Photo Attorney

Feb 5, 2009

AP Claims Fairey's Use of the Obama Photo Is An Infringement

As an update to my January 22 blog, the ajc.com reports that the AP has made a claim against Fairey for infringement of its photograph. Fairey's attorney claims that the use is permitted through "fair use." Who is right? Unfortunately, only a court can truly tell us. But that doesn't stop us from trying to figure it out!

For general information, my article on fair use is helpful. The summaries on fair use cases provided by the Copyright Management Center and Stanford University give a sense of how the courts have handled fair use issues for those particular circumstances. But therein lies the problem - because fair use is analyzed by a group of factors and those factors are applied to those situations, it's difficult to figure out what a court would do in a different matter.

Are Photographs Protected By Copyright?
Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 USC 102. Generally, the creative elements to a photograph include the angle, the lighting, the selection of depth of field, the exposure, the color balance, the crop, etc.

Some legal scholars think, however, that many photographs are not entitled to copyright protection (this is often referred to as a "thin copyright") where there is not much original copyrightable expression in a particular work. For the Garcia photo, some have argued that Garcia did not select the pose, the lighting, or Obama's expression, etc. However, Garcia did select the framing, the angle, and the depth of field for his photo (but the issue for fair use is whether Fairey copied Garcia's expression). Fortunately, the idea that photographs are not copyrightable is generally not held by the law or courts.

Therefore, assuming that Garcia's photograph is entitled to copyright protection, then Garcia (or the Associated Press) as the copyright owner, would own the exclusive rights to that photograph. (There is some question as to who is the copyright owner of the Obama photograph. See John Harrington's blog entry for more information).

The Rights of the Copyright Owner
Copyrights give the owner the exclusive right to do, or to authorize others to do, specific things with the photographs. Copyright law effectively gives the copyright owner a legal monopoly on the use of that image. It also gives the copyright owner the right to prevent someone else from destroying their work.

When you own a copyright, you have the sole right (also known as the "exclusive rights") to:

- reproduce the copyrighted work;
- display the copyrighted work publicly;
- prepare derivative works based on the copyrighted work; and
- distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

17 USC Section 106.

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work - in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.

So, while Fairey apparently traced Obama's face from the photograph, he arguably added substantial elements of originality with the colors and cropping of the photo. Note that if it is determined that the elements added to the photo are not considered to be substantial, then Fairey will be deemed to have reproduced the photo without permission.

Fair Use Analysis
Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. Specifically, Section 107 of the Copyright Act states that:

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. 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.

17 USC Section 107.

All four factors (as indicated by the "and" before the last factor) are considered by a court to determine whether a use is fair.

The "purpose and character of the use" is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a "transformative use") instead of simply copied and/or placed into another work. It's not just whether the new work is different than the original but whether the new work has a different purpose (such as a book review rather than another book). Here, Fairey's artwork was used as a campaign logo, but the photo likewise could have been used. This weighs against a finding of fair use.

A court is more likely to find fair use when the "nature" of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works. In this case, Garcia's photo was published. Thus, this leans towards a finding of fair use.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used. While such a "de minimis" use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example. Since the majority of the Garcia photo was used, the Fairey poster would be less likely to be considered a fair use.

When the unauthorized use directly effects and competes with the copyright owner's business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer - such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field. Again, since Garcia could have and was in the business of licensing photos, then a court would probably find this factor to weigh against fair use.

You Be the Judge
The Copyright Management Center has a checklist to help you consider the fair use factors, similar to the analysis that a court would undertake in a case. Here's my analysis of the Garcia v. Fairey case.
Many more checks appear in the "opposing fair use" column. Therefore, would I take this case as an infringement? Yep, in a heartbeat.

But as the Stanford Fair Use website explains:

[B]e aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varying court decisions. That's because the judges and lawmakers who created the fair use exception did not want to limit the definition of fair use. They wanted it--like free speech--to have an expansive meaning that could be open to interpretation.

How a court would interpret this use remains to be seen.

Thanks to Brian Garrett for submitting this topic.