What's 'Fair Use'? Shepard Fairey Case

[gr82bart]

Anyone following this case must have heard by now, he lied about which original image he used. Anyway, is what he did still fair use?



NEW YORK (AP) — Shepard Fairey's claim that he had the right to use a news photo to create his famous Barack Obama "HOPE" poster became a widely watched court case about fair use that now appears to have nearly collapsed.


By Friday night, his attorneys — led by Anthony Falzone, executive director of the Fair Use Project at Stanford University — said they intend to withdraw from the case and said the artist had misled them by fabricating information and destroying other material.


Fairey himself admitted that he didn't use The Associated Press photo of Obama seated next to actor George Clooney he originally said his work was based on — which he claimed would have been covered under "fair use," the legal claim that copyrighted work can be used without having to pay for it.


Instead he used a picture the news organization has claimed was his source — a solo picture of the future president seemingly closer to the iconic red, white and blue image of Obama, underlined with the caption "HOPE." Fairey said that he tried to cover up his error by submitting false images and deleting others.


The distinction is critical because fair use can sometimes be determined by how much of an original image or work was altered in the creation of a new work. If Fairey didn't need to significantly alter the image he used — in this case the solo shot of Obama — then his claim could have been undermined. Fair use cases also may consider the market value of the copyrighted material and the intended use of the newly created work.

http://gawker.com/5384096/obama-hope-poster-artist-shepard-fairey-lied-in-court-lied-to-bloggers-covered-up-evidence

http://www.pdnonline.com/pdn/content_display/photo-news/legal-news/e3iea9ebb170ad87d30077561804b70c4a5

Related case:

http://www.techdirt.com/articles/20091014/0309256527.shtml

http://www.wired.com/threatlevel/2009/10/novak/

Regards, Art.

[MkII]

I don't think he was using the original image for a legitimate fair use purpose. If he made money from it then his use is even more questionable.

[Moopheus]

This does not look to me like fair use. It looks to me like what copyright law refers to as "derivative work"--work directly derived from the original, and which the original copyright holder would control.

[Jim Chinn]

It seems to me that the fact he lied about the original source image means he knew he would be outside the bounds of fair use.

[Lukas Werth]

I must confess my ignorance. I neither knew about this case before, nor the artist, nor have I hitherto paid consciously attention to the legal phrase "fair use".
The message in this poster appears intolerably crude to me, the use of the colors obtrusive.
However, if the original photograph was lifted out of some publication, its use by the artist appears to have quite changed it into something else - never mind his lying or what not. He not only crucially altered the image, but also moved it into another context, gave it a new meaning (even though the US flag is visible in the background of the original photograph). This looks like a quotation to me. Did Warhol have to pay royalties for his Brillo boxes?

[Greg Davis]

Warhol would have had to pay if Brillo or Campbells pursued him in court, but they chose not to. Appropriation in art is a tough call, and one that often goes before a judge. If the judge determines the new work is too similar to the original and may compete in the marketplace with the original, then it is infringement. In this particular case, the artist lied about which image he used as a source, which in the eyes of his lawyers, may have damaged his case too much to risk continuing in court, even if a sympathetic judge may let it pass. Arguing "fair use" of another image is extremely hard to win if you try to make money with it.

[erikg]

Lukas, this was the iconic poster of the 2008 campaign season, it was tough to get away from here in the US, but I'm not sure how much money Fairey made on it, a lot were bootlegs, so to speak. It sure doesn't look like Fairey believed it was really fair use, so it looks like it's settlement time. It won't hurt his reputation any.

[Moopheus]

However, if the original photograph was lifted out of some publication, its use by the artist appears to have quite changed it into something else - never mind his lying or what not. He not only crucially altered the image, but also moved it into another context, gave it a new meaning

Under US copyright law, that doesn't necessarily constitute fair use. What law says is this:

"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. "

I would expect that promoting a political candidate is not likely to be considered by the court as "comment" or "scholarship" or "educational." The fact that it's changed and has new meaning doesn't make it less of a derivative work, it's still based on the other photo. Fairey's position is weak, and if I were the photographer, I'd sue him, too.

[photomem]

Funny thing happened in school the other day. My prof said that Fairey was ok because he had changed the form of the art. Of course, in this case it was from a photo to a silkscreen. He himself is a silkscreen artist. He changed his mind when I asked him if I could take photos of his silkscreens and sell poster prints.

[JBrunner]

Warhol would have had to pay if Brillo or Campbells pursued him in court, but they chose not to. Appropriation in art is a tough call, and one that often goes before a judge. If the judge determines the new work is too similar to the original and may compete in the marketplace with the original, then it is infringement. In this particular case, the artist lied about which image he used as a source, which in the eyes of his lawyers, may have damaged his case too much to risk continuing in court, even if a sympathetic judge may let it pass. Arguing "fair use" of another image is extremely hard to win if you try to make money with it.

