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AP, Copyright Infringement, and the Hope Poster:

As pretty much everyone is surely aware by now, the Associated Press has claimed that the iconic "HOPE" image created by Shepard Fairey for the Obama campaign, and featured on everything from posters to t-shirts to mugs to buttons, is an infringement of the copyright in an AP photograph of Obama, taken by Mannie Garcia. AP photograph

Putting aside questions of whether the AP showed particularly good judgment in threatening Fairey with an infringement suit (it did not, imho), on the merits the AP claim looks very weak to me, on two grounds:

1. It's not an infringement of their copyright in the photo. Fairey admits that he copied from the photograph in making his image - but copying does not necessarily imply copyright infringement. You're allowed to copy things from others, if the things that you copy are not protected by copyright. Garcia's photograph is, certainly, a work protected by copyright — but only its "original" elements are protected. The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo — the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting - those are the things he changed. What he took was Obama's face, and the tilt of his head — not infringment, to my eyes.

2. Even if Fairey copied copyrightable elements of the photograph, he's got a very, very strong fair use defense. One critical part of the fair use inquiry is: did the defendant have a "transformative purpose" in using the copyrighted original. That doesn't mean "did the defendant transform the original" - it means "did the defendant have a purpose significant different that the purpose for which the original was created. The AP photo was created for a purpose — as a news photograph. Fairely's purpose was completely different — he's making a political statement (duh!), and attempting to get voters to believe in the message of "hope," and all the rest. Courts have, in recent years, indicated that this factor is central to the fair use defense, and I think it gives Fairey a very strong case.

Prof. Jane Ginsburg, a prominent copyright law prof at Columbia Law School, is quoted here saying that she "questioned whether Fairey has a valid fair-use claim and says that he should have at least credited the AP.

"What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage," Ginsburg said. "I think that's pretty radical."

It is pretty radical - but it's also correct. Anybody's photograph is fair game — that's precisely what "fair use" is all about. "It is not infringement of copyright to make fair use of a copyrighted work," in the words of the Copyright Act — any copyrighted work, of any kind, anywhere, at any time, is fair game to be used, if it is used "fairly." And I don't think the failure to credit the AP has anything to do with that analysis — maybe it would have been nice for Fairey to give Garcia credit, but I do not believe that the law of fair use makes that a relevant consideration.

And finally, in the "be careful what you ask for, it might come back to bite you in the ass" department: now it turns out that the AP, having started this ruckus, might not even own the copyright in the photograph at all. Garcia is apparently claiming that he, and not the AP, is the copyright owner, because (a) he was not an employee of the AP when he took the photo (which would give the AP the copyright under the "work for hire" doctrine", and (b) that his contract with the AP does not transfer his copyright to them. So the end product of all this may well be that the AP has no claim against Fairey, and no copyright at all in the photo.

[Update -- Randy Picker, over at the U Chicago Law School faculty blog, has a somewhat more extensive analysis reaching basically the same conclusion as I do above - DavidP]

TerrencePhilip:
I've long thought they were over-aggressive in their copyright assertions. IIRC, they "forbade" the BCS from using their college football poll in its formula a few years back on "copyright" grounds. The BCS complied, but I thought the AP's theory was bogus on that point, too.

Thanks for the informative post, EV!
2.11.2009 8:09pm
Seamus (mail):
It looks like AP is trying not to lose control of its photo of Obama the way Alberto Korda did with his photo of Che Guevara.
2.11.2009 8:10pm
traveler496:
Thanks for the copyright primer. Not to quibble but..

Farey didn't take the lighting? IANAP but colorization aside, the lighting looks almost identical in the two depictions (note the right/left contrast, chin, under chin, throat, collar, etc.).

As to background, Farey didn't take the details but he did take the theme (at least, I was reminded of a flag when I saw his poster before I knew about the photo).
2.11.2009 8:10pm
Fub:
It is pretty radical - but it's also correct. Anybody's photograph is fair game -- that's precisely what "fair use" is all about.
I'm certainly no copyright expert, but I know portrait artists who paint or draw from photographs. That is, instead of a subject sitting for a portrait, the artist looks at (good, bad or indifferent) photographs of the subject and creates a portrait. Often they work for more than one photograph.

For example, that's one way a family can have an oil portrait of a deceased relative.

I think it would be very strange if those artists were subjected to copyright infringement actions by the photographer(s).
2.11.2009 8:11pm
Crimso:

the iconic "HOPE" image

You misspelled "ironic."
2.11.2009 8:14pm
Doodle McAggity:
Where is the Ginsburg quote from?
2.11.2009 8:16pm
J. Aldridge:
I don't see any infringement. It's transformative and fair use.
2.11.2009 8:26pm
tvk:
I'm pretty sure you get copyright on the particular angle of the photographer (i.e. perspective) and that is being copied, as well as the lighting in terms of shade and not just color. You are giving a pretty narrow construction to copyright scope in photos; which is perfectly reasonable, but not the only reasonable construction.
2.11.2009 8:38pm
Not so sure (mail):
The AP photo was created for a purpose -- as a news photograph. Fairely's purpose was completely different -- he's making a political statement (duh!), and attempting to get voters to believe in the message of "hope," and all the rest.

