Thursday, February 5, 2009

Shepard Fairey Obama poster: lots of questions, few easy answers

I have avoided blogging about the Shepard Fairey poster controversy for several reasons, chief among them that the facts about who owns what copyrights have been so unclear. Well, they're still unclear, but at least now we know what the various parties say about who owns what. Here's a recap of what we know:

A professional photographer named Mannie Garcia shot a photo of candidate Obama. Garcia says he thus owns the copyright in the photo. The AP disagrees; it says:
Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.
If the AP is correct about Garcia's employment status (and I have no idea if it's right or wrong), then AP is indeed the copyright owner, under the work for hire doctrine.

Then, artist Fairey took the Garcia photo and made it into the now famous poster.

One question is whether the photo itself is protected by copyright. I think the answer is clearly "yes"; photographs have copyrightable since President Abraham Lincoln signed a law so providing. See Act of March 3, 1865, 13 Stat. 540; see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Ets-Hokin v. SKYY Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000).

Next, a tougher question: did Fairey copy the protectible elements of the photograph, or merely the unprotectible underlying facts/reality (i.e., the fact that Obama was sitting at a certain place with his head cocked at a certain angle at the moment Garcia pushed the button on his camera)? I think this is a very hard issue, and I'm not prepared to hazard an opinion yet. A follow-on opinion to the Ets-Hokin decision noted above suggests that in such cases, the copyright in the photograph may be "thin," and that anything other than "virtually identical copying" (which is not what Fairey did) is permitted.

Finally, let's assume that Fairey did copy (i.e., make a derivative work of protectable elements). The question will then become whether he has a valid fair use defense. To run through the most relevant factors: I think Fairey's work is transformative, which helps him. But at least in certain respects it's very, very commercial (posters for $45! t-shirts $25! stickers 50 cents! signed prints $500!), to which a court could very well say, "Mr. Fairey, please take out your checkbook." Fairey appears to have used a large portion of the photo, and this appears to be a use that the AP (assuming it is the copyright owner) would normally charge for, and thus the use would deprive the AP of a license fee that it is entitled to -- which undermines a fair use defense. Carolyn Wright's excellent Photo Attorney blog weighs the factors and concludes that Fairey's use was probably not fair. Predictions in this area are tough, but I tend to agree with Wright. How much would I bet on the ultimate outcome? About the price of a Fairey Obama sticker.

Fairey is represented by Anthony Falzone of Stanford's Fair Use Project, who says that he's been in talks with the AP to resolve the matter. Falzone is a passionate fair use advocate and, from what I know, a skilled attorney, but that doesn't necessarily mean he always prevails; he came out the losing side of the Harry Potter Lexicon decision (on the winning side was my former employer).

Who owns the copyright in the photo is crucial here. If it's Garcia, Fairey probably doesn't have much to worry about, as he says he doesn't mind the poster; if it's the AP, litigation may ensue. This is a fascinating case, and I have no confidence at all in predicting how it will come out. I'll be watching.

(Informative interview with Garcia here. And lots of very interesting coverage and commentary from the Boston Globe's Dan Wasserman here and here.)


  1. Ben, a couple of things here. I agree that there's a threshold issue regarding whether or not there's even a prima facie case of infringement. As you say, copyrights on factual material (as unaltered photographs necessarily are) are "thin," meaning that, to infringe, a copy has to be virtually identical with respect to things like composition, vantage point, etc. It's not hard to tell from comparing the two that "virtual identity" is a stretch here. The composition is different, coloring is very different, the shading is different, the size is scaled down, etc. So even in an admitted case of copying, seems that your observation that there may not be actionable infringement here is a good one. That said, there is also a difficult reductio ad absurdum argument here: if someone took the actual photo, cropped it, and colored on top of it, it would be hard to argue that there's no infringement.

    I disagree with your fair use analysis, though, particuarly the assertion that "this is a use that the AP would have charged for." The correct analysis, in my view, is whether the use is substitutive of the use in the photo, not whether the photo generally could have been licensed for use in posters and buttons (which I think is a slightly different question). In my mind, there is no erosion of the legitimate market for the AP photo because I don't believe the photo and the impressionistic, intentionally iconic Fairey image compete in the same market. As we both know, the definition of the "actual or potential market(s)" is always an issue with regard to the 4th fair use factor; it just depends on how far you think the boundaries of the market stretch.

    But your fundamental point remains: where you end up on this one probably depends on where you start out.

  2. Ah yes, the fourth-factor circularity problem: it's only a use "that the AP would have charged for" if the court determines that it's a use that the AP should have the *right* to charge for -- which turns, perhaps, on whether the AP does normally charge for such uses. One's head spins...
    I've always liked the language in the original 9th Cir. Napster opinion, which rejected the fair use defense, relying in part on the District Court's determination that "Napster users get for free something they would ordinarily have to buy."

  3. Well, that's a much narrower construction of the question than the one you pose in the text. That language works in the Napster situation because the claim of fair use there related to the same exact work (albeit in a downloadable format) that was have been available for purchase by the same end-consumer.

    That formulation sidesteps the hard questions here. The fourth factor question can be posed two different ways. Either:

    1) The AP's market for licensing its photos for derivative works (such as the Fairey derivative work) is impaired by this use (this would be the classic circularity problem, since any fair use could conceivably be a licensed use, and so it can't be that this is the right analysis); or

    2) The AP's market for use of its photo in posters, buttons, pamphlets, t-shirts, etc. was directly impaired. This is less circular, I think, and goes back to the value judgment about whether the photo could have been a substitute for the Fairey work. As the brilliant commenter (OK, I) said above, that's a judgment on which reasonable minds can differ. I wouldn't have bought a t-shirt with the AP photo and the word "Hope" on it, though. Wouldn't have looked as cool.

  4. This situation raises the same question as the filmmaker who made her movie *before* getting the rights to the music she needed: why why why? As in, why put yourself in this position as an artist? It's particularly ridiculous here--there was no shortage of Obama photos, so even if Fairey couldn't get the rights to this particular one he could have used another. With access to the campaign, he could have even gotten Obama to pose for a similar shot.


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