Obama, Reagan and Tea Party Copyright Infringement

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!

AP photograph and Fairey copy

AP photograph and Fairey copy

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.

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16 comments so far.

  • [Avatar for Cameron]
    Cameron
    December 6, 2009 10:31 pm

    Gene,

    I am curious if you are familiar with the Jeff Koons case from 2006 (citation: 467 F.3d 244) that was decided in the same district that Fairey filed in. It would seem the facts, while not identical, are very similar and the court decided Koons’s use was indeed fair.

    If you believe Fairey’s poster was not transformative–and I am not saying I disagree with you–what do you see as the distinctions between this case and the Koons case?

    -Cameron

  • [Avatar for Gene Quinn]
    Gene Quinn
    August 29, 2009 01:04 pm

    Melina-

    Unfortunately, that is the nature of copyright law, as I am sure you well know. There are few, if any, real bright line answers.

    Sorry to make your head spin, but thanks for reading.

    -Gene

  • [Avatar for Melina Benninghoff]
    Melina Benninghoff
    August 29, 2009 08:38 am

    The only claim he would have is if he copyrighted the design and the had templates of one that said hope. I’ll look it up at the office today. I vaguely remember this from law school, I have been reading all the posts for months now and haven’t posted in some time, but I must say “please stop making me think so hard”. Everytime I come here I leave wondering if I have the right answer. Then it eats away at me until I have 4 or 5 books open looking for answers. Actually it is one of my guilty pleasures. 🙂

  • [Avatar for Bill Hollimon]
    Bill Hollimon
    June 5, 2009 06:57 am

    Gene,

    On my original comment, the applicable law is in 17 USC 103:

    (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
    (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

    My point is that under (a), if Farley’s use is “unlawful,” i.e., it is not fair use, then he has no rights in his derivative.

  • [Avatar for Handy Napkins]
    Handy Napkins
    May 7, 2009 07:12 pm

    Gene,
    Interesting article, I didn’t know about the Stanford connection.

    I think this is going too far:
    “Fairey’s work was not and is not and never will be considered to be transformative.”

    As in other areas of the law, there is no absolute definition of “transformative”. Different courts look at different elements, and no element is exclusive across the circuits. Certainly Fairey’s poster would fail a parody or criticism test because his poster does not direct its commentary toward the original work (the news photo). However, some courts have focused instead on “purpose” specifically. Ask: could a member of the general public use Fairey’s poster for the same purpose as the original news photo? I think the answer to that could be no, if a court were to focus on the newsworthy elements of the photo and not on the creative or expressive nature of the photography. In other words, the original AP photo conveys information about a press conference. Fairey’s poster conveys no information or context, instead offering a political message which did not exist in the original photo.

    One might view this focus on purpose as a stretch, or at best a minority viewpoint, but it does seem to fit Justice Story’s definition as quoted in Campbell v. Acuff-Rose:
    “The central purpose of this investigation is to see, in Justice Story’s words, whether the new work ‘merely supersedes the objects’ of the original creation [citations] or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’”

    Certainly Fairey’s poster “alter[s] the first with new expression, meaning, or message.”

    In the balancing of all four Fair Use factors, Fairey’s overall case is weak at best, but I think there are courts out there that would say his poster is transformative.

  • [Avatar for breadcrumbs]
    breadcrumbs
    April 21, 2009 12:43 pm

    I think that I am interested in the difference between “transformative”, “artistically transformative” and “legally transformative”. Can you help me understand?

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 21, 2009 10:04 am

    breadcrumbs-

    I was not familiar with Warhol’s work so I did a quick Internet search. I would say that some of his Monroe works would be transformative and other not. The ones that I found that are mostly colored with outlines I would lean toward saying are transformative. What do you think?

    -Gene

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 21, 2009 10:03 am

    ipguy-

    I am not sure that the AP had difficulty determining which photo was copied. I thought they were researching to make sure that they had properly acquired the rights from the photographer, which seemed the prudent thing to do.

    I believe artists would think Fairey’s work to be highly transformative, but I just cannot see how the work is legally transformative. The message conveyed by the poster is probably extremely different than the message conveyed by the photograph, but copyright is about copying of the elements. I have never really liked the rule that an infringer cannot escape infringement based on showing what was not copied, but that law is pretty well established. I have always argued that if enough is not copied then that should show that there is not copyright infringement, but the weight of case law disagrees with me on that point.

    We will see what happens. I just think that Fairey’s attorneys are abusing the process because there is quite obviously a deal to be had to make the AP and Fairey happy. I also don’t like the trickeration relating to Fairey’s attorneys getting an agreement from the AP not to sue pending settlement discussions and then under that pretense gaining time to file their own lawsuit first. That is under handed and beneath Stanford University (or should be).

    Thanks for your continued input.

    -Gene

  • [Avatar for Scott Bourne]
    Scott Bourne
    April 21, 2009 09:46 am

    Whether or not Fairey “both removed information and added information” there’s no doubt in my mind that his “work” wasn’t anything close to “transformative.” I personally hope this case goes to trial. The argument that Fairey did anything but rip off the original photo is on its face downright silly. While the people representing Fairey have an agenda that has nothing to do with him personally, the pattern of abuse of the “fair use” defense has to be stopped. I want a U.S. District Court judge give us a ruling that we can use to put an end to the rampant theft of work by photographers who are trying to survive in an increasingly difficult landscape.