I'm not sure what election coverage you were watching, but I don't think this is true. I think AP and Fairley had pretty much the same purpose -- "attempting to get voters to believe in the message of "hope," and all the rest"
2.11.2009 8:42pm
BGates:
Fairely's purpose was completely different -- he's making a political statement (duh!), and attempting to get voters to believe in the message of "hope," and all the rest.

Completely different from the AP, a straight-down-the-middle news organization as free from bias as the New York Times.
2.11.2009 8:43pm
David Hecht (mail):
I am curious, do you have any thoughts on how this situation squares up with the incident some years back where Hedy Lamarr sued Corel Corporation over her likeness being used on the cover of Corel Draw 8?
2.11.2009 8:57pm
AF:
I doubt Shepard Fairey is legally estopped from making a fair-use defense, but his cause becomes a lot less sympathetic when you consider that he recently sent a cease-and-desist letter to another artist who parodied his work.
2.11.2009 8:58pm
Bruce Hayden (mail):
Throwing in my $.02

Unless there is something I am missing, there should be a copyright in the original Garcia photo.

The next question is whether or not Fairey made a derivative work of the original photo. I think that looking at the two side by side, that you can tell that his version is based on the Garcia photo, and as such, it would thus be a derivative work. Fairey would have a copyright in the added expression to the Garcia photo, but creation of a derivative work is one of the exclusive rights of copyright holders, and thus there would be copyright infringement (absent license or Fair Use).

Which gets us to the defense of Fair Use.
I don't see any infringement. It's transformative and fair use.
is overly simplistic. You need to look at all four factors under 17 U.S.C. § 107, and J. Aldridge has only looked at one of them. My view is that the determination is not so straight forward, with maybe 2 of the 4 falling on each side.

But then there is a question of whether AP has the legal right to claim copyright here in the photo. Apparently, the photographer, Mannie Garcia, claims not, and that he still owns the copyright. This may get into Work Made for Hire, but even so, a written contract would be required (as Garcia was apparently not an employee of AP at the time).

And finally, Garcia has indicated that he was happy with Fairey's use of his photo. That would likely constitute license (assuming that he still has ownership of the copyright, and not the AP). And, since this license would not need to be exclusive (or an assignment), that should be sufficient, and it need not be in writing.
2.11.2009 9:12pm
billb:
Bruce Hayden: Not all four factors are required to be met for a work to constitute a fair use of another work (at least that's what Bill Patry seemed to think when he was blogging (and previously involved in the drafting), though I admit there might not be any case law that agrees with him).
2.11.2009 9:17pm
AF:
The next question is whether or not Fairey made a derivative work of the original photo.

That's not consistent with the current case law. Despite the frequent attempts of copyright owners, there is no "derivative work" counterdefense to fair use.
2.11.2009 9:20pm
albert:
I am curious, do you have any thoughts on how this situation squares up with the incident some years back where Hedy Lamarr sued Corel Corporation over her likeness being used on the cover of Corel Draw 8?


I think you mean Hedley. Hedley Lamarr.
2.11.2009 9:36pm
cirby (mail):
The "he was making a political statement" defense fails pretty dramatically when you see how he used that image for blatant self-promotion. Sure, he "gave it away," but he funded that giveaway by massively increased sales of his other works.

It's not really that original, anyway. Pretty much anyone with a bit of graphics and design experience can make identical images with stock Photoshop filters (and many people have, in parodying the "HOPE" posters). If the particulars of the image weren't important, why didn't Fairey go to one of the many Obama rallies and take his own photo to work from?

So this work is derivative (not original in any but the slimmest sense), and was used to fatten Fairey's bank account. It's a bit harder to justify "Fair Use" with that background.
2.11.2009 10:17pm
Andrea Pacelli:
See Rogers v. Koons, 2d Cir. 1992, http://en.wikipedia.org/wiki/Rogers_v._Koons. In a similar situation, Rogers (the photographer) sued Koons (the artist) and won, even though IMHO Koons had a better fair use defense than in this case.
2.11.2009 10:24pm
Bruce Hayden (mail):
Bruce Hayden: Not all four factors are required to be met for a work to constitute a fair use of another work (at least that's what Bill Patry seemed to think when he was blogging (and previously involved in the drafting), though I admit there might not be any case law that agrees with him).
Patry obviously knows a lot more copyright law than I do. My memory of the case law was that for awhile, one factor predominated, but more recently, all four have had to be balanced, with maybe a little more weight being placed on whether the use was commercial.

