In Defense of Fairey and Fair Use BY RACHAEL L. SHINOSKIE SUMMARY OF FAIREY LITIGATION TO DATE 1 April 2006, Associated Press ("AP") photographer Mannie Garcia took a photo- ‘graph of then-Senator Barack Obama while Obama attended a conference honor- 1 the work of George Clooney in Darfur! Nearly two years later, atist Shepard Fairey created his Obama “Hope” poster? After an informal accusation of copyright infringement by the AP, Faitey filed for declaratory judgment in the U.S. District Court for the Southern District of New York in February 2009. Fairey initially claimed that he used a photo of Clooney and Obama together 2s his source material and that his use was entitled toa declaratory judgment based on fair use.’ The AP responded, disputing Fairey’s claim of fair use and countersuing for copyright infringement, asserting that Fairey's poster was no more than copying and the creation of a derivative work.‘ The AP also contested that Fairey used an up-close headshot of Obama as his reference material rather than the photo of Obama with Clooney that he claimed to have used.* The plot thickened when, in Gctober 2009, Fairey admitted that he had, infact, used the Obama photo the AP claimed was used. While Fairey insists this was a*mistake,” the AP has alleged spoliation and fabrication of evidence.° U.S. District Court Judge Alvin K. Hellerstein has decided that the eopyright infringement case will be tried on the merits, reserving the sanctions motions pertaining to the spoliation and fabrication allegations to be determined later.” With this decision, Judge Hellerstein has sec the stage for what may very well be a landmark decision in the fair use landscape. ESTABLISHING COPYRIGHT INFRINGEMENT ‘A plaintiff establishes a prima facie case for copyright infringement by demonstrat- ing ownership of a valid copyright and a copying of the work by the defendant’ The clement of copying requires that the plaintiff establish actual copying by director in- direct evidence and that the copying amounts to improper appropriation.” Before con tinuing, icis important to note that in the case at issue, there is a dispute as to whether the photographer, Garcia, or the AP owns the copyright. However, itis not disputed thata valid copyright exists and that either Garcia or the AP owns it. Moteover, Fairey hhas admitted to utilizing the headshot of Obama, taken by Garcia and published by the AP, as reference material for his Obama poster. Thus, a prima facie case for copyright infringement will be established once the copyright ownership issue is settled. Fairey asserts fair use as his defense. ARGUMENT IN FAVOR OF FAIREY—LONG LIVE FAIR USE! Fair Use and Its Elements “rom the infancy of copyright protection, some opportunity for fair use of copyrighted ‘materials has been thought necessary to full copyright’ very purpose, ‘To promote the Progress of Science and useful Ars." As Judge Leval remarked in his landmark law review article on the subject, “excessively broad protection would stifle, rather than ad- ‘vance, the [law] objective.” Therefore, fair use should be perceived as an “integral part ‘of copyright, whose observance is necessary to achieve the objectives of that lav." To date, the U.S. Supreme Court has issued two major opinions regarding fai use: Harper & Row, Publishers, Inc. v. Nation Enterprises and Campbell v. Acuff-Rose Music, Inc. These cases address the absolute extremes of fair wre—Harper & Row addresses the verbatim copying ofa portion of a nonfictional work,” while in Campbell, the defendant took a small part, but arguably the heart, of a popular song and used it for pparodic purposes." These two eases, while both landmarks in their own ways, have left many unanswered questions in the fair use landscape and a remarkable amount ‘of room for lower courts to further muddy already complicated waters. Fairey v. The Associated Pres, what has become known as the Obama Hope case sits squarely in this maelstrom. It too has the possibility of becoming a landmark fair use decision, as Fairey asserts fair use as his defense against appropriation. 