to see what something looks like in order to render it, especially when it comes to things they don’t normally have access to personally.
3. “Amount and substantiality of the portion used in relation to the copyrighted work as a whole”
Although the AP is comparing the poster to a much cropped down version of the photograph, the original photo pictures both George Clooney and Obama with a flag in the background. Fairey actually only used a small portion of the entire photograph.
4. “The effect of the use upon the potential market for or value of the copyrighted work”
Another important fair use factor is whether the use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. In this case the opposite has happened. The poster, if anything, has substantially increased the original photo’s value and its marketability.
I think Fairey meets all four criteria of fair use and I hope his lawyers are able to prove his case. It would be a step in the right direction in breaking down the stranglehold on creativity that copyright laws and overzealous copyright holders have triggered. The original intention of the copyright provisions were to stimulate, not stifle, creativity, but today that spirit and purpose have been all but lost in the corporate grab of intellectual property.
(Also an interesting twist: Mannie Garcia, a temporary hire and no longer with the AP, claims that he is the copyright holder, and he seems to be much more sympathetic to Fairey’s fair use claim.)
UPDATE: Jonathan Melber at the Huffington Post also thinks the AP has no case against Shepard Fairey.
UPDATE: Watch the “LIVE from the NYPL & WIRED” podcast of Remix: Making Art and Commerce Thrive in the Hybrid with Lawrence Lessig, Shepard Fairey and Steven Johnson.