We've seen the red, white, and blue image of Barack Obama, with the word "HOPE" EVERYWHERE in the past year. It's been used on posters, t-shirts, buttons, even cupcakes. This iconic image probably now rivals those of Che Guevara and Mao Zedong.
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
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I just saw the article this morning in the PI, and thought it was really interesting (and great timing for our class).
ReplyDeleteMy gut reaction was to say no way on copyright infringment - it's just a cool poster and now the AP wants to make money off of it.
then i tried to think about in legal terms. So, applying the 4 factors:
1) nature of the work: as mentioned, the article was not totally clear on whether the artist was really exploiting the image commercially and profiting from it. however, i think that the commercial/non commercial nature is not as important, and what really matters is the transformative nature. and i think Fairey's work is highly transformative - yes, the poster is similar to the photo in the angle and position of the face, but it is also totally different. the photo is documentary, and the poster is art. the colors are different. the word hope is in the poster. the poster references pop art. thus, i think the first factor favors the artist.
2)nature of the copyrighted work: the work is a photo of Obama published in a newspaper. it is news and documentary. it is not a creative work falling within core of copyright protection. this element doesn't really favor either.
3) the amount taken: pretty much the whole photo was taken. this favors the AP
4)the market impact: in looking at derivative markets, if define narrowly, like the market for a poster of Obama using the colors red white and blue, this would favor the AP. But if define the market broadly, like the market for posters of Obama, there is little impact, because a huge market for that exists. i would say this favors the artist.
of course, a court can reach any result it wants, for example the court could just use the narrow market definintion and then find that factors favored the AP. I did not want to find infringement, and so used a broad defintion.
Also, it has taken the AP way a long time to act. the election is already over, and this image has been around for awhile, and posted everywhere, and used by tons of people; so it seems like their action should be blocked by laches (although probably too short of a time) or estoppel, or something.