16 Entertainment and Sports Lawyer / Volume 28, Number 1 / Spring 2010 ‘The Copyright Act of 1976 codified the fair use doctrine, deseribing four non- exclusive factors that must be considered in determining fair use. In determining whether the use of a work is fir, the fac- tors to be consicered shall include: (1) the purpose and character of the use, including whether such use is of commercial nature oF is for nonprofit educational purposes; (2) the nature of the copyrighted work: (3) the amount and substantality of the portion used in relation to the copyrighted work asa whole; and (4) the effec of the use upon the ‘potential market for oF vale ofthe copyrighted work." “The ultimate test of fair use is whether the copyright law's goal of ‘pro moting the Progress of Science and useful Arts’ would be better served by allowing the use than by preventing it.”"" FIRST FACTOR “The fist factor inthe fair use inquiry, as statutorily provided, is “the purpose and character ofthe we, including whether such use is ofa commercial nature ori for nonprofit educational purposes." Is the Work Trensformative? Post Campbel, it has become increas ingly clear that she heart of the fair use inquiry lies in this fist stacutory factor, the determination of the purpose and. character of the use. The Campbell ‘Court, drawing on Justice Story’ refer- ‘ence in Folsom v, Marsh, explained: ‘The central purpose ofthis investigation Isto see, in Jusice Story’s words, wheth- lerthe new werk merely “supersedes the objects” ofthe original creation, ‘or instead adds something new, with a further purpose or different character, altering the fis with new expression, meaning or message. i other words, whether and to what extent the new work is transformative.” Although such transformative use is not absolutely nec sary fora finding of fair se, the goal ‘of copyright, to promote science and the ars, is generally fathered by the creation of transformative works. Such transformative works thus lie at the heart ofthe far se doctrines guarantee of breathing space.“The use ofthe original work as ra material “in the creation of new informa- tion, new aesthetics, new insights and understandings—this isthe very type of sctvity that the fair use doetrine intends to protect for the enrichment of society." Fairey does not argue that his use was transformative solely because Garcia's work isa photograph and his isa graphic illustration. Indeed, courts have declined tofind transformative use when “the defendant has done no more than find 2 new way to exploit the creative virtues of the original work." However, Fairey does assert that his purposes in using the photo- araph taken by Garcia ae acutely diferent from Garcia's gols in creating it Indeed, Fatey’s position in the ‘Obama cas, fom a fair use analysis standpoint, is synonymous with the artist Jeff Koons’ position in Blanc v Koons." In Blanch, a fashion photogea- pher brought a copyright inftingement action against visual artist Koons after Koons used her copyrighted photo- graph in a collage painting. Koons saw Blanch’s image in Allure magazine. He scanned the image and incorporated an altered version of i into his eollage “Niagra.” Koons objective was “not to repackage Blanch's ‘Silk Sandals’ bur to employ tin the creation of new information, new aesthetics, new in- sights and understandings.” The court in Blanch noted that when the copy- righted work is used as “raw material” in development of specific communicative ‘or ereative goals, the use is transfor. mative. The court determined that the distinctly different objectives that Blanch had in creating, and Koons had in using, “Sill Sandals” confirmed the transformative nature ofthe use.” Similarly, Fairey’ objectives in his use ofthe Obama photograph are distinctly diferent from Garcia’ in taking the photograph. Garcia's purpose asa photo journalist hired by the AP was clearly to document a newsworthy event. Fairey’s purpose on the other hand, was to in- spite, convince, and convey the power of Obama’ ideals, as well as his potential a, a leader, through graphic metaphor." “The test for whether Fairey’ use of che Obama image i transformative is whether it “merely supersedes the objects ofthe orignal creation, or instead adds something new, with a further purpose or different character, altering the frst with 9 new expression, meaning, or message.” The court in Blanch noted that “the test almost perfectly” described Koons’ adaptation of “Silk Sandals,” with changes ofits colors the background against which i is portrayed, the medium, the sive ofthe objects pictured, the cect’ details and, crucially their eniely