Recently Shepard Fairey, the creator of the famous Obama poster, filed a lawsuit in the U.S. against the Associated Press [AP]. Fairey is asking the federal court to declare that his poster did not infringe the copyright of AP’s photograph. AP claimed ownership of the image appearing on the poster. The image closely resembles a photograph taken by a freelance photographer for AP. As a result, AP required compensation for the use of the image. Fairey’s attorney, however, alleged that Fairey’s use was legitimate and thus is protected under the fair use provision.

According to s. 107 of the U.S. Copyright Code, ‘fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright’.  The list of purposes is non-exhaustive and US courts have added other purposes (‘parody’ is one example of added fair use purposes) that are excused under this provision. To determine whether the fair use provision applies, courts have analyzed 4 factors listed in s.107.

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Under this factor courts have looked at whether the use of the copyrighted work is commercial. In Campbell v. Acuff-Rose Music, the Supreme Court of the United States rejected the proposition that commercial use creates a non-rebuttable presumption against fair use. The court adopted a more balanced approach where the commercial use of a work would tend to weigh in favor of the copyright holder but would not be determinative of the issue.

Fairey asserts that he did not use the image for a commercial purpose because he did not gain any direct profits from the distribution of the posters, stickers, and other items sold through his website. According to Fairey, all of the profits were used to create more Obama articles that were distributed during the presidential campaign.

However, Fairey’s argument is not very convincing. Most newly established enterprises start with small-scale production of items. At first, this production generates just enough revenues to allow the owner to expand his or her business rather than cash in any direct profits. However, with time such businesses start to generate sufficient revenues that not only offset the operational expenses associated with daily production and market expansion but also allow the owner to gain direct profits. Thus whether Fairey had gained any direct profits in the past should not be the only consideration as to whether the use was of a commercial nature. Consideration should also be given to Fairey’s future activities with the poster image and the likelihood that some direct profits would flow from such activities. Future profits might be substantial given the fact that the Obama presidency is a turning point in history and demand for Obama-related items might continue to rise.

Under this first factor, courts have also considered whether the use of the material is ‘transformative’. The more transformative a work is, the more likely it is for the work to be ‘fair use’. In Campbell v Acuff Rose Music the court held that a ‘parody’ of the rock ballad “Oh, Pretty Woman” could be a transformative work if it altered the original by adding a new expression, meaning, or message.

In my opinion, the poster is transformative. I agree with Fairey’s attorney who argues that the message or purpose of AP's photograph is to "document the events" while the purpose of the artist's posters is to "inspire, convince, and convey the power of Obama's ideals.” Such ideals are ably summarized by the words ‘Hope’, ‘Change’, and ‘Progress’ that appear at the bottom of the poster.

 (2) The nature of the copyrighted work

Here the court looks at whether the work was published or unpublished and whether it was fictional or factual. U.S. courts tend to favor the owner when the work is unpublished and when it involves a considerable degree of creativity.

The AP’s photograph was previously published, which points in favour of fair use. However, the photo involves some creative elements, which points away from ‘fair use’. Although AP’s photograph seems to be a simple reflection of President Obama with the U.S. flag in the background, the photo is quite creative. The photographer had captured the president in a rather unusual posture, from an unusual angle. The photo represents a pensive Obama looking upward towards the future.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This factor looks at the quantity and quality taken from the original work. Courts have focused more on the quality taken rather than the quantity. Thus even if a substantial amount from the original work is taken, the use could be fair as long as the ‘heart’ or ‘essence’ of the work is not copied. For example, in  Sony Corp. of America v. Universal City Studios, the Supreme Court of the United States held that individual copies of complete television shows for purposes of time-shifting is fair use. However, in Harper & Row v. Nation Enterprises, the court held that the use of 400 words from the 500-page book of the memoirs of a former president was not protected by ‘fair use’ because the taking constituted ‘the heart of the book’.

In Fairey’s case, it is hard to determine what the heart or the essence of the AP's photograph is. If the court determines that the ‘heart’ of the photo is Obama’s pensive look and his particular body posture then Fairey’s most likely took the heart of the photo. This is because Fairey could have used many different poses of Obama to convey his message. Yet he chose the one that AP’s photo captured.

(4) The effect of the use upon the potential market for or value of the copyrighted work

When analyzing this factor, courts have looked as to how the current and future market of the copyrighted work or its derivatives would be affected. In  Campbell v Acuff Rose Music the court pointed out that this is a factual determination largely based on the evidence for market substitution. In Harper & Row v. Nation Enterprises this market substitution was seen as the most important factor in the analysis of fair use.

It seems that AP had largely used the photograph for news reporting, not for creating Obama campaign materials. However, that does not mean that AP could not have licensed the photo to others that might have been interested in using it for a different purpose. Thus the question really comes down to whether AP can show clear and unambiguous evidence that Fairey’s taking undermines the current or future market of the photo or any derivative works.

In conclusion, whether or not Fairey’s use of AP’s photo is ‘fair use’ will turn on the evidence. The court has to determine whether the photo was used for commercial purposes, whether the Obama poster is sufficiently transformative, whether Fairey has taken the substance of the photo and to what extent the poster is a market substitute for the photo and its derivative work.