The AP Has No Case Against Shepard Fairey
A few days ago, the Associated Press announced that Obama’s famous HOPE poster amounts to copyright infringement. The artist behind the poster, Shepard Fairey, has never hidden the fact that he based his iconic creation on a photograph he found through Google. The AP thinks it owns the copyright to that photograph, since Mannie Garcia was freelancing for the AP when he shot it. With posters sold out, a special edition in theNational Portrait Gallery, and major exhibitions in New York and Boston, the AP wants in on the windfall.
But the AP would very likely lose this case if it ever ended up in court. That’s because, under copyright law, Fairey’s work almost certainly qualifies as “fair use” of Garcia’s photograph.
The term “fair use” gets batted around a lot, often incorrectly, and so deserves some explanation. At the most general level, copyright law prohibits you from copying another person’s original creative work. That means you’re typically not allowed to create work using someone else’s original unless you pay that person. “Fair use” is an exception to this rule: it says that sometimes you don’t have to pay someone to use his or her original work. Whether you do–that is, whether your new work qualifies as “fair use”–depends on what, exactly, the original work is, how much of it you’re using, how you transform it, and whether your new work hurts the commercial market for the original. (Note that the issue has nothing to do with whether anyone thinks your use is “fair.”)
By far the most important factor is how you transform the original work–but, contrary to popular belief, the transformation that really matters is the conceptual one, not the physical one.
Take, for example, an influential 2006 decision vindicating Jeff Koons. A fashion photographer named Andrea Blanch sued Koons for using a picture of hers in one of his paintings without paying her. Koons had scanned her photograph, which she had taken for a Gucci ad, and cut and pasted it into a digital composition he then painted. The federal appeals court said that Koons didn’t need to pay Blanch to do what he did, because of how thoroughly Koons had transformed the photograph.
The court explained that a “transformative” work adds something new to the original work, alters its message or meaning, takes on a different character or furthers a different purpose. It treats the original work as raw material in the creation of new expression, new aesthetics or new insights. Koons’s painting was “transformative” because it made a new statement altogether different from Blanch’s. Whereas Blanch said she was interested in creating an “erotic sense,” Koons explained that he wanted his audience to reassess its experience with commercial products and to consider how mass-marketed images “affect our lives.”
Jonathan Melber / The Huffington Post
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