different purpose and meaning... We therefore conclude thatthe use in question was transformative. “There can be no doubt that Fairey’ use of the Obama image is similarly transforma- tive. Fairey replaced the real colors with an evocatively patriotic blue and red color scheme; he completely eliminated the blurry background of the original image; he simpli fied al the details of Obama's face and renderei the portrait in a highly stylized manner; and crucially, he infused his poster with an entely different purpose and meaning than that ofthe phorograph. The purpose ofthe photograph was to convey a newsworthy event and was taken in April 2006, long before Ohama announced his candidacy for pres ident. Farey’s poster, however, was intended to inspire and convey Obama’ presidential leadership potential. The success of aire’s intent is evidenced by the evolution of his poster into a symbol of the campaign and of hepe. On the other hand, and notably, the photograph, which was availabe for nearly two years prior tothe poster, never became such a symbol. Asa result, it is clear that Fairey’ use ofthe image is transformative. Purpose: Money Really Isn't Everything Tt isundisputed that Fairey made some prof from his Obama images. Its also undis- puted whether the we in question is ofa commercial nature, which isan explicit part of the first fair use factor. However, the Supreme Court in Campbell rejected the concept that the commercial nature ofa use could alone bea dispositive consideration. The commercial nature ofthe secondary work is merely a subfactor ofthe fis fator. “The ‘more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against finding of fair use."® Finding a work substan tially transformative propery allows the secondary commercial nature of the work to be discounted.” As discussed above, Fairey’ use is highly transformative and, as such, its secondary commercial nature should be deemed insignificant FAIREY SIGNIFICANTLY ALTERED THE ORIGINAL WORK, AND BY DOING SO IMBUED IT WITH A DIFFERENT CHARACTER AND TRANSFORMATIVE PURPOSE. Moreover, it cannot be said that Fairey’ economic gains from his Obama images were “to the exchusion of broader public bene‘ts.”™ “Notwithstanding the fact that art- ists are sometimes paid... the public exhibition of artis widely and we think property considered to ‘have value that benefits the broader public interest.””” Fairey’strans- formative and artistic use of Garcia and/or the AP's image published by the AP clearly benefited the public as evidenced by Democrats’ and disenfranchised Republicans’ enthusiastic embracing the work asa symbol of the Obama campaign, Based on the foregoing, Fairey’s us is substantially transformative. As such, the secondary commercial natute of the work has little to no bearing on the analysis ofthe first factor and the weight of the first factor in Fairey’s favor. SECOND FACTOR “[TThe nature of the copyrighted work” is the second statutory factor Ie requires the “recognition that some works ae closer tothe coe of intended copyright protection than Spring 2010 / Volume 28, Number 1 / Entertainment and Sports Lawyer 17‘others, with the consequence that fair use is more difficult to establish when the former ‘works are copied”! ‘Two types of distinctions as to the nature of the copyrighted work have emerged that have figured in the decisions evaluating the second factor: (1) whether the work is expresive or ‘reative, suc as a work of tion, or more factual, with a greater leeway being allowed to claim offic use where the work is factual or informational, and (2) whether the work is published or unpublished, with che scope for fair use involving unpublished works being considerably narower* ‘Asnoted, Garcia’ photograph was published. Therefore, under the second ofthe two considerations, that fact favors Fairey ‘Regarding the frst consideration, despite the AP's contentions to the contrary, Garcias photograph is more factual than creative. The AP contends that the photo is creative because of Garcia’ selection ofthat particular moment to capture the president's ‘expression, the type of lens and the light for optimal impact, and the total composition of the photograph. In truth, though, Garcia had no creative control in directing Obama's facial expression; he just happened to beat the right place and time with a camera, Not «did Garcia have any control over the lighting at the press conference. Further, in an aricle published in the New York Times, Garcia stressed that he is not an artist, thereby calling into question the argument about his composition of the photograph being suf- ficiently creative. “I want to avoid calling myself an artistic photographer... .