It is well known by now that Shepard Fairey, creator of the ubiquitous “Hope” poster of then-candidate Barack Obama, is locked in a copyright infringement lawsuit with the Associated Press (AP) over the poster. In an interesting series of events, Fairey and his counsel at the Stanford Fair Use Project sued the AP first. After the AP made public its position that the poster infringed its copyright in a photograph of Obama, Fairey preemptively sued the AP, seeking a declaratory judgment that the poster does not infringe the AP’s photograph. On March 11, 2009, the AP filed its answer and counterclaim. The case, if fully litigated, promises to be important for the development of the fair use doctrine in copyright law.

According to the pleadings, both parties agree that the Hope poster is based on an image of President Obama at the National Press Club taken by Mannie Garcia, an AP staff photographer, in April of 2006 (see a side-by-side comparison of the poster and photograph). Because Mr. Garcia was an employee of the AP at the time he took the photograph, the copyright in the photo is owned by the AP under the work made for hire doctrine. So in a sense, Fairey admits that he copied the AP photo. However, Fairey claims that his image is not copyright infringement because it is protected under the fair use doctrine.

The fair use doctrine was judicially crafted and eventually codified by Congress in Section 107 of the Copyright Act. Fair use is “not an infringement of copyright” under the language of the statute; so although it is useful to think of fair use as an affirmative defense to copyright infringement, it is in fact not an infringement of copyright at all. Section 107 provides that in determining whether a particular use is fair, courts should look to (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for the work.

Under the first prong of the test, one inquiry to be made is whether the use is “transformative.” The AP alleges that Fairey’s use “add[s] nothing” to the AP image, that Fairey “elected to free-ride on Mr. Garcia’s efforts and creative choices,” and that Fairey’s work is little more than a “‘paint by numbers’ with the AP’s copyrighted image.” For his part, Fairey argues that he merely used the AP photo “as a visual reference for a highly transformative purpose,” and that he “altered the original with new meaning, new expression, and new messages.” In a particularly inspiring passage, Fairey’s counsel claims that “[b]y evoking stylized propaganda posters more often associated with autocrats and dictators, Fairey at once portrays the inevitability of Obama’s triumph, while suggesting qualities of wisdom and vision that pull viewers willingly into Obama’s message of hope, progress and change.” I hope there are some art history majors on the jury!

As for the fourth factor, the effect of the use upon the market for the work, Fairey claims that he sold only 4,000 posters, and that he used the revenue from those posters to print and distribute 300,000 additional posters for free to benefit the Obama campaign. The AP alleges that Fairey has made about $400,000 from use of the image on sweatshirts, buttons, and elsewhere, and that although Fairey has “attempted to cloak [his] actions in the guise of politics and art,” he is “profiting handsomely.” Importantly, the AP claims that it was willing to license Fairey’s use but that he refused.

As user-generated content continues to proliferate, importance of the fair use doctrine will continue to rise. This case promises to be an important step in the development of the doctrine, and we anxiously await its result.

P.R.

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