Fairey v. Associated Press: A Case Study of Copyright Infringement and Copyright Fair Use
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Damien Allen: Good afternoon, and welcome to Traverse Legal Radio. My name is Damien Allen. I’m coming at you today from Studio 2B, and we are the phone with Professor Nancy Costello discussing copyright infringement, copyright fair use, and Fairey v. Associated Press case. Professor Nancy Costello is an Associate Clinical Professor of Law at Michigan State University College of Law, and she is the co-director of the Law College’s Legal Writing Program. She teaches legal writing from an intellectual property law perspective. She also teaches media law and has taught copyright law. Before she became a lawyer, she worked as a journalist for the Associated Press and the Detroit Free Press. Good afternoon, and welcome to the program, Professor Nancy Costello.
Nancy Costello: Hello. How are you?
Damien Allen: I’m just fine. And yourself?
Nancy Costello: Well, thank you.
Damien Allen: We’re very happy to have you on the program today. As I said at the beginning of the program, we are discussing copyright infringement, copyright fair use and the Fairey v. Associated Press case. Could you give us a brief overview of what the Fairey v. Associated Press case is, please?
Nancy Costello: Sure. Shepard Fairey is an artist who lives in Los Angeles. A lot of people are familiar with this particular work of art he made. It’s a picture of President Barrack Obama, before Barrack Obama was President. This particular image is a picture of Obama looking off into the distance with sort of a visionary, inspirational, hopeful look on his face and in his eyes, and it’s colorized with red, white and blue. It’s a head shot and just shows the shoulders, and it was on a lot of t-shirts during the Obama Campaign for President in 2008. It’s also been on posters and mugs, etc., etc. It’s just ubiquitous. It’s all over the country. It turns out that Shepard Fairey, to make this particular image of Barrack Obama, which by the way is a stunning artistic piece, he took a photograph, a news photograph, and it was owned by The Associated Press. This particular photograph was taken at a press conference that Barrack Obama attended with George Clooney, the actor, in 2006. The press conference was on the conflict in Darfur. Clooney had visited Darfur and come back and was discussing the issues over there, and Barrack Obama, as a first term senator, was at the conference also speaking. The AP photographer was crouching beneath Barrack Obama and took several shots, many shots, more than 100 shots I understand, and about five to eight of those shots were actually then printed up that the AP used and sent out over the wire. Some of those pictures, as we know, make it on to the internet. In January 2008, Shepard Fairey said that he was looking online to look for inspiration to make this particular image of Obama. He settled on this particular head shot that was photographed by Mannie Garcia of The Associated Press. He took that, and then he applied color to it. I think he also somewhat tilted the face a little differently and perhaps the eyes were a little different also. He made a lot of money off of this. He did not ask for permission from The Associated Press to use the photograph. After the photograph was used in, it was called the Obama Poster, I’ll call that the Obama poster image, some of the images also had the words printed beneath it like “Hope” and “Progress” and “Be the Change”, and it was used throughout, actually then Barrack Obama picked it up for his own campaign, and it was sort of a central piece of art in his campaign. Some time goes by, and The Associated Press discovers, in fact, it was their photograph that was used to make this Obama Poster image. They were interviewed; folks from The Associated Press were interviewed. They had approached Shepard Fairey and said, “We want to charge you a licensing fee. You have to license this image from us.: Fairey turned down that particular offer that The Associated Press made well after the fact he had been using this image, and he filed suit in New York District Court, I think it was the Southern District of New York, for a declaratory judgment and injunctive relief. What that means essentially is that he was asking the Court to make a decision before he would be sued by The Associated Press for copyright infringement. He was asking the Court to make a decision that, in fact, his use of The Associated Press photograph was fair use and, therefore, it was not copyright infringement, and he had a right to use it. Then The Associated Press is not only defending that particular lawsuit but has now counterclaimed against Shepard Fairy and is suing Shepard Fairey for copyright infringement. This case was filed in February 2009. At this point, the case is going through discovery, but it hasn’t proceeded too far, and there has been no resolution to it. What I did was I teach legal writing to first year law students at Michigan State University College of Law, and I teach it from an intellectual property perspective. Every year I choose a copyright case that I think is interesting and fresh, and I have my students work on it. This was in the news, and it was very current and has not been resolved, so I have 33 students working on this particular case and looking at the Obama Poster issue to decide if, in fact, it was copyright infringement or if it was fair use as Shepard Fairey claims.