™* COPIES OF THE ORIGINAL PHOTO ARE NOW SOLD IN THE DANZIGER GALLERY—SUCH WAS NOT THE CASE PRIOR TO THE POPULARITY OF FAIREY’S POSTER. While the photograph as a whole is sufciently creative to receive copyright protec- tion, the image simply depicts a newsworthy event, and thus its general publication. throughout the United States favors fair use." Ifishould be decided by the court that Garcia’ photo possess the “creative nature of mist images” and, a such, the court weighs that determination in the favor of the copy- right holder, “the second factor may be of limited usefulness where the creative work of aris being used fora transformative purpose.” As the court noted in Blanch, the second fair use factor has limite weight in such an analysis because Fairey used Garcia’ work in a transfor. mative manner. As such, the court would als find the second factor in Fairey’ favor. THIRD FACTOR “The third statutory factor bearing on fair use determination is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The transformative purpose of Fairey’s use and the amount and substantiality of the use must be “explored, and the results weighed together."* The question is whether the amount and value ofthe original work used are reasonable in relation to Fairey’ posters trans- formative purpose.” ‘As noted above, Fairey’s purpose in using Garcia's image was to create a graphic image thar would inspire and convey Obama’ leadership qualities. The question is whether, ‘once he chose to copy Garcia's work, he did so excessively —was the use “reasonable in ‘elation to the purpose ofthe copying.”® Weighing most heavily against Fairey is the fact that his poster is obviously based on Garcia's image—a side-by-side comparison makes 18 Entertainment and Sports Lawyer / Volume 28, Number 1 / Spring 2010 it clear thae the positioning of Obama's hhead, the direction of his gaze, and the ‘general scale ofthe composition ae all the same. However, “[dJepending on the ‘purpose, using a substantial portion of a work, or even the whole thing, may be permissible.” Fairey has admitted to bas {ng his poster or the image taken by Gar- cia and published by the AP, but he did not ‘simply copy the work verbatim with litle added or changed.” As discussed above, Fairey sinificanely altered the original work, and by doing so imbued it with a differen character and transforma tive purpose. Therefore, the third factor should weigh in Fairey’ favor. FOURTH FACTOR ‘The final statutory factor is “the effect ‘of the use upon the potential market for ‘or value of the copyrighted work." “In ‘considering the fourth factor, our concem, isnot whether the secondary use sup- presses or even destroys the market forthe ‘original work or its potential derivatives, bout whether the secondary use usurs the market of the orginal work." ‘The AP contendl that Fairey’s un- authorized use o the Obama photo has caused substantial impairment tothe potential market for the orginal photo, ‘namely the AP& ability to license its use..." The ruth, however is that not only has Faireys work not usurped the ‘market forthe orginal, but rather it has increased it. Copies ofthe original photo are now sold in the Danziger Gallery—such ‘was not the ease prior to the popularity cof Fairey poster A stylized posters not a substitution fo realistic photograph, Moreover, while Fairey failure to license the work from the AP does prevent the AP from collecting from Fairey use, iin ‘no way prevents the AP from licensing the work to others “By definition, every fair use involves some los of royalty revere because the secondary user has not paid royalties” Because Fairey’ work uses the image publishedby the AP for transforma tive purposes, Firey’s poster cannot serve asa substitute fer the original photograph the poster i enjoyed fora different purpose. ‘Therefore, Fairey’s work is unlikely to serve asa market substitute for the Obama pho- tograph and cause market harm. Derivative Works (Courts must consider not only harm 10 the primary market for the original work,tut tw “the