The Fairey v. AP case has taken an interesting turn.The photographer, Manny Garcia, has now initiated suits against both Shepard Fairey and the AP claiming copyright infringement of the original photograph. Shepard Fairey is maintaining that his poster is transformative of the original photograph and is appropriate under the fair use defense.
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Damien Allen: Good afternoon, and welcome to Copyright Right Law Radio. My name is Damien Allen. Today we are discussing the Shepard Fairey et. al. v. The Associated Press case. Once again, there have been a couple of new developments since the last show we did on this and joining us via the telephone is Jo-Na Williams. Jo-Na is a fourth year law student at Suffolk University Law School in Boston, Massachusetts. She’s also a member of the American Bar Association’s IP Committee 304 and author of The New Symbol of “Hope” for Fair Use: Shepard Fairey v. The Associated Press article from the September/October issue of Landslide magazine. Good afternoon, Jo-Na, and welcome to the program.
Jo-Na Williams: Good afternoon, thank you. It’s really great to be here.
Damien Allen: There’s been a lot of opinion and a lot of rhetoric flying around about this case. Shepard Fairey is a controversial artist based in California, on the west coast, and he did a work based off of a photograph of President Barack Obama in 2006 – he was not president yet, he was still Senator – at a Darfur conference, if I remember correctly, and he took this work, and he added some color to it and did a little manipulation, and he came up with this very iconic, awe-inspiring photo of President Obama in a red, white and blue scheme, and underneath it said “hope”, and it definitely showed hope, or at least to the people looking at the picture. This caused the AP a little bit of grief. They decided to file suit. Shepard Fairey decided to file. This case has become very convoluted, and now with the new development, the original photographer – the person who took the photo this is based off of - Manny Garcia has joined the suit opposing both sides of it, and as of the end of January, Federal Circuit Court Judge Alvin K. Hellerstein has disclosed that Shepard Fairey is under criminal investigation for submitting false images in the case. So, there’s all kinds of new stuff going on. Welcome to the program Jo-Na and let’s talk about Shepard Fairey in this case.
Jo-Na Williams: Well, I actually have seen the new developments in the case, and honestly I was quite shocked that he’s actually facing a criminal investigation and having admitted that he actually fabricated evidence to conceal the mistakes that he made and which photo he actually used for the iconic poster that is now recognizable all over the world. So, very interesting.
Damien Allen: First, you have the criminal investigation. Shepard Fairey and his attorneys have submitted for a delay in time in order to prepare this case which was denied. The criminal investigation will undergo no matter what, and the case versus the Associated Press will be congruent at the same time, but now another thing has muddied the waters. Manny Garcia has joined the suit, and he’s not technically aligned with the AP, he’s actually saying neither Shepard Fairey nor the Associated Press has rights to this because the issue is was Manny Garcia an employee of the AP, and he’s stating he was not. Wouldn’t this normally be a situation where you’ve been sent to an assignment, wouldn’t you normally have paperwork or some form of agreement in order to take these pictures and submit them to the Associated Press?
Jo-Na Williams: Yes, and based on what we’ve seen as far as the development in this case, they haven’t disclosed whether there was actually an oral agreement, which is still binding under copyright law, or whether they had some form of writing, and if you are an independent contractor, essentially you can – if it’s a work for hire document under the copyright law – you would relinquish your rights because you are being hired to create some type of work for the entity that is employing you at that time. And if you’re actually an employee, there are a few different criteria that would apply at that point. And according to Garcia, he was not an employee, and the kind of factors that you would look at is whether that person filed his taxes as employee, whether he was receiving benefits, whether he could apply for unemployment, whether he could join a union. So these are types of things that and employee could actually do. Since this was an isolated, five week assignment, it’s more likely that he is an independent contractor, but because it’s a little fuzzy on whether we really know if they had any type of oral agreement or a writing in place. We, as the public are a little bit fuzzy on the details around that.
Damien Allen: If Mr. Garcia was not an employee, if he was not contracted by the Associated Press to take these photos, and I imagine there was probably many journalists or photojournalists on the scene that day, and again, at the beginning of this case, neither Manny Garcia nor the Associated Press identified the photo as belonging to either of them. They had to be told that it was a photo taken from their shoot.
Jo-Na Williams: Yes, and actually, in my opinion, I think that it would be understandable that they may not know that the photo was actually theirs because you do have many photojournalists on the scene at something that’s so well-known like that Darfur Conference. George Clooney was there. There were many people that were there covering that conference, so, I’m sure that even just in Manny Garcia’s own reel, he probably had, you know, 100’s and 100’s and 100’s of photos, in addition to the ones that were taken for other journalists, and since Fairey actually claimed that he just did a simple Google search and found this picture, it would make sense that, that maybe it wouldn’t immediately be identified as a photo that’s owned by Garcia or the AP, but at the same time, if you’re going to assert these types of claims and claim copyright infringement, you should be able to recognize the work that you are asserting the claims for.
