Poster-Child Case for Fair Use or Illegal Art?

 

The Associated Press is claiming that it is the copyright owner of a photograph of President Obama that was used by an Obama supporter to create to poster for the political campaign and the now-famous poster is a copyright infringement of its photo (see above).

Steve Fairey, the creator of the Obama poster was making a classic "fair use" of the news photo, something copyright law permits without the need for permission from the copyright holder or any payment to the copyright holder.  Fair use is an exception to the copyright holder’s exclusive rights.

While there is no "bright line" test for determining if any particular copying or use of a copyrighted work is permitted by fair use, there are specific factors that must be weighed according to the facts of the particular situation.  

One issue to weigh is the effect on the market for the original work from the subsequent use.  In this case, Fairey’s use of a news photograph substantially increased the value of the original news photo (which would otherwise disappear without comment or value.)  However, now the image is one of the most famous in popular media, inspiring hope and change in a troubled nation.  The value of the AP’s news photo has gone through the roof since Fairey used it to make a political poster.   This positive effect in the market for the original photo weighs very heavily in favor of a lawful fair use.

Furthermore, Fairey’s original purpose in creating the poster was purely non-commercial political speech, another fact that counts in favor of finding his poster to be a lawful fair use permitted under copyright law.

Copyright law also looks at the nature of the work copied to determine how much fair use copying to allow in any situation.  If the original work is "highly creative" such as a piece of fiction, it is warranted more copyright protection.  If it is less creative and more akin to news reporting, then it is given less copyright protection and fair use can be applied more liberally.  This was a news photo of a political figure in a political campaign, so this factor weighs heavily in favor of Fairey’s poster being a fair use.

Furthermore, Fairey did not simply reproduce the original photograph, but he significantly transformed the photo (with color, text, texture, etc.) to give the poster an entirely new and distinct character from the original news photo.  The transformative nature of Fairey’s image is another factor that weighs heavily in favor of Fairey’s political poster being considered a fair use under copyright law.

Given all of these factors in favor of fair use and the particular circumstances in this case, it could be considered the "poster-child" case for fair use.  It is unfortunate that the AP is trying to turn political expression into illegal art.   But these facts would be a good opportunity to set some positive legal precedent protecting fair use of political expression should the AP pursue this matter in the courts.

What can be said of a news agency reporting on a story in which it is a subject?  The AP wouldn’t try to influence public opinion by describing Fairey as "a long time rebel with a history of breaking rules" in its reporting of its claim against him, would it?

5 Feb. 2009 Update: It has now come out that the AP likely is not the copyright owner of the image as it had no written agreement with the photographer who took the photo.  Let this be an important lesson: a written agreement is required for copyright to transfer.  The original photographer Mannie Garcia appears to be the copyright owner of the photo, not the AP.  I wonder if the AP will report on that.