Yesterday as I was watching news coverage of the thousands of tea parties that occurred all across America one particular sign caught my attention. It was a poster of Ronald Reagan in a style reminiscent of the now famous Barack Obama poster created by Shepard Fairey. You may recall that Fairey created a popular print made famous through the 2008 Presidential Campaign, which the Associated Press claims was an unauthorized copy of an AP photograph of then candidate Obama. The Associated Press came forward with a statement explaining that it believed Fairey’s work was an infringement upon its copyright in the photograph, and then days later in a strange move Fairey sued the Associated Press for a declaration that he did not infringe the copyright in the photograph and that his use was a fair use.
As I have explained in several articles on this topic, Fairey simply does not have any legal leg to stand on here because the copyright laws simply do not provide any support to suggest his copying is fair use. But wait, the case gets even more strange. After the AP brought a counterclaim against Fairey, Fairey is now claiming that the AP violated his copyright in the poster because they have copied that in news reports. Fairey is getting shockingly bad legal advice, and his attorneys are obviously more interested in grandstanding than in representing their client. There is zero percent chance that the AP will be found to violate Fairey’s rights. First, he has few if any, and second the law recognizes broad and liberal fair use rights with respect to news reporting, something Fairey’s attorneys should know given they are also making a First Amendment argument themselves. Obviously they haven’t read many First Amendment cases. Unfortunately, the First Amendment and cases dealing with freedom of speech are really quite interesting reads!
If I were the district court judge hearing this case I would already be inclined to issue sanctions against Mr. Fairey and his attorneys. They either Fairey’s attorneys simply do not understand copyright law and are engaging in legal malpractice, or they are being frivolous, wasting the court’s time and needlessly costing the AP money defending what is really an open and shut case. Either way, sanctions are in order. Given that Fairey’s lead attorney is the Executive Director of the Fair Use Project at Stanford University it seems likely that his legal team does understand copyright law and is just choosing to ignore maliciously prosecute this case against the Associated Press for some political gain. Sickening really!
The crux of the issue is really whether Fairey’s work is considered a fair use. This probably seems simple enough, but little is cut and dry when it comes to copyright law, particularly what is fair use. The relevant statutory provision — 17 USC 107 — states:
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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
In reality, the first, third and fourth factors are the most important, with the second factor typically playing little or no role in the analysis of most fair use cases. With respect to the third factor, Fairey copied all of the elements of originality that could be protected under copyright law, so there is total copying. With respect to the fourth factor, it is undeniable that Fairey injured the market for the photograph because the AP could have licensed him or others to create a derivative work. For better or worse the prevailing view in copyright matters is that if the infringer raises the value of the underlying work that is not to be considered under the fourth factor. We can debate about whether that makes sense or not, whether that should be the law, but the reality is that even if the AP photograph is worth more after Fairey’s infringement that does not mean his work is a fair use.
What this means is that this case will come down to the first fair use factor. Although the words are not present within this factor, the legal question that is at the center of the dispute is whether Fairey’s work was transformational. In order for Fairey’s use to be considered a fair use it will be necessary for Fairey and his attorneys to demonstrate that the use was transformative in nature. For those who are familiar with fair use cases and law, this is an extremely easy conclusion to reach. In fact, this situation is so easy that it would not even be appropriate as an exam question in a basic law school copyright class because there is simply no legal argument that could be made in support of Fairey on this issue. Fairey’s work was not and is not and never will be considered to be transformative.
In order to understand why Fairey’s work is not transformative it is critical to understand that the appropriate inquiry is and must be whether the work is “legally transformative.” The question is not whether an artist would consider the work to be unique, or whether from a political standpoint there is a certain message conveyed that is paradigm shifting. The question is whether the infringing work is really of a different character and is in fact a different work altogether. The prototypical example of a strong case of fair use based on the first factor alone is the case of parody, particularly a parody by Weird Al Yankovic. Weird Al always gets permission for his parodies, so this is not a real-life problem, but it respresents the point extremely well. Is a Weird Al song different from the original? The answer is yes. Beat It by Michael Jackson is very different when compared to Eat It by Weird Al, at least insofar as the lyrics are concerned. The two works are different, not substitutes for one another and engender completely different creativity. The same simply cannot be said with respect to Fairey’s work.
This all begs the question that prompted me to write this article in the first place though. Is the Reagan poster a transformative work and a fair use when compared with the Fairey work? Under Fairey’s logic it would most certainly have to be a transformative work because swapping Barack Obama for Ronald Reagan clearly changes the entire message of the poster. No one can look at the two images and believe there is any overlap in meaning or message. Legally the Reagan poster may be considered a parody because it is obviously making a statement about the original, but I would have to say that in all likelihood the Reagan poster would not qualify as a fair use under copyright law and would infringe upon Fairey’s work. The trouble Fairey has is that he is on record making the argument that his work is a fair use when compared with the AP photo, so it would be a complete 180 degree change for him to then argue that the Reagan poster is not a fair use, and judges and juries are not found of “cake and eat it too” arguments by litigants. Moreover, there is little chance that Fairey could succeed in a copyright infringement litigation against the creators of the Reagan poster because Fairey has few, if any, rights in his work anyway. Rights in a derivative work only extend to the creativity interjected, and the creativity that Fairey interjected is minimal at best.