Fairey, Obama, and Fair Use

Now that the source material for the iconic Barack Obama campaign image, produced by Shepard Fairey, has been identified, the fair use fun can begin. The photographer says that he doesn’t want to make trouble. But some in the art world have been gunning for Fairey, arguing that he’s not just a bad artist, but not an artist at all.  The claim is that he appropriates historical images, often images with salient and significant political force, strips them of context and original meaning, and re-purposes them solely for the almighty dollar. To extend that argument (made pre-campaign) to the Obama image, it might be said by the critics that Fairey’s artistry, such as it is, represents the antithesis of the progressive politics that now-President Obama epitomizes.  I don’t know that the critics do say that, but it’s easy to see where the argument takes you, and them. 

In the copyright world, does any of that matter?  Should it?  Probably not, on both counts.  That doesn’t necessarily let Fairey off the hook if the owner of the copyright to the Obama photo wants to make a fuss.  Sure, the photo is “transformed” to a sizable extent, which pushes the fair use needle to Fairey’s side.  But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo.  Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money.  Push that needle back a ways.

17 thoughts on “Fairey, Obama, and Fair Use

  1. Could have charged if the original photo is copyrightable. Sadly, under the prevailing view of the originality standard, the underlying photo is sufficiently creative to be “original” …

  2. The argument that there is no improper appropriation (or “substantial similarity”), based on the lack of originality in what was appropriated, makes the condemnation of Fairey’s artistic practice all the more striking. I’m reasonably confident that the artistic critics who accuse Fairley of plagiarism wouldn’t hesitate to recognize the artistic discipline that inheres in the original photograph. The photographer is a creator or author, in other words, if only in what copyright law (if not fellow photographers) would regard as a minimalist sense. Fairley, the argument would continue, is not.

    As a practical matter, and partly because I think that the artistic criticism reads on copyright arguments in the real world reasonably well, I’m skeptical that Fairley could get out of the case, if there were one, on summary judgment.

  3. It seems a shame to think that the original photograph is copyrightable. In the Wilde case, the Court found the photograph to be an original work of art because the photographer had “his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.” Mannie Garcia did none of these things. He didn’t pose Obama, select a costume, arrange the visual accessories, etc. If anything, Obama himself contributed the elements that the court identified, and so at the very least this should be a joint work of copyright (if there is any copyright at all).

    There is skill in knowing how to focus the camera, which lens to use, etc., etc. But it doesn’t seem to me that this skill should warrant copyright protection.

  4. On the artistic point: I wish we could have some commentary from the photographers themselves. I am familiar of course with the mischief that “originality” causes in copyright law, but I’ll resist the idea that the relevant photograph of Barack Obama, or news photographs in general, are little more than amateur snapshots. I’m not a credible witness on that score, unfortunately, except that I count photojournalists among my friends.

    Whether it’s art, however, is only part of the question. The other part of the question is whether the activity at issue is the sort of thing that benefits from the economic incentives that copyright provides. “Benefits” is a loaded term; the real question is benefits “how.” Again I’d prefer to hear from photographers, but in general I’m skeptical that the law should be dismissive of their work.

  5. As an attorney who works for photographers and a semi-pro photographer, I find these discussions fascinating. Almost as many people think that they are photographers think that they are lawyers.

    Certainly, with the advancement of digital cameras, there has been a decline in the respect for photographers’ work. But just as most any minimal writings (such as blogs) or paintings (with a small dot in the corner of the canvas) are entitled to copyright protection, so should photographs. The creative elements to a photograph include the angle, the lighting, the selection of depth of field, the exposure, the color balance, the crop, etc.

    Can you imagine how boring the Obama photo would have been if the camera had been tilted so that Obama’s head was not? the And if Mannie Garcia’s photograph wasn’t an inspiring, creative work, then Fairey wouldn’t have used it.

    It’s a common excuse for copyright infringement – the photo wasn’t anything special and anyone could have shot it. That begs the question – then why didn’t they?

  6. Any question that the work is not copyrightable is ridiculous. It has clearly been established that photographs are copyrightable. Anyone who argues otherwise is either being disingenuous, or not paying attention.

    If you want to steal someone’s work, then go ahead and hope they don’t sue. But to use straw men (fair use, I changed it, photographers are not real artists) makes me want to ask, with all these straw men, aren’t you afraid they might gang up on you? Fairey might come to know the answer to that. It can’t happen too soon.

    As a photographer, freeloaders have no right to my work without compensation. I might even give it away for free if I like the use. But you must ask me! It’s my choice, not yours.

  7. Photographs may be copyrightable, but they aren’t copyrightable if they are not, in the language of copyright law, “original.” The same proposition applies to books, and films, and paintings, and computer software. Anyone is entitled to copy anything “creative” that is not “original,” no matter who produced it.

    So, the proposition that photographers can support (or not) is why and how photographs might be original. (The originality in Garcia’s work is not evident to some people, even to many people.) Ranting about “theft” and “stealing” doesn’t advance that ball. Lawyers and scholars are pretty much immune to the rhetoric.

  8. So Carolyn Wright writes “if Mannie Garcia’s photograph wasn’t an inspiring, creative work, then Fairey wouldn’t have used it.” Using that logic, everything that anyone wants to use must by definition be copyrighted. If you want to use it, there must be something creative and original in it.

    What struck me is that the Wilde decision located photographic creativity in a whole series of decisions, none of which Garcia made. He didn’t pose Obama; he didn’t selecting and arranging “the costume, draperies, and other various accessories”; he didn’t set up the lights; and he didn’t suggest or evoke the desired expression, but only captured it.

    I am sure that Garcia was well-compensated by AP for his skill and acumen in capturing the moment, but do we think that he also deserves the enduring protections of copyright (especially since Fairey removed all elements other than Obama’s expression)? What is the nature of the creative component in new photography?

  9. There’s three different issues here. One is whether photographs are copyrightable at all. I think almost everyone would say “yes.” A second question is whether *this* photo (and the other similar ones taken on the same occasion by different photographers) is copyrightable. Again, I believe most everyone aside from a few law professors would say yes. The third and most difficult question is whether the copyrightable elements in the photo have been infringed by the poster.

    To figure out the answer to that, you have to do more than just hold the images side by side. That’s because there’s a lot about the photo that is not the creative work of the photographer and therefore not copyrightable — and copying that stuff is not infringement. E.g., Obama’s face. Drawing Obama’s face does not infringe on this photo.

    Once you’ve figured out the creative bits that the photographer contributed to the photo, the next step is to figure out if *those bits* have been substantially copied by the poster. And I’m having trouble coming up with any that appear in both the photo and the poster, other than the choice to take (and use) that shot (along with dozens of others, I’m sure). I don’t think a single mere selection of that sort (“I choose the ten of hearts”) is enough to be substantially similar.

  10. If copyright law is design to create an incentive for works that we fear will be under produced in the absence of a marketable right — does AP really need a copyright that extends to encompass what Fairey did to the photo? Remember is it AP’s right here, not the photographer. This was a staff photo, one that the photographer did not even recognize in seeing Fairey’s artwork.

    Should AP have a right to demand permission be obtained for this use? If copyright law doesn’t given AP such a robust right, would that be such a bad result (whether through lack of meeting the “substantial similarity” test or fair use)?

    Even without such a robust right I’d bet good money that AP would still hire photographers to take pictures of senators (the photo was from a Senate committee hearing) and those photographs would still get published.

    Copyright is an incentive system — let’s make sure the incentive is needed before we all endure the cost of protection!

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