May 31

APPEALING SUBJECTS
BY CRAIG MANSON
A Monthly - Weekend With Shades - Column








By now you've probably seen this poster which became an iconic emblem of the Obama campaign in 2008. Hundreds of thousands, perhaps millions, of these posters have been given away or sold since the inauguration of the President. But did you know that this poster was based upon this photograph?

The photograph was taken on April 27, 2006 at the National Press Club in Washington, D.C. The photographer was one Mannie Garcia, a freelance photographer on assignment for the Associated Press. The Associated Press thereafter used the photograph to illustrate a story that it sent to its members, i.e., newspapers around the world. The story was about then-Senator Obama's concern about human rights in Dafur.

Shepard Fairey, an artist to whom controversy is not unknown, used the photograph as the basis of his poster. The Associated Press was, to put it mildly, peeved. The AP accused Fairey of copyright infringement.

Today, you be the judge. We'll wait while you make a decision. [reasonable amount of time passes].

So what did you decide? Is Fairey liable to the AP for copyright infringement or not? Would it change your opinion to know the following:

1. The photographer, Mannie Garcia, had seen the poster but did not recognize it as being based upon his work. He did not know that it was based upon his photo until a reporter called him about it on Inauguration Day. In fact, according to the blog of Tom Garlish, the person tracked down the photo, Garcia had this to say:

"I've been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn't snap. It never occurred to me it was my picture. I thought, 'that's familiar.' I would see it and say that's cool, but it did keep sticking in my head.' He was quick to add he is not mad at Fairey, and he's not looking at any lawsuits. 'I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work. I wouldn't mind getting a signed litho or something from the artist to put up on my wall.'"

Tom Gralish, "A Last Word-HOPEfully-and Updates on the Obama Poster Photo Mystery" at Scene on the Road,

2. The photograph that I show you above is the photograph that ran in many AP newspapers. However, the entire photograph taken by Mannie Garcia on April 27, 2006 and run by many newspapers looked like this:

(Yes, that's George Clooney sitting next to him.)

What do you think now?

Shepard Fairey, the alleged infringer, took the highly unusual step of suing the Associated Press, the alleged victim of the infringement, to get the court to declare that he, Fairey, did not infringe AP's copyright.

Fairey seems to concede that Associated Press is or may be the owner of a copyright in the photograph. But he claims that his work is a "fair use" of the photograph. Let's consider whether he's right.


Justice Story's Book Reviews

In 1837, Jared Sparks, an historian and Unitarian minister who was later to become President of Harvard University, published a seven thousand page, twelve volume work called The Writings of George Washington. Volume I of this magnum opus was called The Life of Washington. The work included never-before-published official and private letters of the first President.




Jared Sparks, Historian and Later President of Harvard University











Three years later, the Rev. Charles Wentworth Upham, a minister and one-term Congressman from Massachusetts remembered most for his volumes on the Salem witch trials, produced a two volume work called The Life of Washington. Upham's 830 page work included 353 pages "borrowed" from the Sparks work., including 319 pages of letters.



The subsequent lawsuit between Sparks' publisher and Upham's publisher was heard in the United States Circuit Court for the District of Massachusetts, before Mr. Justice Story, sitting as Circuit Justice. [In those days, U.S. Supreme Court justice routinely sat on the Circuit Courts for the districts in their circuits]. Story had authored the previous year the U.S. Supreme Court's decision which freed the Amistad captives.

Rev. Charles Wentworth Upham, former Congressman, expert on Salem Witchcraft and alleged copyright infringer

Mr. Justice Story began his opinion in Folsom v. Marsh, 9 F.Cases 342 (1842), by noting:

This is one of those intricate and embarrassing questions, arising in the administration of civil justice, in which it is not, from the peculiar nature and character of the controversy, easy to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases.

He then proceeded to lay down "general principles applicable to all" similar copyright cases from then down to the present day. Concerning Upham's use of Sparks' work, Justice Story said:

The question, then, is, whether this is a justifiable use of the original materials, such as the law recognizes as no infringement of the copyright of the plaintiffs. . . . [W]e must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

Joseph Story (1779-1845), Justice of the United States Supreme Court, the Amistad judge







Story thus had stated what would become the core of the "Fair Use Doctrine." It would remain strictly a judicially-created doctrine until it was included by Congress in the Copyright Act of 1976. Now section 107 of the Copyright Act statutorily recognizes the concept of fair use:

. . . the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

The statute then describes factors to be considered in a "fair use" case, in much the same terms that Justice Story used:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In 1994, the United States Supreme Court decided a case that gave more meaning to these factors. The case was Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, and involved an unlikely pair of litigants. Publisher Acuff-Rose had sued Luther Campbell (aka "Luke Skyywalker"--note the spelling!) and his rap group, 2 Live Crew, for copyright infringement for Campbell's parody of the Roy Orbison song, Oh, Pretty Woman.