curtent und potential market for derivative works. Posie derivative ‘wes “inchude only those that creators of ‘original works would én general develop oF license athers to develop." “The AP asserts that Fairey’ poster i derivative work hazed on the Obama © However, a work ist lerivative simply because itis based on # preexisting work. The law in the Second Cireuit “has recognized that ‘even when cane work is based upon another, ifthe secondary work siiciently transforms the expression ofthe original wotk such that the two works cease to be substantially similar, then the secondary work is not a derivative work and, for that matte, does ‘not infringe the copyright of the original work”! In Wamer Bros. Entereaiument Thc. x. RDR Books, the court held that a lexicon based on the Harry Poeter books ‘was noc aderivanive work because the lexicon di not recast the material into nother medium to retell the Harry Poter story, but rather gave the copyrighted material another purpose. Subsequenty, the lexi- cot ho longer represented the original works of authorship. The court noted that “uthis distinction ts riticl en the difference between derivative works, which ate infrieg- ings and works of fair we, which are permissible." Therefore, transformative works, by their very nature, are not derivative; a derivative work may give an original a new mode ‘of presentation, but it does not have transformative purposes Faitey’s poster is similar to the lexicon in the Harry Potter case. While itis based ‘on the Obsma photograph, Fairey’s image gives the copyrighted material a new pur- pose and isa transformative work. As such, the Faitey poster is not a derivative wok Because its not a derivative work, if Faireys work doss compete with the original photograph, the competition # permissible because, as noted by the court in Warmer Bros. competition by a ponderivative work ts permissible. Additional, that court observed chat “cJhe market for reference guides does not become derivative simply becatse the copyright holder seeks to produce or license one.” Similarly, the market for Obama-related artwork does not become derivative simply because the AP seeks tw license its photoxraphs for such works. Based on the foregoing, the fourth factor favors Fairey. Baal Faith In light of the recent revelation about the source of Fitey’s kage, where Faltey insists that he made a “mistake” in identifying the photo he wed ax reference, and while the AP calls Fairey’s admission a fabrication and an attempr to destroy evidence, there is plenty Of discasion of had faith in this case Additionally the AP alleges that Fairey acted in bad faith because, among other things, he failed to request license to use the Obama Spring 2010 / Volume 28, Number 1/ Entertainment and Sports Lawyer 197photograph, though he has requested at Teast one license for a similar purpose from other photographers in the past” In terms of the fabrication and spolia- tion issues, US. District Court Judge Al- vvin K. Hellerstein called Fairey’s admitted ‘wrongdoing a “serious transgression,” but he also stated that he wanted “this case to bbe decided on the merits."* As mentioned above, Judge Hellerstein reserved sanc- tions motions until the copyright inringe- ment case is determined. ‘As for Fairey’ failure to seck the AP's ‘permission to use the Ohama image, the court in Blanch noted that we are aware ‘of no controlling authority tothe effect thatthe failure to seek permission for copy ing in itself, constitutes bad faith.” And as noted by the Campbell Cour, “ifthe use is otherwise fair, then no permission need be sought or granted.” In light of that statement by the Supreme Court it cannot be said that Fairey acted in bad faith by not seek- ing or obtaining permission to use the ‘Obama image ifthe court finds that his use of the photo is CONCLUSION “Having examined the statutory factors and balanced them with the purposes of ‘copyright, itis evident that Faiey's use of the Ohama image was fair Fairey’ use was highly transformative; he took an otherwise ‘unmemorable photograph of then-Senator (Obama asa senator and transformed ic into an illustration that inspired a nation and became the symbol of a historic presiden- tial campaign. Copyright: goal of pro- mong the Progress of Science and useful Ars” far better served by allowing Fairey’ use than by preventing it Rachael L. Shines an asocete at Mons Pach .