The Associated Press is demanding an undisclosed amount of money from Shepard Fairey, the creator of the near-ubiquitous “HOPE” poster [Wireds article].
“Fair use” has got to be one of the trickiest bits of copyright law especially when, in this case, the work also neatly falls into the “derivative works” classification. Wikipedia has a nice article on fair use which lays out the legal definition which include some helpful, enumerated points:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The “HOPE” image strongly exemplifies the first point, however the fourth point is more interesting to me. Is the market for the original AP photo negatively impacted by Fairey’s work? Initially I think, “of course not… if anything it augments the popularity and, subsequently, market share of the original.” However, if you followed the link to the Wired article, you’d have noticed that the “HOPE” image appears, but the AP photo does not. That is because while Fairey’s image is free to use, the AP photo is not. Many more news outlets may have licensed the AP photo but instead declined and instead opted to use the free “HOPE” image so so therefore it is possible that Fairey’s work has negatively impacted the market for the original copyright holders.
Of course, I am torn. As a consumer of these works my life is only made better by the variety. I’m thrilled by the popularity of Fairey’s image…. I have one hanging in my living room. However, I can see the perspective of the AP photographer. What’s your opinion?