The AP Has No Case Against Shepard Fairey

Why is the AP acting like it has a case? Because juries are unpredictable, copyright law is confusing and defending a lawsuit is extremely expensive.
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A few days ago, the Associated Press announced that Obama's famous HOPE poster amounts to copyright infringement. The artist behind the poster, Shepard Fairey, has never hidden the fact that he based his iconic creation on a photograph he found through Google. The AP thinks it owns the copyright to that photograph, since Mannie Garcia was freelancing for the AP when he shot it. With posters sold out, a special edition in the National Portrait Gallery, and major exhibitions in New York and Boston, the AP wants in on the windfall.

But the AP would very likely lose this case if it ever ended up in court. That's because, under copyright law, Fairey's work almost certainly qualifies as "fair use" of Garcia's photograph.

The term "fair use" gets batted around a lot, often incorrectly, and so deserves some explanation. At the most general level, copyright law prohibits you from copying another person's original creative work. That means you're typically not allowed to create work using someone else's original unless you pay that person. "Fair use" is an exception to this rule: it says that sometimes you don't have to pay someone to use his or her original work. Whether you do--that is, whether your new work qualifies as "fair use"--depends on what, exactly, the original work is, how much of it you're using, how you transform it, and whether your new work hurts the commercial market for the original. (Note that the issue has nothing to do with whether anyone thinks your use is "fair.")

By far the most important factor is how you transform the original work--but, contrary to popular belief, the transformation that really matters is the conceptual one, not the physical one.

Take, for example, an influential 2006 decision vindicating Jeff Koons. A fashion photographer named Andrea Blanch sued Koons for using a picture of hers in one of his paintings without paying her. Koons had scanned her photograph, which she had taken for a Gucci ad, and cut and pasted it into a digital composition he then painted. The federal appeals court said that Koons didn't need to pay Blanch to do what he did, because of how thoroughly Koons had transformed the photograph.

The court explained that a "transformative" work adds something new to the original work, alters its message or meaning, takes on a different character or furthers a different purpose. It treats the original work as raw material in the creation of new expression, new aesthetics or new insights. Koons's painting was "transformative" because it made a new statement altogether different from Blanch's. Whereas Blanch said she was interested in creating an "erotic sense," Koons explained that he wanted his audience to reassess its experience with commercial products and to consider how mass-marketed images "affect our lives."

The other "fair use" factors matter too, and courts have to assess all of them. Taking from a published work is more likely to constitute "fair use" than taking from an unpublished one. The less you use of an original work, and the less your work harms the commercial value of the original, the more likely your work will fall under "fair use." But these factors pale in comparison to the issue of transformation. (This, by the way, is why it is never a question of what "percentage" you use of an original work--a pervasive misunderstanding in the art world. The question is how significant to the original was the part you used, and how much did you transform that part to create your new work?)

Fairey's HOPE poster is clearly a "transformative" work. Just compare the purposes behind the photograph and the poster. Garcia told me that when he shoots for a wire service, as he did the day he took his famous photograph of Obama, his goal is "to show the who, what, where, when and why." This makes sense, as the function of a news photograph is to convey news. It is supposed to be descriptive, accurate. "There's an expression [on Obama's face] that gives it some kind of essence," Garcia said. He also strives to make the location evident in his photos ("If there's a rally in DC, you want to put a monument in the picture"), which is why, even for this "clean headshot," Garcia wanted one of the flags lining the National Press Club room to appear in the background.

Fairey, on the other hand, set out to make an image for a political campaign: something that would inspire people to support a presidential candidate and symbolize their hope. He was creating something aspirational, not descriptive; his message was subjective opinion, not objective fact. To accomplish this goal, as Fairey explained to the Washington Post last year, he simplified the original image, straightening lines to make Obama look "strong"; distilled the color scheme into a modified flag motif; added a hybrid Fairey/campaign logo; and slapped on a large PROGRESS banner. (The campaign later asked Fairey change the banner to HOPE.) Taken together, these artistic choices--and others, such as positioning Obama above the banner, rather than below it, suggesting a leader gazing into the distance instead of a man looking up at a speaker--altered the meaning of Garcia's photograph in service of a significantly different purpose. In short, they rendered Fairey's work "transformative."

And the other "fair use" factors? Well, Fairey didn't harm the commercial value of Garcia's photograph--he vastly increased it. Danziger Projects, a contemporary gallery in New York City, is selling a limited edition of the original picture, signed by Garcia, for $1200 each. (The Museum of Fine Arts in Houston has already bought one for its permanent collection.) The original photograph was published, of course, another factor in favor of a "fair use" finding (though a relatively minor one). In fact, the only factor that probably weighs against a "fair use" finding is that Fairey took the most important part of the original photograph--Obama's face and shoulders--but that factor alone cannot possibly overcome all the others.

It's also worth noting that there's a real question as to whether the AP owns the copyright to Garcia's photograph in the first place. Under copyright law, you own the copyright to whatever you create unless you grant it to someone else in writing. Garcia told me that none of the documents he signed granted the AP the copyright to any of his photographs. He said he was "caught completely off guard" when, according to Garcia, the AP told him in January that they owned the copyright. And he was shocked when he found out the AP was going after Fairey. "I told the AP I don't want to be a part of it," said Garcia. "I don't want to sue anybody."

So why is the AP acting like it has a case? Because juries are unpredictable, copyright law is confusing and defending a copyright lawsuit is extremely expensive. So powerful companies like the AP don't necessarily care whether they would win. They know that most artists cannot afford to hire lawyers, and that even the ones who can will probably prefer to settle out of court than get dragged through three years of litigation. (This kind of attitude isn't really surprising for a news organization that tries to charge the public by the word to quote from its articles.) Fortunately, Fairey is represented by Stanford Law School's Fair Use Project (founded by Lawrence Lessig, the copyright guru behind Creative Commons, and directed by Tony Falzone). You almost want the case end up in court, since a win for Fairey would protect artistic freedom and discourage those who seek to stifle it.

**UPDATE** James Danziger "objects" on his blog to what he calls

the implication that defining yourself as an 'artist' as opposed to a 'photographer' makes you more important and gives you a special privilege. It also implies that a straightforward photograph is of lesser significance or value than a painting or conceptual work of art.

This is a very important aspect of the discussion that, given Danziger's reaction, I probably should have explained more clearly: There is no difference, in value, significance or privilege, between a conceptual work of art and a photograph. It is not an issue of heirarchy, or a debate about what counts as art.

Photographers are artists, and copyright law protects them as much as any other kind of artist. They may create new images using the images of other people's artwork (photographs, paintings, video stills, sculpture, etc.) as long as what they do meets the "fair use" test I describe above. And they may prevent other people from using their images in a way that doesn't count as "fair use."

There are artists, for example, who draw scenes from courtroom trials for news organizations. The fact that their work serves a news function doesn't diminish the value of drawing, or suggest that drawing is "of lesser significance" than other art.

The "fair use" question is not focused on the perceived value of one work of art compared to another, but rather the functional or qualitative differences between them. Had Fairey made his image to accompany a news story about the conference Obama was attending at the National Press Club, he would have a much weaker "fair use" case.

Jonathan Melber is an attorney and co-author, with Heather Darcy Bhandari, of ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career (Free Press), a professional-development guide for visual artists. He and Heather twitter here.

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