The Moral and Legal Implications of Fair Use by Alexander Saunders

Final Draft

The Moral and Legal Implications of Fair Use

In an effort to protect the work of artists, the Fair Use Act was constructed to reward the efforts of the original artist, appreciate the work of other artists using the original work, and to compensate the original artist if their work is used. A recent legal dispute has challenged the issues of fair use.

The Copyright Act of 1976, 17 U.S.C. § 106 states that:
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. (Cornell)”

Thirty-three years later, early 2009, Associated Press threatened to file a lawsuit against street artist Shepard Fairey, asking to share any profits from his Obama “Hope” posters that allegedly uses one of their images (Itzkoff). Shortly after, the Stanford Law School’s Fair Use project filed their own lawsuit stating that Shepard Fairey is protected under the aforementioned Fair Use Act, especially after Fairey agreed to pay the initial licensing fee (Fairey). With the two suits currently active, many online blogs and media sources are ablaze over the issue of which side the Fair Use protects.

A close examination of the Associated Press’s photograph (Image 1) from 2006 and Shepard Fairey’s rendering of the photo (Image 2) must be examined and prior historical marks on this issue must be reviewed as well to correctly dispute these two arguments to determine if artist Shepard Fairey is on the protected side of the Fair Use Act, if the Fair Use Act is biased depending on media, and on the strength of interpretation that should be allowed for such Act.

[Image of Barack Obama & George Cloony seated NOT SHOWN] [Stylized version of Barack Obama taken from Image 1 NOT SHOWN]

As the Fair Use is defined, it could be argued that Fairey used a substantial amount of the original work and that the image was for monetary gain. But what is forgotten by many is that the new image manipulates an ordinary stock photograph in a manner to persuade voters in a “nonprofit educational purpose” (Cornell). It is also forgotten that most of the revenue from this image—via stickers, shirts, etc.—was used by Fairey to create more of the “Hope” posters and other “Hope” items. What other historical images have been transformed in a similar manner?

It is common knowledge that Andy Warhol used an image of Marilyn Monroe from her film Niagara to create the Marilyn Diptych (Artz) for no further purpose than to continue his commercial success. Fairey altered the image he found of Barack Obama to create an image for the sake of promoting a man to win the presidential office and, as far as it is known, not for the sake of personal profits or fame (Fairey interview). In fact, Fairey even agreed to pay for the initial use of the photograph when he discovered that it was copyrighted (Fairey). With such a dramatic shift of intention, why is it that the seemingly benevolent rendering of Barack Obama receives so much attention for its use of an image when the depiction of Monroe received none? It would seem obvious that neither work is conclusively at fault. Both Warhol and Fairey used their images in a transformative method that completely differentiates from the original work. With Warhol, a photograph from a movie advertisement evolves into an eerie posthumous icon of immortality (Artz) and with Fairey, a stock photograph evolves into an iconic political message. The only difference, of course, is that Associated Press is suing Fairey in a new era with stronger copyright laws.

It goes with little argument that Fairey used Associated Press photographer Garcia’s 2006 image of George Clooney and Barack Obama after he found inspiration to create this poster. Fairey cropped the image to exclude Clooney and proceeded to tilt the image of Barack Obama. The resulting Barack Obama “Hope” poster is a transformative piece of art that is very different from the original photograph that had no further meaning than the moment it captured: Barack Obama attending George Clooney’s National Press Club discussion concerning Darfur. What was once a stock photograph for news syndicates interested in George Clooney’s press conference now became another iconic image created by Fairey. Before the Associated Press came out against Fairey, their photo of Clooney and Obama was hardly memorable and hardly as famous as it is now. Because of such, the fourth determining factor of the Fair Use must be questioned: how was the potential market affected by Fairey’s work? The “Hope” poster had and will continue to have a tremendous impact on the historical worth and marketability of the original photo, of the Democratic National Party, and of Barack Obama.