Justice Souter wrote the opinion for a unanimous Court which found in favor of 2 Live Crew. Justice Souter referred to Justice Story's Folsom v. Marsh opinion and drew heavily from the work of Judge Pierre N. Leval [a judge on the Second Circuit Court of Appeals wrote the influential article, "Toward a Fair Use Standard", 103 Harv. L. Rev. 1105 (1990)].

With respect to the first "fair use" factor, "the purpose and character of the use," Justice Souter harkened back to the Constitutional statement of "copyright’s very purpose, "“[t]o promote the Progress of Science and useful Arts . . . .”" Souter quoted Justice Story's observation that

"Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”

Therefore, said Justice Souter, "The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”

The key purpose of the first factor, Justice Souter wrote,

is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. . . .the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

Souter focused on the first part of the first factor, "purpose and character of the use," and not so much on the second part of the first factor, "including whether such use is of a commercial nature or is for nonprofit educational purposes." He said that this was "only one element of the first factor enquiry" and that to make this "commercial/nonprofit" element conclusive would swallow the rest of what the copyright law was meant to achieve.

Set to retire from the Supreme Court next month, Justice David Souter laid the framework for application of the statutory "fair use" factors

As to the second factor, Justice Souter again referred to Justice Story's opinion in stating that "that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied." So, for example, there is often a stronger fair use case if the copyrighted material is factual rather than a work of fiction--the work of fiction being "closer to the core of intended copyright protection as a work of creativity and originality.

Like the other factors, the third factor, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole, " must be applied on a case by case basis. Both Justice Story and Justice Souter point out that one need not copy an entire work to infringe a copyright, but that even a small quantity of work copied could be infringement if that portion amounted to "the heart" of the work.

The fourth "fair use" factor is "the effect of the use upon the potential market for or value of the copyrighted work." This factor, says Justice Souter, requires a consideration not only of market harm caused by the actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . . would result in a substantially adverse impact on the potential market” for the original.

So how might the controversy between the Associated Press and Shepard Fairey be resolved under this legal framework? Here's my take:

In the Campbell v. Acuff-Rose Music case, the Supreme Court emphasized that the first factor's most important element is whether the new work is "transformative." In my view, Fairey's work is clearly "transformative." He took a rather ordinary news photograph of a U.S. senator listening to someone speak at a conference and turned it into an iconic poster. Even apart from the evocative nature of the poster (relative to the photo), the art in the poster is transformative. Just how transformative Fairey's work is may be demonstrated by the fact that the photographer did not realize when he saw the poster that it was based on his work!

We can't totally dismiss the second element of the first factor, i.e., whether the Fairey poster was intended to be commercial or not. Fairey admits that he intended to make money on the project. In fact, he sold many copies of the poster. But then, the poster went "viral," and Fairey says he actually spent $300,000 distributing for free many times the number of posters he sold.

I think this first factor goes to the very essential core of this case and suggests to me that Fairey is likely to prevail.

In my view, the second factor, the nature of the copyrighted work, also goes to favor Fairey. As I said above, the photograph is a rather ordinary news photograph taken at a conference in Washington. How many such photographs are published every year? Look again at the two works side by side. Which is "closer to the core of intended copyright protection," that is, which one more likely "promotes the Progress of . . . the useful Arts?"

On the third factor, the amount and substantiality of the work used, there are several matters to be considered in this case, but none of them I think tips the balance very much one way or the other. Fairey used a good deal of the AP cropped photo and certainly the essential part of the uncropped photo. But here, that doesn't seem very important either way.

Finally there is the issue of whether and how Fairey's poster affected the potential market for or value of the photograph. There are several ways to look at this. First, the AP does not sell posters to its clients or anyone else. So one might say that the value of the photograph to the AP is not diminished by the poster (and perhaps is enhanced by the poster). But on the other hand, the AP holds the rights to market the photograph as a poster and to license other people to do so. Fairey's action deprived AP of those rights, or at least diminished the value to AP of those rights.

I think the facts of the case favor Fairey. But I think the case will settle with an acknowledgment in writing by Fairey that his work was based on the AP photograph and an acknowledgment by AP that it does not any longer contend that its copyright was infringed by Fairey. There may be a token exchange of money.

Lessons Learned

Many of the readers of Shades are, like me, both content users and content producers. Such creative people may face an internal tension in considering the issue of fair use. On the one hand, we want to protect our own product to the greatest extent possible; yet on the other hand, we want to be free of legal constraints on creating ("transforming") new content which may be based on some previously created item. The four "fair use" factors are useful to know, but it may be difficult to predcit how they might play out in court. And in the final analysis, only judges can say definitively what is and is not "fair use."