I do find though that there is a general misperception that Fair Use is a stronger defense than it really is. Over the years, I have heard all sorts of things justified on those grounds, and many of them are not.

Note that I am not claiming that the use would not be Fair Use, but rather, that I don't think that it is as clear cut as many believe. Rather, I think that the license defense is probably stronger.
2.11.2009 11:07pm
David M. Nieporent (www):
Bruce Hayden: Not all four factors are required to be met for a work to constitute a fair use of another work (at least that's what Bill Patry seemed to think when he was blogging (and previously involved in the drafting), though I admit there might not be any case law that agrees with him).
There is. In fact, I'll go farther: none of the four factors are required to be "met." The most important is the fourth -- the effect on the market. But it, like the others, is merely a factor to be considered, among any others which might be relevant. See, e.g., Ty vs. Publications International. They're not an O'Connorian four-part balancing test.
2.12.2009 12:05am
Brian G (mail) (www):
Can Vladimir Lenin's photographer's estate sue too? i think the Mickey Mouse copyright extension act (yeah, I know it was the Sonny Bono act) extend copyrights far enough for Lenin's guy?
2.12.2009 12:20am
Awesome-O:
You're allowed to copy things from others, if the things that you copy are not protected by copyright.

It's been a while since I took Copyright, but this doesn't sound right.

Let's say I take a digital photograph of a sunset with some clouds. Then you come along and make a pixel-for-pixel copy. I sue you for infringement. Your defense is that the sun and the clouds are not protected by copyright, so you can copy those elements of my photograph with impunity?

That's not right, is it?
2.12.2009 1:04am
Mike G in Corvallis (mail):
I don't suppose the AP has a signed release from Barack Obama, do they?
2.12.2009 2:21am
Federal Dog:
"It's transformative insipid and fair use stale."
2.12.2009 7:30am
Nano:
This is clearly a derivative work. There is no exception for a derivative work, but the second artist has the copyright in the new elements added. But he violates the copyright of the original artist unless he can show a fair use defense, assuming the original work is protected.

Note that after the dustup, there was a difficult search involved to find the exact photo, and determine the photographer. This shows the uniqueness of hundreds of photographer's images of the exact same subject.

I suspect the artist poured over a number of images too, deciding which to use. He was selecting from the creative output of different photographers, and different outputs from the same photographer. IMHO, that is evidence of creativity at work, and the "market" [artist] making a section among creative outputs from the photographers.

Photography like this is all about timing, which includes timing the photo to capture the elements of the facial expression, the pose, the lighting, etc. Deciding *when* to shoot is the sine quo non of creativity in this type of image.

As for the painters that copy photographs, yes they are violating the photographer's copyrights. I've seen a specific case on point, but it escapes me now. Painters that use multiple photographs, and create a new image, new pose, new lighting, etc., and create a new image, are not copying.

Before changing careers, I shot news and sports for many publications, including for SI, back in the 80's and 90's
2.12.2009 8:46am
Ben P:

This is clearly a derivative work. There is no exception for a derivative work, but the second artist has the copyright in the new elements added. But he violates the copyright of the original artist unless he can show a fair use defense, assuming the original work is protected.


Is it?

I'm reasonably sure you couldn't gain a copyright to all images of Obama's face, and neither could you gain a copyright over all images of Obama's face with a particular expression or in a particular angle. There's some discussion of this point in detail on Professor Picker's blog, which is linked to above. Basically if two people managed to take nearly exactly the same picture but half a second apart from one another, the person who took the first picture couldn't exclude the second from using his.

If you eliminate the expression and the angle of Obama's face what's left to copy? Nearly every other detail that's similar is largely wiped out by the color change.
2.12.2009 10:41am
Warhol fan:
Just curious - did AP, or any photographers, or Campbell's Soup, ever sue Andy Warhol? Didn't he pretty much start with well-know photos of Marilyn Monroe, Jackie Kennedy, etc. (maybe even AP ones?) and then add the color by silkscreening and whatever?
2.12.2009 11:32am
Seamus (mail):
I think you mean Hedley. Hedley Lamarr.

What the hell are you worried about? This is 1874. You'll be able to sue *her*.
2.12.2009 12:25pm
Hannibal Lector:
The photographer worked to snap dozens, if not hundreds, of shots of Obama, always using his artistic sensibility to seek the exact stance, lighting, facial expression, etc., etc., that would telegraph a certain perception to his audience. This is what photographers do. It is how they make their living. And by using without permission this image that the photographer worked so hard to obtain, Fairey has stolen the man's livelihood.

Anyone comparing these pictures can clearly see that Fairey incorporated the photographed image of Obama directly into his poster and then daubed or sprayed some paint onto the image in a way that exactly matched the light and color patterns of the original. It's as original as a child coloring inside the lines of a crayon coloring book.

