EDITED BY JILL SCHACHNER CHANEN / CHANENJ@STAFF.ABANET.ORG
After reviewing the Fairey and AP
images, it gets to be harder and
harder to see what that photographer’s value added is, Jaszi says, noting
that copyright “protection for candid, unposed shots of news events is
thin.” He also says that “this case
pushes us to how far and how low to
set copyright protection.”
But Melbourne, Fla., copyright
lawyer Eugene R. Quinn Jr. disagrees.
In his IPWatchdog blog, Quinn says
that Fairey used aspects of the AP
photograph that “copyright law recognizes as most protectable ... the
exact pose, same tilt of the head,
same gaze and the same expression
on President Obama’s face.”
Hope for Copyright
THE NOW UBIQUITOUS BARACK OBAMA HOPE POSTER MAY HAVE
inspired millions in last fall’s presidential election, but it also
has inspired a fierce debate among lawyers about the limits
of copyright protection.
Last year artist Shepard Fairey created the Hope poster by
using a portion of an Associated Press photo taken of Obama with actor
George Clooney in 2006. After the AP informally accused Fairey of copyright infringement, Fairey fired a pre-emptive strike, asking a federal
court in Manhattan to declare that his use of the photo had a “
transformative” purpose and was protected under copyright law’s fair-use doctrine.
In mid-March the AP fired back, disputing Fairey’s fair-use assertion and
countersuing for copyright infringement. AP’s counterclaim alleges that the
poster does not “alter any of the distinctive characteristics that make the
Obama photo so striking.” The counterclaim further asserts that “Fairey
has done nothing that would excuse his blatant copying of, and creation of
derivative works based on,” the AP photo.
But what seems to be a fairly simple question about copyright protection
is actually a lot more complicated, says American University law professor
Peter Jaszi. He and other experts agree that Obama’s face alone as an element in the AP image is not copyright protected. To be protected the photographer needs to add significant value to an image through, for example,
the pose or the lighting.
In the case of the Hope poster, the question is whether other elements
of the image—the angle of his famous face, the lighting and the shading—
give this unstaged photo protection. “If photographers go out and simply
photograph the Washington Monument over and over again ... it is not
clear that the second or 10th time that it is protected,” he explains.
MANY FACTORS AT ISSUE
FAIR USE MAY ALLOW AN ARTIST TO
use a portion of a copyrighted work
if the purpose differs from the original or, in other words, becomes
transformative. Courts also consider
other factors like the nature of the
work, the portion of the original
work used and the impact on the
original work’s value.
Fairey’s attorney, Anthony Falzone
of the Stanford Center for Internet
and Society’s Fair Use Project, says
photographer Mannie Garcia took
the AP photograph to document a
news event. In contrast, Fairey’s
transformative purpose was to “
inspire, compel or convince” others to
see Obama’s leadership.
“It is a clear case of repurposing
and adding value,” Jaszi says.
The “great weight” of court authority is against Fairey’s claim, and
courts will be reluctant to favor
Fairey’s use because it “would kill
the [photography] industry,” Quinn
wrote on his blog.
Fairey also was strategic in his legal action. The federal court handling Fairey’s case previously sided
with an artist, Jeff Koons, who used
part of a professional photographer’s
photograph in a collage.
—Hope Viner Samborn