Damien Allen: So that our listeners understand the terminology, what is copyright infringement?
Nancy Costello: Copyright infringement, in simple terms, is essentially that a creator of an original work of art, it doesn’t have to be a work of art, an original work, a creative work. It could be a book; it could be a film; it could be a sculpture; it could be architecture; it could be visual arts, as in this case. They can claim copyright protection. Copyright protective gives the creator of that work the right to copy his or her work, the right to sell the work for some type of compensation, or they must give authorization if someone else would like to copy the work and distribute. If someone chooses to copy the work and distribute it somehow, usually for commercial gains but not always, they are infringing on the copyright of the creator of the work.
Damien Allen: Conversely, I guess the next question would have to be what would constitute fair use?
Nancy Costello: A copyright holder has the right to be compensated for their work and they have the right to license their work for other purposes. Therefore, in licensing they can do this commercially, they can get money for the licensing. However, under the Copyright Act, it’s been decided that not in all cases is it copyright infringement if you don’t have someone’s permission to use their work. There’s certain cases in which it’s not infringement. Those situations might be if it’s news reporting. If you’re using a particular work in a news article, you don’t have to ask someone’s permission to use the work. If you’re using it for an educational purpose, you don’t have to ask someone for permission to use the work. You also don’t have to ask anyone’s permission to use the work if you are criticizing the original work or commenting on the original work. This makes sense in our society because we hold very dear, of course, this concept of free speech. You can imagine, say you’re an artist and you’ve spent a lot of time and creativity in making a piece of art. Would you logically give permission to someone to criticize that art, to say they don’t like it and perhaps downplay it so other people wouldn’t like and wouldn’t buy the art. Most artists probably wouldn’t give someone permission to criticize their own art. Therefore, because we live in this open society that we believe in debate and open comments and so forth, under the Copyright Act we say it’s okay, you don’t have to ask for someone’s permission to make a criticism of their work or to comment back on their work because you might not always get the permission to make criticism or comment. We don’t want to stifle debate, so we decide that it would be fair use and not copyright infringement if someone wanted to use a work to comment on it or criticize it. That’s the defense here for Shepard Fairey. Shepard Fairey is claiming that, in fact, he is commenting on the original work. His stylized, colorful image of Obama is commenting back on the original Associated Press photograph or perhaps criticizing it. In legal terms, if Shepard Fairey has transformed the first work, meaning that he changed the expression, the meaning, the message of the first work, then that can be fair use. This word “transformative” comes into heavy play here.
Damien Allen: As Fairey’s admitted he copied the photograph, that he used this original April 27, 2006, picture of then Senator Barrack Obama that was taken by Mannie Garcia, who was a temporary photograph for The Associated Press. This image was taken. He’s admitted to copying the photograph. How can you use the defense for fair use when a) you’ve admitted you copied the photograph, and even though it may be a transformative work, basically the same photo, hasn’t he made some form of monetary gain from using this?
