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?
I haven’t read the wikipedia article, but I have read and would recommend this comic book put out by the Duke Law School:
http://www.law.duke.edu/cspd/comics/
Fair use is a gray area that involves a lot of myth-and I try to stick with a better safe than sorry policy for my TV show (you may remember that this meant I had to entirely redo the music for the second Green Goon episode).
I can see the APs side of this, but being as the photographer who took the picture was a freelancer and didn’t sign an explicit contract with them, it seems that he (Mannie Garcia) should be the one making the case against Fairey. But, he isn’t. Quite the opposite actually-here’s a quote:
“I feel very proud that I made the photograph,” Garcia said. “I never would have imagined that it became what it is, and it’s pretty cool. The AP is being very aggressive with Fairey, and I don’t want to be a part of that. My last conversation with the AP was that I own the copyright, and that’s what I’m maintaining.”
http://www.mercurynews.com/newsspecialreports/ci_11666008
As with a lot of fair use, it’s a coin toss that I guess will depend on the court. I would say that things are leaning in Fairey’s favor though.