It's also worth noting that Fairey has consistently evinced a sublime indifference to the rights of others and to the law throughout his entire career as an "artist". The world would be a better place if this socipathic hack had never existed.
2.12.2009 12:29pm
Malvolio:
It's not really that original, anyway. Pretty much anyone with a bit of graphics and design experience can make identical images with stock Photoshop filters
You're kidding, right? Anyone with a camera could have taken the original photo (or this one or this one), whoever happened to be standing there at that moment, pointing his camera in the right direction. Indeed, I could easily write a best-selling novel just by simply striking the keys on this keyboard in the correct order.

The fact that most people don't, that most people aren't prize-winning photographers, graphic artists, and novelists, suggests there is a modicum of creativity even when using machines to create art.
2.12.2009 1:12pm
billb:
Thanks, David. I wouldn't have bet at more than more than even odds that there was case law going to a fair use and not using any of the factors. Bill Patry used to link to so many cases that required the infringer to meet all 4 factors listed in the statute that I'd given up on anyone actually reading it.

...a few minutes pass...

Though, now that I've read the case, I do remember it. To quote the operative part (and, of course, it would be Posner):


The important point is simply that, as the Supreme Court made clear not only in Campbell but also in Sony Corp. v. Universal City Studios, supra, 464 U.S. at 448-49 n. 31, the four factors are a checklist of things to be considered rather than a formula for decision; and likewise the list of statutory purposes. See also Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., supra, 150 F.3d at 141; Ringgold v. Black Entertainment Televison, Inc., 126 F.3d 70, 78 and n. 9 (2d Cir. 1997). Because the factors and purposes are not exhaustive, Ty can get nowhere in defending the judgment by arguing that some or even all of them lean against the defense of fair use. The question is whether it would be unreasonable to conclude, with reference to one or more of the enjoined publications, such as the Beanie Babies Collector's Guide, that the use of the photos is a fair use because it is the only way to prepare a collectors' guide.
2.12.2009 5:38pm
Not_so_fast:
People are forgetting a distinction between trademark, copyright, and patent.

If you independently create something without influence of the original, even if it is nearly a duplicate of the original, there is not likely infringement.

With patent and trademark, the opposite is true.

This is why programmers can use "clean" techniques to duplicate functionality of proprietary copyrighted software, and even if the resulting code was identical, it is not a copyright infringement.

What this artist did is called posterization. If you take the original image, and reduce the number of colors, and make some other adjustments in photoshop, you can easily reproduce an image very similar to the artist's.
2.13.2009 8:40am
MLS:
Re Fair Use analysis under 107, it seems pretty clear to me that the term "shall" embraces and requires, at a minimum, consideration of each of the four deliniated factors.
2.13.2009 12:13pm
billb:
MLS: That just means that they must be considered, but it doesn't make them together or any one of them dispositive. They're too vague for that.
2.13.2009 12:18pm
MLS:
Billb:

We agree. My comment was merely to reiterate the fact that a transformative use alone is not dispositive. All factors are to be considered and taken into account in formulating a decision.
2.13.2009 7:40pm
Chris Newman (mail):
Readers of this thread might be interested to know that Colbert is all over this issue.
2.14.2009 4:07pm
trad and anon (mail):
1. It's not an infringement of their copyright in the photo. Fairey admits that he copied from the photograph in making his image - but copying does not necessarily imply copyright infringement. You're allowed to copy things from others, if the things that you copy are not protected by copyright. Garcia's photograph is, certainly, a work protected by copyright — but only its "original" elements are protected. The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo — the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting - those are the things he changed. What he took was Obama's face, and the tilt of his head — not infringment, to my eyes.
I'll grant you the background, but he definitely took the lighting—just look at the images more closely.
2.14.2009 9:29pm
markm (mail):
Fairey took the lighting, too; the angle of lighting is the same. The only changes to Obama's image I see are "posterization" and other color adjustments; with adding the caption, that would take me 10 minutes in Photoshop, and I'm only an occasional user and no artist. He did paint over the background with something that may resemble a blurry flag, but isn't presented at the same angle as the flag in the original. Fairey's artistic talent and work shows up mainly in picking the right image to start with. Not to denigrate that - as a totally nonartistic person who sometimes has to create artwork for technical manuals, I'm very aware of how much the artist's eye matters.

But, the question is whether elements that were not controlled or selected by the photographer are copyrightable. If Obama had been in Garcia's studio, with Garcia controlling the lighting and asking Obama to tilt his head, the poster would be an obvious infringement. But as I understand it, this was a news photo, the only thing under Garcia's control was when he clicked the shutter, and anyone else standing near Garcia could have taken the same picture. Does that make the head tilt and lighting non-copyrightable? If so, there's very little covered by copyight in any news photography.
2.15.2009 9:17am

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