The famous Barack Obama “HOPE” poster that became a national symbol during the Obama election campaign has led to copyright infringement claims and “fair use” cries from the poster’s creator. Now the US courts will decide. Elena Baranova tells us more.
Topic: Intellectual property
Who: Shepard Fairey v the Associated Press
When: 24 March 2009
Where: United States
Law stated as at: 31 March 2009
The Associated Press (AP) and Shepard Fairey are locked in a dispute over the graphic artist’s famous Barack Obama poster.
The poster features an illustration based on a 2006 AP photo taken at the National Press Club by an AP freelance photographer Mannie Garcia. It shows the then Senator Obama sitting next to actor George Clooney.
The dispute goes to the heart of the ongoing debate over what is “fair use” of images available on the Internet. The dispute is specifically about copyright law, but also concerns the nature of news gathering bureaus, political speech, commercialism and art.
The image's fame
The image, designed by Shepard Fairey, a Los-Angeles based street artist, was everywhere during last year’s presidential campaign: a pensive Barack Obama looking upward, as if to the future, splashed in red, white and blue and underlined with the caption HOPE.
The image’s fame did not end with the election: the image has led to sales of hundreds of thousands of posters and stickers, and has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay. Fairey's poster of Barack Obama is now one of the most celebrated works of campaign art in American history, and was recently added to the permanent collection of the National Portrait Gallery in Washington.
The AP approached Fairey in January 2009, after the AP had identified the source image for Fairey’s poster as the photo by Garcia. The AP spokesperson Paul Colford says Garcia’s photo is definitely theirs, "Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of the AP". Fairey admitted that he found the image in a Google search, but had no idea who had actually taken the photo.
Negotiations between the parties quickly broke down, and on 9 February 2009 Fairey and Obey Giant Art, Inc., owned by the artist and his wife, sued the AP in federal district court in New York, asking the court to protect him, under the Fair Use Doctrine, from copyright infringement claims raised by the AP.
Fairey's claim is unusual given that the AP accused Fairey of copyright infringement and would be the logical party to file a claim. According to Fairey’s claim, the AP attorney had warned that the AP planned to sue Fairey.
On 11 March 2009, the AP filed its response to the Fairey complaint. The AP’s counterclaim accuses Fairey of copyright infringement, violating the Digital Millennium Copyright Act and filing a fraudulent registration with the Copyright Office. The AP seeks the dismissal of Fairey’s claim and unspecified damages, including any profits Fairey and his company, Obey Giant Art, Inc made from the image.
The position of Stephen Fairey is that he is entitled to “fair use” protection. The fair use provisions of US copyright law allows copyrighted works to be reproduced under certain circumstances, including criticism, comment, news reporting and in educational materials. The "fair use" defence is a complicated area of copyright law which is based on the so-called "four factors" test:
(i) the purpose and character of your use;
(ii) the nature of the copyrighted work;
(iii) the amount and substantiality of the portion taken; and
(iv) the effect of the use upon the potential market.
In making the case for "fair use", Fairey tries to show that he added substantial elements of originality and his poster wasn't a reproduction. According to the pleadings filed with the court, "Fairey used the Garcia photograph as a visual reference for a highly transformative purpose; Fairey altered the original with the new meaning, new expression, and new messages; and Fairey did not create any of the Obama Works for the sake of commercial gain."
Fairly argues that the original photograph was to document events, while the purpose of the poster is "to inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader, through graphic metaphor."
"Fair use" doctrine
As in all "fair use" cases, the decision of the court could appear very subjective, for example, in Harper & Row v. Nation Enterprises, the US Supreme Court held that the copying of less than 400 words from the memoirs of President Gerald Ford constituted copyright infringement and was not a fair use. In Sony v. Universal City Studios, the US Supreme Court held that copying an entire movie would be considered fair use if the copying was done for time shifting purposes.
Why this matters:
In the digital world, whether legally or not, the creation, adaptation and transmission of content is now possible for all whereas it was once the exclusive preserve of media companies. Since news, graphic images and music have became widely available and exchangeable through the Internet, the business models of the news providers and music labels have begun to crack.
In the UK the "fair dealing" defence is broadly equivalent to the American "fair use." But it is differently formulated and it is unlikely a fair dealing defence would avail Mr Fairey on this side of "the pond."
Nevertheless the outcome of the case is eagerly awaited by IP pundits everywhere. Should the AP lose, the precedent will likely act as a new barrier over which others seeking to enforce more substantial copyright claims will be obliged to climb.