Nancy Costello: First off, the easy part of that question is has he made some type of monetary gain from this, and most certainly he has. The Associated Press believes he has earned in excess of $400,000 in selling images of the Obama Poster image on t-shirts and cups. He also made these small placards for the Democratic National Convention and posters and so forth. He probably has made more than $400,000 on this, although I don’t know the exact amount because that’s being looked at in discovery right now. Certainly there was commercial gain here. The AP is interested in this because they think they had the right to make that kind of money off of their own image. Secondly, I think the crucial question is, you asked how is it fair use if he admitted copyright infringement. Usually when the fair use defense comes into play, it’s because someone has obviously copied a first work. They basically admit they’ve copied the first work. They don’t just admit that they copied but that “I could copy it without permission of creator of the work” because the fair use defense applies. They rely on fair use, so that’s what’s really looked at. The main thing here, when you’re looking at fair use, is really there’s two parts of it. Part of it is did Fairey transform the first work? Did he comment or criticize it? Secondly, the AP will say that did he have an economic impact on the market for The Associated Press’s photograph or the potential market for the photograph? Those are really two separate issues I thought I’d talk about. I had these 34 students looking at this, and a lot of them had a lot of good ideas. I’m picking their brains as much as my own. In terms of did Fairey transform the expression, the message or meaning, of the first photograph, The Associated Press could likely argue that, in fact, he didn’t because the first photograph (By the way, this should be posted on the website soon.) shows Obama as a pensive concerned man, a visionary politician, someone looking off into the future. The first photograph shows that quite clearly. It is an inspirational photograph. All the AP would say is that all Shepard Fairey did is slap color on this. He slapped the colors of red, white and blue. In fact, in the original photograph there’s a flag behind Obama’s head. What Fairey did was pull the colors of red, white and blue off the flag and just plaster it on top of Obama’s image. But the message of this inspirational politician, this visionary politician, is the same as what the photograph was. Really the message or the expression or the meaning wasn’t changed at all. It’s a real close call here. Fairey though, if he wanted to argue that he transformed it, one of the ways he could argue this perhaps would be that, while the AP’s photograph portrays Obama as perhaps an up and coming politician who may have presidential aspirations, Fairey’s photograph makes him heroic. He makes him like an icon. It’s not just that he might be an up and coming politician with visionary ideas. It’s almost as like he is the one who’s going to inspire us. He is going to be the president. It’s a very specific and rather iconic image. In fact, the other idea, and one of my students brought this up and I thought it was good, that it’s not lost, of course, on America that President Obama is the first black president, but by taking the red, white and blue and putting it over his face, he becomes not just a black president, he becomes the color-blind America. He embodies the diversity…
Damien Allen: The every man?
Nancy Costello: The every man, exactly. The embodies the diversity of America. With the red, white and blue, he is America. It’s a really interesting concept. One of my students also suggested, if you look at how the red, white and blue is placed on the photograph, the red is off to the right side and the blue is off to the left side. It almost, if you think back on the red states and the blue states, the red being Republican, the blue being Democratic, and the white coming in the middle, it’s blending those two colors together. It’s showing that he is the presidential candidate for all parties. The other thing I’d point out here is the type of image that Fairey created is very reminiscent of the Socialist propaganda art that you used to see in the Soviet Bloc. I traveled there in the 1980’s, and you would see these large images all sort of in these bright bold colors of green and white and blues of iconic images. You’d see it of Lenin or Stalin, what have you. This has that feel, the Obama image really has that feel of propaganda Socialist art, again this iconic art. I sort of thought of this as that Fairey was saying he’s just not any politician with a vision. He’s just not like the old administration. You see a lot of these photographs. Over the years I’ve seen these visionary pictures of Kennedy, visionary pictures of Clinton, visionary pictures of George Bush, and he’s saying he’s just not your sort of run of the mill president with the visionary look. He is the hope; he is the one who’s going to change us for the better. It is much more inspirational than the actual photograph itself, I think, from a lot of people’s perspective.
Damien Allen: What would make this case an important for copyright law?
Nancy Costello: I mentioned before that the photograph itself is very close to the image that Fairey created. Fairey essentially uses the exact tilt of the head, the same expression in the eyes. He uses the same slope of the shoulders, his look out into the distance and the same shadows in the face, because, of course, half of Obama’s face is shadowed and half of it is light in the original photograph. He uses the same shadowing effect essentially. The question becomes, it’s so close to the original, if we deem this to be transformative, what wouldn’t be transformative? What wouldn’t, therefore, be fair use? This could have a big impact, particularly on The Associated Press right now, as it could other media organizations, because The Associated Press uses its photographs, it licenses them for advertisements, for political campaigns, for various text and merchandizing, like different photographs have been put on tote bags, on posters, on mugs, on t-shirts, etc., and they make money off of this. They lost a lot of money, certainly hundreds of thousands, if not millions, of dollars, in not being able to do something like this with their original photograph. Couldn’t they, perhaps, have taken the original photograph and put “Hope” on the bottom of it or “Progress” on the bottom of it, and then put it on a t-shirt and sold it like that or licensed it to someone who would have done that. The AP might not have done themselves because, of course, they’re supposed to be a non-biased news organization. Right now, The Associated Press, like many other news organizations, are really struggling financially. Newspapers have lost subscribers and millions now that many things are published online, many things are published for free online, of course, and that’s where people are getting a lot of their news. They’re no longer getting it from newspapers. Newspapers are struggling just to survive. The Associated Press, of course, feeds newspapers. It also feeds radio stations and broadcast stations, but they look at this as a real source of their revenue, of making up lost revenue, because some newspapers are dropping The Associated Press at this point, opting instead to getting their news from other online sources. If The Associated Press is going to be losing income from this, how many other artists or whoever come along and download some photograph and use it for commercial purposes and claim it’s fair use. Then you’re looking at a big loss of revenue to places like The Associated Press or anyone else who would hold the copyright of this original art. I took that question a little further than you asked, I think, but it has a financial impact on a lot of plaintiffs or potential plaintiffs, but what it does is cut a very narrow line as to what is transformative or not. Yet, I think both The Associated Press and Shepard Fairey have great arguments. I think it’s going to be a case to watch for that reason.