Both altered images (Marilyn and “Hope”) will maintain their statuses with American pop culture because of their significance at the time they came out. However, it cannot be argued that the original photographs that they derive from will maintain the same level of iconic prestige. What Warhol and Fairey did to the images they found were impactful, stylistically repetitive, and meaningful. Due to this evidence alone, the fourth requirement of the Fair Use Act must be further reviewed: “the effect of the use”. What effect and impact did these images make commercially, on society, in media, etc.? For one, the Marilyn Diptych was ranked the third most influential art piece out of 500 selected pieces by one survey (Higgins). And some would argue that Fairey’s work was the icon behind the inspirational speeches and images that truly convinced America that Obama was the best “hope” for the future of the nation. In addition to this, the poster enhanced the popularity of Associated Press’s work while the Monroe Diptych enhanced the ever-popular image of a late celebrity. To this effect, it is almost surprising that the strongest Fairey advocates are not requesting the Associated Press to pay compensation to Fairey for the enormous advertisement and promotion.

With all of these implications aside, there is one bias to this thesis: Warhol and Fairey indisputably used images taken by other photographers to assist them with their work. Garcia and the Associated Press will never receive compensation for their work if the Fair Use Act does not hold. The original artists who are attempting to make their own profits deserve compensation, if not acknowledgment. In the music industry, it is common to see musicians cover other musician’s work. Bob Dylan has been covered by bands as famous as the Rolling Stones (Like a Rolling Stone) and as underground as The Slackers (I Shall Be Released). Before the Fair Use Act legislation of 1976 and before major record labels became the dominating factor of bands, a bond was prevalent in the music business. Bands like the Rolling Stones or The Jimi Hendrix Experience could contact musicians such as Bob Dylan directly and petition their request to cover (or as many would put it “honor”) their music by placing it in their albums. Now the traditional method to cover another musician’s work includes contacting the record label they belong to. It is revolting that music has become a legal matter over an honor system, but either way the original artist still gets compensation for their work. Either way it is argued, the Fair Use Act is still the best available legal document protecting both the original artist and the secondary artist. Only the legal interpretation of such should be argued.

The moral claim that Shepard Fairey reproduced a photograph in a manner that does not harm or infringe on the rights of the original artist can be widely accepted by fans and non fans. His iconic “Hope” poster was created in mind to help place an image behind Obama’s unprecedented grassroots movement. It was also created without any intention of proceeds for personal gains. The legal claim, however, will strongly imply that Fairey created this image for profit—regardless of how the revenue was allocated—and that the Associated Press should be rewarded some revenue for providing the initial image. An analogous comparison will again show that original artist (as mentioned, musicians) are in some way compensated for their original work, typically monetarily. And such method has proven itself. For example, even though Rage Against the Machine’s aggressive rap rock rendition of Bob Dylan’s Maggie’s Farm sounds completely unique from the original work, credit still must be rewarded back to the original artist just as Shepard Fairey’s work ought to.

It is almost a shame that Fairey is in a legal dispute with Associated Press and many are optimistic that he will win. Fairey is a street artist that simply intended to make stickers of a politician he supports. The commercial works he has been involved with are very specific commissions that he did in earnest. His noncommercial works of art, as the Obama “Hope” poster was intended to be, are simply non-profit political statements and/ or parody propaganda ads. As it would turn out, the one piece of graffiti he asked permission to post and that he did not intend as political satire consequentially became the one work that resulted in a lawsuit (of course, he has been arrested numerous times for illegal graffiti, but such stories are not pertinent to this issue). Intentional or not, questions still remain: How strictly should the Fair Use Act be interpreted? At what point does an artist legally have the right to manipulate an original work and call it their own?

If the work is satirical enough, the secondary work is protected by the first amendment. The new work is considered to be so outlandishly ridiculous that the average citizen will interpret it amusingly. But with that said, when is the work considered libelous? Comedians tend to be heavily alleviated from many accusations of copyright infringement and libelous content because their work is visually and/or audibly apparent. Their work is in such a nature that it is accepted to not be plagiaristic of an original work, but a humorous depiction.