Actually it is very doubtful that Brillo or Campells could have prevailed. Warhol's work was original, not derivative, and was marketed as art. Even though a work of art may be offered for sale, that does not not in general mean that the work is commercialized in nature, and extends even to the likeness of people. See here:http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

[Greg Davis]

Unfortunately, we will never know if Warhol would have been successfully sued over his images now. It was a different time and different mindset when he made them. For all we know, both companies may have been flattered rather than upset. They could have taken him to court, and I believe with cunning enough lawyers may have won, but it was never pursued and it is all speculation.

[Q.G.]

The likelihood of people even considering sueing is inversely proportional to the ('artistic') quality of the abuse of an original work.

As is the likelihood that the lawsuit is succesfull.

In this case, the artistic merrit of the abuse of an original work is close to nil.
The only value it has is it's commercial value (which, of course, is also not great.)

[jnanian]

Lukas, this was the iconic poster of the 2008 campaign season, it was tough to get away from here in the US, but I'm not sure how much money Fairey made on it, a lot were bootlegs, so to speak. It sure doesn't look like Fairey believed it was really fair use, so it looks like it's settlement time. It won't hurt his reputation any.

exactly erik

any publicity is good publicity ...

just ask the balloon guy. he'll soon have his own reality show ...
as long as the lizard people don't get him ( and it's before 2012! )

[Lukas Werth]

Thank you all for the clarifications. It appears obvious that under current US law almost anybody can be sued for anything. An interesting question for me is to which extent rights of the own art are principally or ethically justified, quite apart from current law. Is this a matter of commercial use or of the quality of the quoting artwork? I think I stated already my opinion about he work in question, but I do think it makes its own statement not visible in the original photograph, and uses its own aesthetics. To be honest, I am currently undecided in my opinion of whether the original photographer should be entitled to royalties or not. One reason is that I like to make phtographic images of contemporary urban infrastructure, including railway stations and the like, and I sometimes sell these pictures. I would be loth to pay any royalties to, say, an architect of such a building, even if a picture would become, through some sort of miracle, a real economic success. There are certainly differences between the cases, but too broad an interpretation of owner's rights would in my opinion seriously restrict the creation of art - maybe it does already. Is it not a sad thought that Warhol might be sued today, or only escaped a lawsuit by the mercy of the companies in question?

[Dave Pritchard]

I think Jay Brunner is right. Warhol would have prevailed. Copyright of a product package would extend to the product realm. I also don't remember if the Brillo package contained a copyright notice, or if they had ever defended it. Brillo would have good grounds to sue a competitor which copied their package.

Warhol was not selling scouring pads or soup.

[Jim Chinn]

Here is an interesting article and take on Shepard Fairey and issues of plagiarism surrounding his "art".


http://www.art-for-a-change.com/Obey/index.htm

[Moopheus]

Thank you all for the clarifications. It appears obvious that under current US law almost anybody can be sued for anything. ...One reason is that I like to make phtographic images of contemporary urban infrastructure, including railway stations and the like, and I sometimes sell these pictures. I would be loth to pay any royalties to, say, an architect of such a building, even if a picture would become, through some sort of miracle, a real economic success.

Yes--the limits of fair use are vague and not strictly defined in the law--it usually has to be argued in court, so the precedents depend somewhat on someone deciding it's worth pressing the case.

As to the photographing of buildings and the like, while copyright law grants architects the right of copyright to their work, US law explicitly allows photographing (and painting, drawing, etc.) of buildings "normally in public view." Actually, as I understand it, Germany actually has more restrictive laws about photographing private property.

With commercial products like soup cans and soap boxes, it may be more of an issue with trademark and "trade dress," which is a separate area of law. Then it really does come down to commercial, competitive use, or "dilution" (making the trademark seem generic).

[erikg]

yes, pretty much anyone can be sued by anyone here. In this case it's Shepard Fairey vs. the AP, not an individual photographer, who I understand has said he doesn't have a problem with this use. Case law keeps shifting, but the trend has been towards the artist behind the second work, and then there is the question of damages. Tough to prove when you are talking about an artist showing a work in a gallery like Warhol or a guy who puts stickers all over the place like Fairey. But with good lawyers and the right judge anything can happen. I'm surprised that Fairey didn't go after the t-shirt bootleggers. not really.

[David A. Goldfarb]

Fairey has often encouraged the copying of his work. He sometimes makes gallery editions of posters and graffiti editions that he's distributed for individuals to copy at will.

[Q.G.]

Fairey (obviously copying other people's work, changing it slightly to fit his puproses) also has taken offence to people copying other people's work, changing it slightly to fit their purposes.

Anyway, i don't know how anyone can even think of using the word "art" when considering these thingies.