& Pad. She can be reached at rachel shinshie® gral com o at shinoskicmplaw com. ENDNOTES 1 Hope Viner Sanborn, Hope for Copyright, ABA J, May 2008, hp/rarabajoural com! magainelbope for -copyihtpene 7. Associated Press, Tele of Key Evers one CCommens by Shepard Fairey Abou the Obama Hope Power, apdfwmapongiprighs/document Tine line_of Events 20 Entertainment and Sports Lawyer / Volume 28, Number 1 / Spring 2010 3, JoNa Willams, The New Symbol of Hope’ Jor Fait Use: Shepacl Futeyv The Asociated Pres, 21 Lawton 55 (Sepe Oke 200) 4 Sambo supra note 1 5. Fast Amended Answer, Afimative Defenses sand Counterclaim at 1, Shepard Fairey and Obey Giant Ar nev. The Asxciatd Press, No 09 01128(AKH) (SDN. Mae 11, 2003) 6. AP Pres Relense, AP Fes Amendol Co tern Obama Hoe Poser Case: Cains Fare 1s Purposes Deceiving, Oct. 20, 2009, hepewn: sponvpags/abouthpreseleasspe_ 1020098 7 Hille aie, Judge: “Hope” Arist Can utc Lawyers AP Sut, Now: 10, 2909, hep theinsier com. .30487 LL Judge HOPE arti, ‘an_swritch Lawyers n_AP. st 8 Feit Pubs, Inc. Rul Tel Serv. Co, 499 US. 340, 361 (1991), 9, Case Rock Entm, Ine. v Carol Pubs Group, Ine, 150 Fd 132, 137 (2d Ci 1998). 10. Campbell v. Aca Rose Masi Inc, 51OUS. 569,575 (994) (quing US. Cows 1,888) 1 PlereN. Leval, Tne a Fair Use Stndad, 103 Han LR. 1105, 1108 (1990) 12H ae 1107 13.471 US. 539 (1985), 14 SIOUS. 569 15.471 US. 539, 16.5100 Group, Ines, 150 E3132, 141 (2d Ci 1998) (quoting US, Con. art 1 § 8h 8,and Aria lest ne. Palmer, 920 241067, 1077 (2d Cie 192) (alteration incorporated). 19.17USC § 1070), 20. Blanch « Koons, 467 Fd 244, 251 (24 Cie 2006). 21.9 F Cas 342, 48 (CCD. Mass. 1841) (No 490i). 22, Camptell: Acaf-Rove Masi, In 510 US. 569, 579 (1994). 23. Case Rock, 150 Fd a 142 (quoting Leva, supra note Hat U1. 24. Blanch, 467 FM at 252 aM. 26 19248, 7M, a 253 (quoting Leva, supra noe 1, at mn. 2B. Id 9 253 wi. 530, Amended Complain for Declaratory Ju ment and Injuncive Relief at 5, Shep Fairey and Obey Giant Art, Ine. The Associated Pres, [No,09-0112)(AKH) (SDNY. Oct. 16,2009). 51. Camptell» Acuff Rowe Msi, Ine, 510 US. 568,579 (1998), 32, Blanch v Koons, 467 FS 244, 253 (2d Cie 2006) 33. Fist Amended Answer, Affemative De- feoses nd Coutercains, ur ne 5, at 10. 34.17 USC. § 1070). 35. Campbell 510 US. a 584 36.1 ot 579, 37 Blanch, 467 Fd 254. 38 Id. (quoting Am. Geophysical Union v “exact ne, 60 F34913, 921-22 (24 Cit. 1994). 39, Blanch Koa, 467 244,253 (24 Ci 2006) (qucing Arm. Gopal Uni, Ot 922) 4@.17USC. $1070). 41. Campbell v Ac Rose Muse Ine, 510 US. 569,586 (1994. 42. Howano B. Sima, Tit Law oF Cort ioe §1552 (200), 43. Fist Amend Answer, Afirmative De- Senses ane Counterdains, spa note 3, at 1. 4, Noam Cohen, Viewing Journalism sa Work of A NY. Ties, Mar 23, 2009, hap. nytimes.com 200910324 arsdesign24photo heal 45, Blanch v Koo, 396 Supp, 24476, 481 (SDNY. 2005). 46. Bill Graham Archives. Doing Kindersley Lad, 448 Fd 605,612 (24 Ci. 2006 42. 17USC. 41070). 48. Wamer Bros Ene In. ¥ RDR Books, SIS E Supp. 24 513,546 (SDNY. 2008) quoting CCapbellv.Acuff-Rose Masi, Inc, 51OUS. 56%, 577-78 (19%4)). BU. 50. Blanch v Kons, 467 F34244, 257 (2d Ce 2006) quoting Capbel, 510 US. a 38). 51, Wormer Bro, 315 F Supp. 2d a 548, 52. Mate! Ine.» Walking Mountain Pros, S533 12, 805 (eh Cir 2003). SB.1TUSC.§ 1074). 54, NXIVM Cusp: Res Inst, 364 E30 471, 481-82 24 Ce 200) 58st Amended Answer, Afirmative De- enses aed Counteraims sup note 8, a8 8. 56, Willan, sera noe 3, a 58 57 Leva, sainore 1, at 124 58, Twin Peaks Prods. Inc - Pubs In, Ld, {996 Fd 1336, 1337 (24 Ci. 193). 59. Capel. AcutRose Muse, Ine, 510 US. 569,592 (1994) (60, Fie Amended! Answer, Atmacive De- ferses and Counerelaims supra note 5 at 12 ‘61. Warmer Br. Ent’ Ine RDR Boks, 515 Supp. 24 51,538 n.l7 (SDNY, 2008) (quoting Well-Mate Toy Mig Cop v. Goff nt (Corp 354 F34 11,117 (2d Ci. 2003) 62 Ho 539. 63.Ud a8 (64, Twin Peaks Prod Inc. «Pubs Ine, Le, 996 F241336, 1375-16 (24 Ci 1993) (65, Werner Brot 515 Sopp, 2. 550 6, AP Press Release, surat note 6. (67. Fine Amended Answer, Afmacive De Aeoses and Counterdains, pra note 5, at 8,45. (66. Hale sia note 7. 169. AP Staterent, AP Plseshe Cort Con «es Splaon ad Fabrication of Evidence Serious, Nov. 1, 2009. 10, Blanch ¥ Keos, 467 E3244, 256 (24 Cis 2006). 71, Camptell. AcultRose Mac Ine. 510 US. 569,585 9.181994) 12.US.Consr, ar 1 § 8,1: 8.