Damien Allen: In your response to this question, could this decision effect the doctrine of fair use as it applies to art or any other form of artistic medium or something of that nature?
Nancy Costello: I’m talking here about the plaintiffs being a media outlet, but you could be talking about plaintiffs being any type of artist, a visual artist, a photographer, particular if you’re talking about visual mediums right now. You have sculpture, that if Fairey’s image, the Obama Poster, is seen to be fair use, and it’s so close to the original work, then what won’t be fair use. As long as you can make some type of argument that’s relatively persuasive that comments back on the original that somehow transforms the message, meaning, or expression of the original, then in this situation, it’s the AP losing the money. In another situation, it could be an artist losing compensation, and an individual artist doesn’t necessarily have very deep pockets. If they can’t get compensated for their work, then why continue to make art. Many artists do because it’s in their blood, and so forth, but some people just can’t afford to throw in the type of resources and time and materials it takes to make art if they don’t think at the end of it they might have a chance to sell it and recoup some of those costs. If so much becomes fair use, then you’re looking at the fact that you’re undercutting the compensation factor to the artist, the original creator. That person or those people may no longer be inspired to make art. That’s a real issue. That’s a problem.
Damien Allen: It makes me wonder what the argument would be if Rodin was alive today and you had the original sculpture of The Thinker and you have the joke images of The Thinker sitting perhaps on a toilet, which I’ve seen in my 41 years many times, it’s the same thing. You just change one thing.
Nancy Costello: That’s a little different, though, Damien, because under fair use, when I had said earlier that fair use protects defendants who copy a work under certain circumstances, and one of those circumstances was news reporting, educational use, and the others I mentioned was criticism or comment, but a natural extension of criticism is something called parody. In fact, there’s a whole line of cases out there, and there has been now for about 14 or 15 years, that says that parody is fair use because the original Thinker sculpture, of course, was this rather serious, kind of classical art piece that caused us to look at quite seriously and thoughtfully, whereas when you see The Thinker seated on a toilet, you’re first impulse is to laugh, isn’t it?
Damien Allen: Well, it is.
Nancy Costello: Right. And parody is all about that. It’s poking fun at the original. In fact, the copies of having The Thinker sitting on a toilet are, in fact, criticizing or commenting back on the original sculpture by saying, maybe he was taking himself a little too seriously. That type of work would be fair use. There’s certainly a lot of other examples like that. There’s a great example of, with an Annie Liebovitz photograph, a well-known photographer, much of her work has graced the covers of Vanity Fair, and she had a picture back in the early 90’s of Demi Moore, when Demi Moore was nine months pregnant with her first child. It was a picture of Demi Moore stark naked on the front of Vanity Fair and she has placed her hands in such a way to cover herself strategically. A hand and an arm is over her breasts, and other hand is over her groin area, but it’s a strikingly beautiful photograph, just beautiful. Leslie Nielson movies, I can’t remember…..
Damien Allen: The Naked Gun movies.
