Fairey fair use? AP thinks not.

/ 5 February 2009

Holy cow! After all this time the AP is now considering a case against Shepard Fairey for copyright infringement in his use of an AP photo as the foundation of his iconic image of Barack Obama.


Let’s take a look at this from the perspective of the four factors that help courts determine fair use:

Factor #1: Purpose and character of the use… Shepherd Fairey has made some commercial use of this image, this weighs against his case for fair use. Somewhat mitigating this finding, though, would be the degree to which Fairey allowed the image to “go viral”. He was not out to make a buck on this image, he was out to move public opinion. Most of all, the use of this work by Fairey is clearly “transformative”. He took a news photo and made it street art. It is no longer a photograph, no longer “objective”, and not even suitable in the contexts where the original AP photo would have been suitable. Imagine, for example, a newspaper article describing McCain and Obama’s performance at a debate using AP photos to illustrate. Could they substitute the Obama AP photo with the Fairey image? No way, it is much too celebratory, much to subjective, nothing like a news photo. In the end, I think this factor tilts strongly in favor of fair use.

Factor #2: The nature of the copyrighted work… The copyrighted work in this case, an AP photo, was clearly published. This weighs in favor of fair use. It is an artwork (a photo), but not a particularly notable one. It is hardly consumable, in other words the fact that one has a copy of the image as Fairey re-imagined it does not make it any less available as a photograph. All in all, I believe this factor would tend to support fair use in this case.

Factor #3: Amount and substantiality of the portion used… While the Fairey image uses the whole head of Obama, it does not use the flag at all. I see the flag in the AP photo as quite a striking aspect of the photo. Furthermore, the Fairey image does not use any of the original coloring of the photo. At best this somewhat weighs against fair use in my book.

Factor #4: Effect on the potential market for or value of the work… As I noted in factor #1, the Fairey image, while it clearly uses the AP image as its foundation, is nothing like the AP image in spirit. It cannot possibly effect the market for the AP image in a negative way because it is so different in emotional quality from the AP image. In fact, if it has done anything for the AP image’s marketability, it has probably increased it. This is the image on which the icon was founded, that has tremendous value to the AP. It is at least plausible that Fairey’s use of the image has improved its position in the market. Weighing against fair use was the fact that the AP does make a license available and that Fairey did make many copies available for non-educational purposes. Ironically, if Fairey had sought a license he might have been bound to manage the release of his version of the image in a way that would completely undermine his goal of getting a viral “street” image off the ground. This is the hardest factor to weigh, for me, but I think in the end it is at best a wash, maybe a slight tilt toward fair use.

Bottom line: I don’t think the AP has a case that will fly here. In fact, if they pursue it much further, they will more likely set precedent that this kind of use of their images is allowable. In the end, only the courts can really decide this, but I imagine the AP would rather live with the ambiguity than clear case law against them.

Why raise this in the first place? At first blush it seems terribly ham-handed to me and I can’t imagine the AP will get much positive press for the effort. On the other hand, “there is no such thing as bad press.” Everyone will know that the Fairey image is based on an AP photo (did you know that before today?). Everyone will know where to find that original photo. Artists will be cautious (a bit chilled) about using other AP photos without purchasing possibly unnecessary licenses. As long as they don’t actually pursue the case much further, it looks like a winning strategy for the AP.

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

Good for Fairey, this is exactly the sort of use we need to defend in our culture. If the AP pursues the case, may the whirlwind descend on them!

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