Opening Statements

Hope for Copyright

Posted May 1, 2009 10:50 PM CDT
By Hope Viner Samborn

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The now ubiquitous Barack Obama Hope poster may have inspired millions in last fall’s presidential election, but it also has inspired a fierce debate among lawyers about the limits of copyright protection.

Last year artist Shepard Fairey created the Hope poster by using a portion of an Associated Press photo taken of Obama with actor George Clooney in 2006. After the AP informally accused Fairey of copyright infringement, Fairey fired a pre-emptive strike, asking a federal court in Manhattan to declare that his use of the photo had a “transformative” purpose and was protected under copyright law’s fair-use doctrine.

In mid-March the AP fired back, disputing Fairey’s fair-use assertion and countersuing for copyright infringement. AP’s counterclaim alleges that the poster does not “alter any of the distinctive characteristics that make the Obama photo so striking.” The counterclaim further asserts that “Fairey has done noth­ing that would excuse his blatant copying of, and creation of derivative works based on,” the AP photo.

But what seems to be a fairly simple question about copyright protection is actually a lot more complicated, says American University law professor Peter Jaszi. He and other experts agree that Obama’s face alone as an element in the AP image is not copyright protected. To be protected the photographer needs to add significant value to an image through, for example, the pose or the lighting.

In the case of the Hope poster, the question is whether other elements of the image—the angle of his famous face, the lighting and the shading—give this unstaged photo protection. “If photographers go out and simply photograph the Washington Monument over and over again ... it is not clear that the second or 10th time that it is protected,” he explains.

After reviewing the Fairey and AP images, it gets to be harder and harder to see what that photographer’s value added is, Jaszi says, noting that copyright “protection for candid, unposed shots of news events is thin.” He also says that “this case pushes us to how far and how low to set copyright protection.”

But Melbourne, Fla., copyright lawyer Eugene R. Quinn Jr. disagrees. In his IPWatchdog blog, Quinn says that Fairey used aspects of the AP photograph that “copyright law recognizes as most protectable ... the exact pose, same tilt of the head, same gaze and the same expression on President Obama’s face.”

MANY FACTORS AT ISSUE

Fair use may allow an artist to use a portion of a copyrighted work if the purpose differs from the orig­inal or, in other words, becomes trans­formative. Courts also consider other factors like the nature of the work, the portion of the original work used and the impact on the original work’s value.

Fairey’s attorney, Anthony Falzone of the Stanford Center for Internet and Society’s Fair Use Project, says photographer Mannie Garcia took the AP photograph to document a news event. In contrast, Fairey’s transformative purpose was to “inspire, compel or convince” others to see Obama’s leadership.

“It is a clear case of repurposing and adding value,” Jaszi says.

The “great weight” of court authority is against Fairey’s claim, and courts will be reluctant to favor Fairey’s use because it “would kill the [photography] industry,” Quinn wrote on his blog.

Fairey also was strategic in his legal action. The federal court handling Fairey’s case previously sided with an artist, Jeff Koons, who used part of a professional photographer’s photograph in a collage.

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