Damien Allen: At the heart of the matter, disregarding the criminal investigation, it’s who owns the rights to the original photo, and then the fair use, which Shepard Fairey is still ascertaining to; this was a fair use, he manipulated the photo, it is transformative from the original photo. What are the things that the courts are going to look at to determine if it was transformative or if it was transformative enough to make it fair use?
Jo-Na Williams: Well, actually when you look at the fair use defense, because remember, this is actually a defense, it’s not a part of copyright law, it’s actually a defense when someone is asserting exclusive rights for a particular piece of work. So when you have this type of a claim, and then you have the defense of fair use, generally, the court will look at four factors to determine whether this was a fair use or not. Those four factors are Number One being the purpose and the character of the work, which means, what exactly are you using the work to do and have you taken the work and created something new. They also look at the nature of the copyrighted work and whether the particular expression that you have, can it weigh against the appropriateness of the actual copyright. The second element is the nature of the copyrighted work and basically when you look at this element, it’s basically asking, Ok, did the person who is claiming this defense; did they take the most expressive element of the particular work to create their work? So, for example if you’re using a song, did you use a verbatim copying of the song and all the lyrics, or did you take the lyrics and did you changed them to make it a different type of work. So, when you look at the nature, they basically look at what are the most expressed elements of that work, and did you take those and manipulate them enough to make it your own or did you just take, for example, a verbatim copying of what was already there? Then, we have the amount and a substantiality of the portion used, meaning, if you’re taking the most powerful parts of the passage of a book or if you’re taking the meat of the chorus of a song or if you’re taking the most distinct portions of any one particular work. If you’re taking those things, how much of that did you use? For example, if you’re doing a parody, sometimes in a parody you need to use more so that the work is recognizable as a kind of making fun of the other work, so, you might be a little bit more and there might be a more substantial portion used than if you were reading a book and then deriving a play, for example. Then we have the actual affect on the market, which is the fourth element under a fair use defense. And that basically means was the market affected by that particular artist or person who’s asserting this defense. Was the market affected by it, the original market or the target market for that particular work, and will the actual person who created the work originally be exhausted from exploiting the commercial value of that work. So, for example, If you’re using a parody, there might be two different types of markets that you’re targeting. So, is the original market going to be affected by that parody? Maybe if it’s a different genre of music, maybe not. Maybe if the work is going to be a sculpture versus a piece of music, then it might be a little different. So, when you look at the elements, the courts are very clear to say that they determine whether a fair a use defense is available on a case by case basis. We do have cases in place where the court has come down on one way or another, but it really is determined by a case by case basis.
Damien Allen: Come down to the old adage of “a pictures worth a thousand words”, and Manny Garcia took this shot to be used within a news story, thereby, you know, The AP, I understand, makes money by marketing or off-selling its photographs that were taken from whatever event or whatever news story. But they’ve taken this picture; it went into the new story. Mr. Fairey found this picture and created a piece of artwork, not meaning a thousand words, just one, Hope. Are there any precedents, any cases that have come down the pipe that allow his defense for fair use to work this way? Has there been other situations where someone’s taking a news photo and then made a piece of artwork out of it?
Jo-Na Williams: I’m sure there are cases out there that do either of those. There’s actually two cases that I reference in my article that are pretty well-known and used frequently when dealing with copyright issues where the fair use defenses play. And one of those is the “Oh, Pretty Woman” case which is Campbell v. Acuff-Rose Music, and then we are the court actually determined that there was fair use because the work was efficiently transformative. And then, we also have the Harper & Row case, which is a little bit different where Time Magazine actually signed an agreement to have Gerald Ford right of first publication, which is a very important right, the right of first and prepublication to put that work out, and then they were intercepted by somebody getting an unabridged copying, and they posted verbatim words. So, in that particular case, there was no fair use available because it was just a verbatim copying of the work. So there are cases out there that have come down on either way on whether fair use is actually available in that particular case. As far as the, there are actually, though, two elements of Fairey’s case that are more prevalent than the other two if you look at all four in fair use. One of those being, which photo and the amount and substantiality of that portion used, and then we have another element which is the effects on the market for the actual artwork that he actually created and the results of the Manny Garcia photo. And if you look at the amount used, there’s been some discrepancies in terms of which photo was actually used because in the original complaint, Fairey claimed that he used a photo that was very different than the one the AP claimed that he used. The photo that he claimed that he used was one that had George Clooney in the shot. It also had a table in front of them, and it had various different elements. It was not a face close shot of Obama. And so, with that photo, if he wanted to say that he transformed that particular photo that was Garcia’s, as well, if he took that and manipulated it in a way to create the image that we currently know as what the whole poster is, if he used that, then he makes his case a lot stronger because he had to take people out of the photo, he had to turn Obama’s head, he had to add specific distinctive elements that are clearly original to his type of work and make his work recognizable, BUT more recently he claimed, which is why we have the new criminal case, he’s claiming that he actually used the photo that the AP asserted that he did, which is a close-on, head-on shot of President Obama, and it’s basically from the chest area up, and that makes his case slightly weaker if you’re going to look at how much of the original photo did you actually use to make the new piece of work that you created. The argument could be a little stronger for it being derivative versus transformative.