The Associated Press photographer who took the image in dispute, Mannie Garcia, was “surprised” to learn that the image Fairey used was in fact his own (Garcia). This goes back to the concept that Fairey’s work on Garcia’s AP image was clearly transformative. Ironically enough, Garcia was commissioned that day to take photographs of George Clooney’s conference on Darfur, not on either senator present: Obama or Brownback (Garcia). In the interview, photographer Garcia essentially clarifies the claim that Fairey’s rendition of the photograph is completely transformative of the original but, says Garcia, “simply because it is on the internet, it does not belong to [Fairey]”. Even if this statement is true, the third factor for Fair Use can still be questioned due to the fact that the new work is unrecognizable to the original artist. It can also be argued with the same factor that the implications and meanings behind the new image are separate enough from Garcia’s original work to be applicable for Fair Use.

Though the photograph of Barack Obama does not belong to Fairey, his interpretation of the image that will be on the walls of the Smithsonian, in the history books, and in the minds of many Americans will forever be attached to him. Unfortunately, the original image cannot have that comfort because a simple search for “obama clooney darfur 2006” on www.google.com (as of March 14, 2009) will reveal Garcia’s photograph of Obama on thousands of separate web pages. At least on the first two pages of image search, every one of his images has “2006 Mannie Garcia/ The Associated Press” with a copyright logo. If the same is true when Fairey initially found the image, it should go without saying that he legally owes compensation to not just Associated Press but Garcia as well. Had Fairey been a typical Photoshop wizard in high school with the same campaign, the image probably would not have made such a commercial success. Any profits from it would be too unsubstantial for Associated Press to dispute. But this image was created by Shepard Fairey, a man whose parody propaganda and recognizable artistic style is well known in many major cities throughout the United States. Through repetition, Fairey has made his work known. And when he came out with the Obama campaign, it received massive attention. Massive attention, in this regard, results in a large demand for the product of the icon Fairey constructed. And so the dispute arises.

Fairey more than likely made a significant profit from his work, an amount of which is unknown. His image was used by nearly every Democratic and Obama headquarters during Barack Obama’s 2008 campaign. Even though he was obligated to charge for the image, and even though profits went back to producing more of the image, it would still appear as if Associated Press has a legitimate legal claim over the product. Again, it is unfortunate that the legal system punishes “good intention”. If Fairey wins his suit, it will be because he adhered to the four essential factors that constitute fair use, as previously mentioned in the first paragraph.

1. “Fairey's lawyers will argue that the poster is protected under what's called ‘Fair Use’—a legal construct that allows for certain exceptions to copyright protections” (Lastowka). This falls under the first factor, stating the purpose of his work is non-commercial.
2. It will be determined that all profits from this work were strictly used to make more posters, stickers, et al. and that Fairey and his team kept none of the proceeds. As with the first factor, the second determination of fair use explains that Fairey is using his work in a nature that is not in violation of the copyright of Manny Garcia’s original work.
3. The court will find that Fairey’s work is transformative of Garcia’s work in such a manner that it does not harm or infringe on the original work, potentially using Garcia’s own words that he at first did not recognize Fairey’s work as his own. This pertains to the third determining factor, stating that Fairey’s rendition is appreciably different from Garcia’s original photograph.
4. Lastly, the Barack Obama campaign or a network of local organizations will argue that Fairey’s work was strictly a donation to the campaign. Thus, Fairey would have no specific monetary gain due to the fact that all proceeds go to campaign organizations, plus it could potentially enhance the value of Garcia’s work.

