Fairey Use

Sorry about the subject line pun…

Anyway, there’s a bit of a to-do lately: AP has argued that Shepard Fairey, the artist who created the famous Obama “Hope” image, owes it money for use of a copyrighted image. In turn, Fairey has pre-emptively sued AP, arguing fair use. In what now seems to be an anticipatory shot across the bow on Fairey’s behalf, writer and attorney Jonathan Melber argues for Fairey’s fair-use rights of the Obama image.

It seems to me Melber is exactly right (although of course I’m no attorney).

First, it seems the image isn’t AP’s to begin with. It properly belongs to the photographer, Mannie Garcia, since (as Melber points out) “Under copyright law, you own the copyright to whatever you create unless you grant it to someone else in writing.” Garcia says he never signed over copyright to AP.

Even if AP had copyright in the image, what Fairey did with the image clearly fits several criteria of fair use. First, Garcia’s photo was used simply to illustrate a news story – and therefore, focuses primarily on the “who, what, where, when, and why” of the image, in Garcia’s words. In Garcia’s photo, the flags lining the room are clearly visible behind Obama, and Garcia strove to capture Obama at a moment his face conveyed something essential about his campaign. Fairey altered the angle of Obama’s face (curiously, an Onion parody of Obamamania seems to have noticed this…), moved his head up in the image, deleted the background, stylized the color and focus, and added the word “HOPE” below Obama – thereby transforming the focus of Obama’s gaze, from a mundane looking upward at an unseen speaker or listener to a symbolic gaze into the future.

The above summarizes the ways in which Fairey’s image is “transformative,” which is one of the criteria an image must meet to meet fair-use guidelines. Melber lists the others as the nature and purpose of the original (as opposed to derivative) work, how much of it is used, and whether the derivative use hinders the economic value of the original.

The last is easily dismissed: Melber notes that Fairey’s poster has vastly increased the value of Garcia’s image (which is, of course, one reason that AP wants in). The different purposes of the two images can be read from the way Fairey transformed the image: from an image illustrating a newsmaker into a stylized essence of a political campaign.

Ultimately, though, Fairey’s iconic image is already out there, already far beyond the reach of the courts. Inevitably, there’s a website where you can “Obamafy” any image, and certainly Fairey’s image is likely to be the iconic image of this political campaign as it’s remembered in the future. AP is, in this case, desperately trying to slam the door on the twenty-first century and bring back an outmoded notion of “intellectual property” that doesn’t understand the near-infinite reproducibility and adaptability of contemporary digital media. Even if AP had sued Fairey and won, they would have gained no real control over the image and its use, and in fact, they likely would have had to spend more money monitoring its “illicit” use, lest they lose copyright through allowing others to freely use the image unchallenged. Mannie Garcia’s much smarter: he’s selling signed prints of his original image (which clearly is the inspiration for Fairey’s poster, as no one denies) for a much higher price than he could have gotten had Fairey not used his photo as the basis for his work. So: the original photographer wins, the artist of the derivative work wins…AP loses, simply by greedily trying to game the system in its favor (and, as Melber suggests, throw its weight around in order to compel the law to bow to its will).

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