Nancy Costello: That’s it. The movie producers took the Vanity Fair picture done by Annie Liebovitz, and what they did was, they took the exact same pose, they photographed a woman in the exact same pose, nine months pregnant, the same lighting. Demi Moore had worn this really big diamond ring on one of her fingers to cover her breasts, and that same kind of ring is on this model’s hands, but instead of Demi Moore’s head of this naked pregnant woman, they put the picture of Leslie Nielson smirking. On the side of the picture, it says “Due in March”, meaning that’s when the moving is coming out. Annie Liebovitz sued for this because, of course, she makes her living off of her photographs. She lost. They found that it was a parody of Liebovitz’s work, sort of mocking the seriousness of the Venus like pose of Demi Moore. Of course, it was very funny, and it’s a really shocking, kind of striking picture, both of Leslie Nielson and of Demi Moore, actually, and they found that to be parody. That was a big case. There was another case similar to this. It was a landmark case, a U.S. Supreme Court case in 1994, called Campbell v. Acuff-Rose, and that’s where Roy Orbison’s song, “Pretty Woman”, was painted by 2 Live Crew. 2 Live Crew, which is a pretty raunchy rap group, took it and they essentially made a song, they took a lot of the music from “Pretty Woman”, like the bass riff and very memorable parts of the music, but they put different words into it. They made it sound like the fellow walking down the street was picking up a prostitute. They sort of then detailed some of the things that took place with this one particular the prostitute. They sued Roy Orbison’s, not Roy Orbison but whoever owns his music, Acuff-Rose, sued 2 Live Crew for this. They found that, in fact, 2 Live Crew was commenting back on the original “Pretty Woman” by basically saying that the days of wine and roses was over in terms of the dating relationship between men and women and that Roy Orbison’s song really looks at, you know he’s walking down the street. He’s seeing this pretty woman, and what he’s really thinking about is having sex with her. It doesn’t really say that in the song, but 2 Live Crew makes it clear that that’s what the person in Roy Orbison’s song is thinking. They just say that it’s sort of the lust versus romance dichotomy here. Justice Souter wrote the decision, and he said that, in fact, they were making a parody of the original song. That was when this whole concept of what is transformative, that you have to change the expression, message or meaning, really came into play in copyright law, in how we look at it now. Your Thinker example, the Rodin sculpture, would probably be found to be parody and would probably be found to be fair use.
Damien Allen: What could happen if Shepard Fairey is help liable to this?
Nancy Costello: Primarily what would happen here is he could lose a lot of money. He certainly would be stopped from using the image any longer, of the Obama Poster image, and the Court would require Shepard Fairey to pay The Associated Press a certain portion or the majority of the profits that he earned from having marketed the Obama image. Fairey would stand to lose a lot of money on this. As an artist, that’s not easy, although Fairey is probably better off than many artists. Also, he would no longer have any access to that image. He could no longer continue using it unless he decided to possible give some type of licensing fee to The Associated Press. At this point, I’m not sure that would be granted.
Damien Allen: Could any of this been alleviated by at least giving credit to the AP for utilizing this photo in the first place as the source right from the very beginning?
Nancy Costello: I don’t think the AP would let that lie. I can’t say for certain because I’m not the AP or the AP attorney here. By the way, I used to work for The Associated Press, and so I’m sort of on two sides of this issue. I’ve actually bought this t-shirt with the Obama image because I really loved the image, and then I later found out it was an AP image, and so I feel for both sides here. I don’t think the AP would have let that happen because, again, if they just sort of gave their blessing to Shepard Fairey and said go right ahead and use it, they stood to lose millions in any type of revenue they could have gained by marketing their own image. Right now, given how much news organizations like the AP are hurting, they are looking, I believe, at this as a source of revenue for themselves. They no longer are getting as much money out of the member newspapers that they once were. In this case, I don’t see that as a probability. I can’t say for certain, but it just feels to me that the AP probably wouldn’t have allowed that to happen.
Damien Allen: We would like to thank you very much for joining us today on Traverse Legal Radio. We’ve been speaking with Professor Nancy Costello, the Associate Clinical Professor of Law at Michigan State University College of Law. Thank you very much for joining us today, Professor Costello.
Nancy Costello: Thank you.
Damien Allen: You’ve been listening to Traverse Legal Radio. My name is Damien Allen. We’ll catch you next time. Everyone have a great afternoon.
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