The Obama Poster Copyright Mess

One of the more interesting things going on in “popular IP” right now is the Shepard Fairey copyright dispute.  This has been blogged about and written about extensively elsewhere, but to sum up where it’s at right now:

  1. Mannie Garcia took a photograph of Obama.
  2. The AP (maybe) acquired the rights to the photograph from Mannie Garcia.
  3. Shepard Fairey copied the photograph and altered it to create the ubiquitous red and blue Obama “Hope” poster.
  4. The AP threatened to sue Fairey for copyright infringement, but during settlement negotiations, Fairey filed for a declaratory judgment.

This is another one of those “popular IP” issues where most people read the story and think, “Oh, I heard about this thing called ‘fair use’ one time.  I love that Hope poster!  Therefore, it’s obviously fair use!” 

No.  Well, it’s not obviously fair use, at any rate. 

One of our colleages described a meeting of copyright attorneys she attended last week.  They had an hour-long discussion about whether this is fair use, and even they couldn’t come to a consensus.

The voices claiming that this is fair use are numerous.  One voice arguing that this might not be fair use is Gene Quinn of IP Watchdog:

Falzone will attempt to make the argument that Mr. Fairey’s work is transformative because under the fair use statute the more transformative the work the more likely the work is a fair use.  Court have routinely held that merely copying a work into a different medium does not make the work transformative though, which does not bode well for Mr. Fairey.  Yes, he did add to the work, but it is important to note that all of the aspects of the photograph that copyright law recognizes as most protectable have been taken by Mr. Fairey’s work.  Specifically, everyone who would look at the Obama photograph and then looks at Mr. Fairey’s work will be struck by the fact that Mr. Fairey copied the exact pose, same tilt of the head, same gaze and the same expression on President Obama’s face. 

Quinn goes on to argue that the fact that Fairey has made a considerable amount of money from sales of the poster, and the fact that allowing artists to copy photographs like this will greatly harm photographers, both make it even more unlikely that this would be found to be fair use.

Unsurprisingly, I tend to agree with this.  I may look at the legal details of this in a later post, but in my gut, I feel that Fairey is going to lose this one.  I like the Obama poster, too, but Fairey just doesn’t make a very sympathetic party. 

First, Fairey has had other troubles with the law: he was recently arrested for vandalism charges related to his earlier “Andre the Giant” sticker campaign.  While tagging may give him “street cred,” I wouldn’t think that a track record of showing disrespect for other peoples’ physical property will help him in this intellectual property dispute.

Second, Fairey has admitted that he copied the photograph, and has a track record of using questionably sourced images.  According to Quinn’s post quoted above, the Obama campaign even asked him to an image that they had the rights to, instead of this image. 

I know that it’s not technically part of the law of copyright, but in my gut, this just screams “culpability.”  He intended to appropriate the photograph without compensating (or even contacting) the photographer, and he ended up making a crapload of money off of it.  I just don’t see a court finding in his favor.


3 Responses

  1. So, in today’s legal climate, Campbell’s would have been able to successfully sue Andy Warhol and whoever makes the prints of his work?

  2. There’s a couple of issues in that statement. First, Warhol wasn’t really able to do his work in his *own* time without being subject to lawsuits. In fact, he was sued in a situation similar to this, and he settled:

    Second, if Campbell’s has a registration on the trade dress comprising its soup cans, they would probably have a trademark infringement claim to make, along with any copyright claims (although success on the trade dress / trademark claim might be doubtful).

    Third, I don’t see why Campbell’s would ever *want* to sue over Warhol’s soup pictures, as they were basically free publicity for their soup.

  3. Man, that sucks.

    Re: Juries deciding what’s transformative: All of Warhol’s work that I’ve seen is clearly transformative, and that Fairey poster most definitely is. It could have worked using any number of base photos, and that photo by itself on posters would not have worked.

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