Damien Allen: And how much more is it going to muddy the waters in this case with Manny joining suit, basically, versus both of them?
Jo-Na Williams: In my opinion, I think that it could potentially muddy the waters, but I also wonder which case is going to come down first. Are they going to determine whether the rights lie with Fairey for work first and then Manny Garcia will go against the AP for arguing that he owned the rights versus them? I’m not sure, but I do know that it could potentially cause more complications for the AP if they have to go against not only Shepard Fairey, but then again against Garcia to determine the rights of the actually photo. But one thing that I didn’t mention is that with the other element of the affects on the market for the potential photo, Fairey actually asserts that, because of his contributions, and now that his piece of artwork that he used is now such a large and recognizable iconic image, that it actually increased the value of Manny Garcia’s photo because had he not taken the image and created the work that he did, that this would be just another AP or Manny Garcia owned image that just gets lost in the shuffle of Google. I mean, he does have a stronger case in that regard because now the photo is more recognizable, and actually Garcia had been able to exploit the profit from that photo slightly because he actually was able to start selling the photo via one of the art galleries in New York City. He’s been able to use the photo and sign copies and things like that. I don’t know, I can’t speak on what type of agreement that they have, but I mean, he may receive some type of monetary benefit from that, and he might be more recognizable as a photographer and made him more jobs from that. I mean, of course, these are the type of things that could be argued in the case, but we wouldn’t actually know if the reason why Manny Garcia got another photo job was because of his previous work or because of his infamous status as the person who created the photo that is now being used for this artwork and now being involved in such heavy litigation. But it’s something that could be argued. It definitely could be argued in court.
Damien Allen: And this argument becomes more circular by the minute by Shepard Fairey garnering monies from this image. Now, Manny Garcia may or may not be garnering monies from this image, and the AP is still wondering where’s my check.
Jo-Na Williams: As the minutes roll by and days and the months roll by, this case is more layered. And there are other people claiming, but I mean, it also shows that this was actually a work that was important to the AP, to Manny Garcia and to Shepard Fairey ultimately, and to the nation really, because this poster was the source of hope for many people, and I’ve heard people speak about it, and Shepard Fairey, he actually had a exhibit here in Boston, I’m based in Boston, he had an exhibit here at the Institute of Contemporary Art, and many people came to just see that particular photo, so, it has garnered some heavy recognition, and now it’s just a matter of who’s money and where.
Damien Allen: Do you believe this case, the finalization, the final outcome of this case is going to cause massive change in the way that we look at fair use?
Jo-Na Williams: Yes, I do. I think that it’s going to definitely, it’s going to be a heavier for the artist because this particular defense was used for the purpose of helping people and advancing the creativity within the market because there’s so many kinds of work out there, and if you don’t have the ability and the creative freedom to see things and be inspired by them and thereby creating different types of work as a result of them, then what kind of society are we living under? What is the purpose of copyright in the first place? So, I do think that since it has come out that Shepard Fairey has now admittedly said that he used a different work, he used the work that they actually asserted against him, because he used that and he lied about it, I feel, personally, that it does make it a little harder for people in the future to use this type of defense when they are coming up against someone who is claiming that they used their work and its user-generated content. But also, Google and YouTube and all of these different types of, Facebook and these different areas of media and marketing and things like that, it does get a little bit harder for the copyright law to catch up with the technology. So, it could be that as a result of this case, fair use is used differently, and it might be used more stringent, or because of the advances of technology, copyright law may become a little less stringent, and the rules might get relaxed a little bit considering the amount of information that’s out there. We don’t know, and that’s why it’s so difficult to make any conclusory statements on the issue, but it’s going to be interesting to watch.
Damien Allen: Indeed, and Judge Hellerstein has stated that the request for time has been denied, and he’s stated we will resolve this case by early spring, so we look forward to see the outcome of what this and what shakes down in the end. Thank you very much for joining us today, Jo-Na.
Jo-Na Williams: Thank you, thank you very much and I’ll be watching, I hope you are too.
Damien Allen: Indeed, we will be. You’ve been listening to Copyright Law Radio. My name is Damien. Everybody have a great afternoon.
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