It is often said that imitation is the greatest form of flattery, but in the world of copyright, flattery is a much more controversial act.
If you are not already familiar with the Shepard Fairey v. The Associated Press controversy, hop over to this site and take a look at the two pictures. The original photo of Obama was taken by Mannie Garcia and is owned by the Associated Press (AP). The other photo is the Obama Hope poster created by Shepard Fairey. If you noticed the similarity, so had Garcia and AP, who called Fairey on his copyright infringement. While Fairey admits that he had used Garcia’s photo without his permission as the basis for his now famous Obama Hope, he claims that he had taken the basic idea of the photo and artistically transformed it into a different form of expression to be used for the Presidential campaign. As a result, Fairey claims it should fall under the fair use framework outlined in the US Federal Copyright Law.
Under section 107 of the Copyright Law, there are four factors to be considered when determining whether a reproduction is fair use: (1) the purpose and character of the use (i.e. commercial v. non-profit/educational); (2) the nature of the copyrighted work (i.e. how transformative or how much creative contribution); (3) the amount and substantiality of the portion used in relation to the copyrighted work on a whole (how much was taken, how important); and (4) the effect upon the potential market for, or value of, the copyrighted work.
In a series of interviews hosted by UCLA Professor, Doug Lichtman, both perspectives of the perpetually controversial fair use analysis are presented from the representatives of Fairey (Mark Lemley) and the Associated Press (Dale Cendali)
One of the main assertions that Fairey makes is that his artwork was transformative. Lemley supports his argument by stating that Fairey had taken a rather generic photo of Obama and transformed it into a socially iconic work of art. It was also transformative in the sense that the purpose for the piece was non-commercial and was intended to benefit the public interest (campaigning for Obama). Where Fairey had contributed substantial artistic creativity through the colours, shape, and expression of the poster, Garcia’s actual contribution of creativity in taking the photograph was quite minimal.
In contrast, Cendali argues that Fairey had deliberately picked the particular photo because Garcia had skilfully captured the specific hopeful expression that Fairey was looking for. Cendali described Fairey’s downplay of Garcia’s contribution to his work as quite unfair and questions why “graffiti” artists such as Fairey deserve a first-rate artist recognition and photographers like Garcia get second-rate copyright protection for their work.
Another argument in the Fairey camp is the fact that his work was intended to be non-commercial in nature. Any profits Fairey initially made from his work were spent on reprinting posters to be distributed for free during Obama’s campaign. Lemley argues that during the time that Fairey chose to do the work, it was impossible for him to know of the future success of Obama Hope. His commercial success now has nothing to do with the non-commercial intentions he originally had. If anything, Fairey’s success has given AP increased licensing profits through demand for the original Obama photo.
Cendali counters by stating that Fairey has of September 2008 made over $400,000 in profit from selling Obama Hope merchandise. Despite the basis on non-commercial intentions, Fairey’s actions have tremendous damaging effects to AP’s potential market opportunities and profits on a broader scale. By encouraging other artists to ignore the copyright requirements to obtain licensing for photos, AP loses a substantial portion of revenue, which for a non-profit entity is what helps keep them afloat in the industry. Furthermore, such ignorance of copyright protection destroys the incentive system for photographers and other such artists, leaving broad social policy concerns for Cendali.
On the opposite end of the spectrum, Lemley fears the social policy concerns of an over-aggressive enforcement of the licensing market. With a licensing market that trumps all other factors of fair use, Lemley argues that we would fall into a culture of permission. A permission culture is corrosive to art and creativity – not only is there a problem of timing (it may take weeks or months to get permission), for many artists there may be great difficulty in attaining permission or finding the right people to attain permission, especially for beginning or lesser known artists.
Although Lemley and Cendali may differ on their views of the details of the Fairey case, there is no doubt that they both agree that on the broader scale, striking the right balance between protection and freedom is essential. What the right balance would be, is of course, the controversial bit. However, as far as the Fairey case goes, I would tend to agree with Lichtman’s conclusion that the fair use path that Fairey chose was not necessary. As Cendali pointed out, it would have been in good faith for Fairey, in his professional endeavour to create meaningful art, to have at least attempted to attain permission from Garcia or AP.
However, I disagree with both Lichtman and Cendali’s downplay of Fairey’s transformative efforts. While Fairley clearly got his inspiration from Garcia’s photo, he was able to take a subtle expression and create so much more. The extreme popularity of Obama Hope – and in contrast the most likely forgotten status of Garcia’s original, had it not been for Fairey’s work- is evidence of Fairey’s success in transforming the original into a substantially different and recognized work. As such, I believe Fairey’s approach and the influence that his work has attained in society would have satisfied the first three fair use factors. The immediate effects of his work on the market system (factor four) for AP and the industry would not on its own be enough to trump the first three factors. I fear that should even Fairey’s use be shot down as copyright infringement, our culture of social commentary, remixing, and our ability to get inspired from others will be severely limited. While keeping in mind Cendali’s fear of a broad disregard for licensing, I do not believe Fairey’s use was an intensive enough of a blow to the industry at large.