Remember that "fair use" also extends to such activities as commentary, criticism, news reporting, teaching, scholarship, research, and thanks to the Acuff-Rose case, parody. A lot of what our Shades readers do falls into one of these categories. But having said that, as I've written before, "fair use is not for sissies." If you have any doubt about using a particular matter, either (1) ask for and get permission to use it or (2) use something else.


Our Readers Ask . . .

Last month we discussed "public domain" issues, focused on the "public domain" as a legal concept. A number of readers have asked over the months about the physical "public domain." For example, Reader A asks:

Have you had any problems with taking pictures in public places, in that people demand you not take pictures of them or their stuff, even though they are in public and should have no right to privacy while in a public place?

This is a question that has a complex legal answer, but a simple practical answer. First, the legal answer:

Even a person in a public place has some right to privacy, defined fundamentally as the right to be let alone. Thus, you would be on the wrong side of the law if you followed and photographed an ordinary person eight hours a day just in public places. Or suppose this: you see an attractive couple having lunch at a sidewalk cafe. You approach on the sidewalk, being careful not to enter the restaurant property, and take a picture of them. Assuming they're not public officials or public figures, then you may be in the wrong.

On the other hand, if you are taking photographs at some large public venue that's fairly crowded and you're not targeting any specific individual, I doubt that any individual has a right to complain.

Now the simple answer: [assuming you're not an undercover investigative reporter] It always makes sense to ask permission to photograph a specific person or property. If they say yes, well, great. If they say no, then, generally, you should move on. [Discussion of the First Amendment's "news-gathering privilege" is for another day].

Reader B says:

I went to the county-owned cemetery today to take some pictures of gravesites. The caretaker told me I was not allowed to photograph gravesites without permission of the family; he said it would violate the deceased's right to privacy.

Well, this is not the first time I have heard this. Let's be clear about one thing: the dead have no privacy rights! While their families may have a right of publicity, this right is not infringed by a photograph of a gravesite in a public cemetery. As long as one is appropriately respectful, there is no basis for denying one access to a publicly-owned cemetery to photograph gravesites.

Reader C asks:

I went downtown to photograph a new building in our city. It has a very unique architecture; I'm told there's nothing in the world like it. As I was setting up my equipment, a security guard came over and told me that photographing the building was not permitted. He said something about "copyright infringement." How could that be? The building is in the middle of downtown and it's nearly 100 storeys high!

Since December, 1990, architecural works have been subject to copyright protection. The copyright law defines “architectural work” as “the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” Architectural designs embodied in buildings constructed prior to December 1, 1990, are not eligible for copyright protection. Architecture is also sometimes covered by trademark or what's called "trade dress" protection.

You may have "fair use" defenses here. I would ask the building management for clarification of or reasons for their policies. But I also doubt that they could stop from taking the picture from a location not on their property. Whether and how you could publish that photo is another matter entirely.


Image Credits

1. Obama HOPE Poster: Original Artwork by Shepard Fairey, 2008, based on photograph by AP/Mannie Garcia, 2006. Photographer of poster unknown. Included as exhibit in federal district court file, Fairey, et al. v. The Associated Press, et al., Case No. 09-Civ-01123, U.S.Dist. Ct., S.D.N.Y, filed Feb. 8, 2009.

2. Obama Photograph: AP/Mannie Garcia, 2006. Copy Included as exhibit in federal district court file, Fairey, et al. v. The Associated Press, et al., Case No. 09-Civ-01123, U.S.Dist. Ct., S.D.N.Y, filed Feb. 8, 2009.

3. Clooney-Obama Photograph: AP/Mannie Garcia, 2006. Copy Included as exhibit in federal district court file, Fairey, et al. v. The Associated Press, et al., Case No. 09-Civ-01123, U.S.Dist. Ct., S.D.N.Y, filed Feb. 8, 2009.

4. Jared Sparks: Wikipedia Commons, http://en.wikipedia.org/wiki/File:150px-jared-sparks.jpg (accessed 28 May 2009). Original artist inknown. Public Domain.

5. Charles Wentworth Upham: from the frontspiece of The Life of George Washington by C.W. Upham, published in London, 1852. Available on Google Books, http://books.google.com (accessed 28 May 2009). Public Domain

6. Joseph Story: Library of Congress, Prints and Photographs Division, call number: LC-BH82- 5151 A . Forms part of Brady-Handy Photograph Collection (Library of Congress). Available at http://hdl.loc.gov/loc.pnp/cwpbh.02616 (accessed 28 May 2009) Public Domain.

7. David H. Souter: National Archives and Records Administration. 1998. Available at http://www.archives.gov/publications/record/1998/01/news.html (accessed 28 May 2009). U.S. Govt work.