When it goes Fairey, Fairey wrong

Fair use is a defense, but it isn’t always a slam dunk winning defense.  Shepard Fairey is a graphic artist and known for street art.  You may not recognize his name, but you likely recognize at least one piece of his work:  The Obama HOPE poster.

The photo is instantly recognizable and arguably iconic.  It also was based on a photograph owned by the Associated Press (the “AP”).  The AP is “an independent, not-for-profit news cooperative” and provides “content and services to help engage audiences worldwide, working with companies of all types, from broadcasters to brands.”  That includes providing photos to newspapers around the world (and likely in your city).  In April 2006, Mannie Garcia, a professional photojournalist, was working for the AP and took a photo of then senator, Barack Obama.

Wanting to create a poster to support Obama’s presidential candidacy, Fairey used the Google Images search engine to hunt for publicly available photographic portraits of Obama. A search for images of “Obama” or “Barack Obama” generated lots and lots of “thumbnail” images showing the results of his search.   Fairey chose Garcia’s photo and began to play with it in Photoshop.*  The final result is the poster we all recognize.  He then sold some of the posters and gave many away at campaign events or donated them to campaign workers.  In addition, he granted a free license to the organization, Sticker Robot, to produce and distribute, at cost, large numbers of stickers and granted free, nonexclusive licenses to other organizations to make and distribute the poster as they were supporting Obama.  Don’t feel too bad for Fairey.  He made money by selling merchandise, like t-shirts, with the image and creating murals and paintings of it, as well.

So where there is money being made, there is a chance for a lawsuit.  Yup, after quite a bit of demands and negotiations came to nothing, the AP sued Fairey.  His main defense was fair use.  Fairey argued that he “transformed” the AP photo.  One way a work can be deemed “transformative” is where the purpose of the second “transformed” work is different from the purpose of the original work. Fairey argued that this was they case for his poster.  After all, Garcia’s aim had been to take a realistic portrait of Obama for news purposes, and Garcia even testified that he had no intention to promote Obama’s candidacy. By contrast, Fairey’s primary purpose in creating the poster was to promote Obama’s candidacy for president.  In addition, Fairey argued that he made many changes to the photo such that all that was left of the original photograph wasn’t really protected by copyright anymore.  In fact, what he made was fundamentally different from the original and because of his changes, people saw it in a completely different light.

Another factor weighed is the extent to which the defendant’s activity, if deemed fair, would adversely affect the market for the copyrighted work at issue in the case.  Fairey argued that no one wanting the original photo would have purchased his poster instead.  They clearly did not act as substitutes for each other.  Also, he argued that because he transformed the work, he wasn’t impairing the “potential market” for the copyrighted work either.

Unsurprisingly, the AP disagreed with those contentions.  Rather, they argued that he had acted in bad faith, the poster project was highly commercial, and his use was not transformative.  He removed the copyright notice, did not give any credit to the source of the original photo and did not identify any pre-existing material not owned by the applicant when Fairey applied for his own copyright registration on the poster.  He made plenty money (he could have made even more but chose not to do so with the posters themselves).  Finally, his intent for the poster was not truly “transformative.”  It wasn’t a parody or commentary on the photo.  Rather, both the poster and the photo tried to capture the essence of Obama; Fairey just used more Photoshop than Garcia used to get there.

After a long, arduous, and expensive pre-trial period, the parties settled right before a three-week trial was to begin.  Unsurprisingly, the financial terms were confidential.  So we don’t actually know what the court would have found.  Was it transformative?  We don’t know for sure, but we do know that Fairey and the AP spent a lot of time and money arguing over a cut and pasted photo that was used without permission.

If you want a lot more detail and analysis, I highly recommend this piece by the Harvard Journal of Law and Technology.  It has exhibits and everything!


*There’s actually more drama there about how and when he picked the photo. And, more importantly, how and when he told others, including the court, which photo he picked.  He found out that if you lie to the court, you can be found criminally liable for that.