  • [Avatar for ipguy]
    ipguy
    April 21, 2009 08:26 am

    Gene,

    Thanks for your further thoughts. Now I see we probably agree more than I thought on the analysis – just not on the facts. If the court finds that all Fairey did was copy an AP photograph, and add some color, then I agree he should and will lose. It seems to me, however, that he probably did more than that -but then I am not an artist and perhaps what he did was truly trivial. Query this – if the photo was directly copied why did folks, including the AP, allegedly have difficulty in identifying which photo was “copied”? Doesn’t that also likely speak to how much of the photo was truly “original” and not merely factual?

    Perhaps the modifications Fairey made to the portion of the photograph he used were trivial, but it looks like he both removed information and added information (e.g. the original photo with Clooney has a microphone that had to be ‘removed’ and the missing information inserted, the eyes have been changed substantially as well it appears). If that is true (which remains to be seen)- would you agree that his efforts go beyond mere copying and is certainly not the same as photcopying a book? The Supreme Court said the inquiry is ‘whether and to what extent the new work is “transformative.”‘ What amount of change is ‘transformative’ ?

    I think this will be good case to answer this question in a factual context that is quite different from parody cases. From my perspective, there are good arguments on both sides.

    Based on Fairey’s arguments, I think he would agree with your point that the Reagan HERO poster was a “fair use”.

    Thanks again and keep up the good work!

  • [Avatar for breadcrumbs]
    breadcrumbs
    April 21, 2009 08:15 am

    Gene,

    Do you find Andy Warhol’s Monroe work “transformative”?

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 20, 2009 03:21 pm

    ipguy-

    Thanks for your comments. I have not seen the answer to the AP counterclaim that Fairey filed, but news outlets are reporting that he claims that the AP is infringing his work.

    The shockingly bad legal advice that Fairey is getting is that his work is transformative. When you break down what orginality goes into a photograph there is not all that much, and Fairey took all that could potentially be considered original. All Fairey did was copy the photo into a different medium and add color. Copying into a different medium has always been considered hardly transformative. This same argument was made with respect to photocopying a book, and routinely in various cases this has been determined to be not transformative or only miniscule transformation that does not support fair use. Certainly, the more transformative the better the fair use argument, all the way to the point where fair use could be found based on transformation alone. If this is transformative it would be the first of its kind in terms of the law, and would overrule well established legal principles. So the only way this case is not frivolous is if there is a good faith attempt to change the law, and that is a stretch. They are not acknowledging that, and saying that this is what the law is, so his attorneys seem to be intentionally misleading.

    My point with the Reagan HERO poster was that if Fairey thinks his use is a fair use then the copy of his work embodied in the Reagan poster would also be a fair use. If transformation means a different medium, then it would have to also relate to using Fairey’s influences to create a similar poster based on a famous Reagan photograph.

    -Gene

  • [Avatar for ipguy]
    ipguy
    April 20, 2009 02:34 pm

    Maybe I am missing the point here, but as I understand it, and contrary to the news article you cite, Fairey has not alleged the AP infringed a copyright in his work, he appears to be arguing that Fairey’s use for political/artistic commentary (which Fairey alleges to be transformative) is at least as fair a use as the AP’s routine use of copyrighted artistic works for news reporting. The argument was set forth as an affirmative defense based on the doctrine of unclean hands.

    While one may utterly disagree with that argument, I fail to see how it amounts to “shockingly bad legal advice” that is sanctionable or frivolous. Rather, it strikes me as resourceful and legally on-point, and supported by precedent – whether or not it is factually a winner. Perhaps I need to up my meds, but I think it is going to be a very interesting case and I am struggling to understand why so many have been so quick to dismiss the merits.

    Isn’t that the same mistake the Sixth Circuit made in Campbell v Acuff Rose?

    Doesn’t the “transformative” quality of the work potentially outweigh the other fair use factors? [e.g. see Campbell v Acuff Rose]

    “Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, [n.11] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. ”

    As to the Tea Party and Reagan HERO poster – regardless of whether Fairey’s use of the AP photo is transformative, certainly the Reagan HERO poster, while parody, is a completely new work [setting aside the issue of the underlying Reagan photo]. Reagan HERO shares or borrows little but noncopyrightable elements and ideas from Fairey’s work – it does evoke the orginal and comment on it however, but not in ways that could infringe a Fairey copyright. “Obama DOPE” on the other hand might infringe if not a fair use. Assuming Fairey’s poster was entitled to its broadest copyright – how would Reagan HERO infringe? As a derivative work? I just don’t see it.

    All that said, I’ve yet to read your other analysis of this case and will do so. Perhaps you’ll set me straight yet.

    I do enjoy your articles and commentary and just happen to disagree with your analysis here.

  • [Avatar for adele pace]
    adele pace
    April 18, 2009 07:57 pm

    Agree with Bill.

    A person can still hold an entitlement in rights associated with a derivative work to the extent that it is sufficiently transformative to give rise to an independent copyright. There is nothing to stop them holding copyright in their derivative work and yet be liable to the underlying copyright owner.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 18, 2009 10:47 am

    Bill-

    I understand your point, but I think legally it is more correct to say that Fairey would have rights associated with the derivative work, but only with respect to that which he added which is original. It is my understanding that he would not have any right to distribute his own work without the permission of the underlying copyright owner, but that he would be entitled to copyright the derivative work himself.

    -Gene

  • [Avatar for Bill  Hollimon]
    Bill Hollimon
    April 18, 2009 09:53 am

    Fairey has NO rights in his derivative work if it was made without the permission of the owner of the CR in the underlying work.