If anything is gained from this, the issue of Fair Use is now out in the public in a manner that is larger than ever before. Young producers will now have a reason to check their work more carefully before incorporating any video or images in their work, musicians will now have more incentive to consider their work carefully before releasing it, news programs will be more careful on their programming, etc. The only harmful outcome from such a future is that visual, audio, and literary work is intended to be shared and discussed. It truly would be a sad future to see artists and writers worrying about their paychecks and their credibility on an asinine copyright issue. Fair Use was created with the criticism, advancement, and humility of works in mind. It should stay that way.____

Works Cited
Fairey, Shepard. “Hope”. 2008. Smithsonian Museum. 13 March 2009
.
Fairey, Shepard. Interview with Terry Gross. Fresh Air from WHYY: Shepard Fairey Interview:
Inspiration Or Infringement?. 26 February 2009. 09 March 2009
Garcia, Manny. AP/ Mannie Garcia 2006. 09 March 2009 .
Garcia, Manny. Fresh Air from WHYY: Mannie Garcia Interview: The Photo That Sparked
‘“Hope”’. 26 February 2009. 09 March 2009
Higgins, Charlotte. “Work of art that inspired a movement ... a urinal”. UK News: The
Guardian. 02 December 2004. 11 March 2009 .
Itzkoff, Dave. “A.P. Says It Owns Image in Obama Poster.” ArtsBeat Culture News and Views.
05 February 2009. 09 March 2009 .
Lastowka, Greg. Fresh Air from WHYY: Greg Lastowka Interview: Law Professor Weighs in on
‘“Hope”’ Squabble. 26 February 2009. 13 March 2009 .
“Marilyn Monroe (Marilyn Diptych)- Third Most Influential Work of Modern Art”. Artz. 2008. 11 March 2009 < http://www.artsz.org/marilyn-diptych-pop-art-andy-warhol/>.
Robbins, Liz. “Artist Admits Using Other Photo for ‘“Hope”’ Poster”. New York Times Art & Design. 17 October 2009. 12 February 2010 
design/18fairey.html?_r=2&scp=2&sq=shepard%20fairey&st=cse>
US CODE: Title 17, 107. Limits on Exclusive Rights: Fair Use. 2009 March 03. Cornell
University Law School. 10 March 2009 .

The Moral and Legal Implications of Fair Use - Assignment

Paper #2: A Cultural Interior: Feature Article / Exposé
7-10 pages + five outside sources

This assignment asks you extend your focus beyond the personal, and consider the construction and collection of ideas in our culture. I want you to examine what we take for granted in our culture, interrogate it, and bring our discoveries to light. For the next five weeks, you’re not student writers; you’re journalists, freelancers, authors – writing for the news publication, magazine, or insider program of your choice. Your topic will be something that engages and or troubles you about our cultural interior. Decide what interests you, and what audience might be interested, too – where might such an article or exposé be published? Remember, an article catches the audience’s attention and engages them in new information, or old information in a new way. An exposé reveals little known stories or information, tantalizes its readers with the promise of the “untold truth” or “never-before-seen footage” – you get the idea. The point is to make your writing interesting – make us want to read!

There is a minimum of 5 sources required to support your 7 – 10 page article, drawing from a variety of source materials: library books, journals, magazines, newsprint, credible web publications, interviews, etc. Our text, The Curious Researcher, will help us through.

The Moral and Legal Implications of Fair Use - Notes

http://news.yahoo.com/s/ap/20090209/ap_on_re_us/obama_poster
http://www.dailynews.com/news/ci_11652757?source=rss
http://www.google.com/hostednews/ap/article/ALeqM5hcqhpLfgHpcIipb1rVGvAoa5BusAD96889MG0

http://www.theweek.com/article/index/93719/Exhibit_of_the_week_Shepard_Fairey_Supply_and_Demand
“Parody propaganda”
““His smart, peppy, decoratively frenetic visuals” combine elements of mid-20th-century advertising, 1960s psychedelia, and “authoritarian chic” harking back to Soviet days. Like Andy Warhol, Fairey frequently appropriates images from popular culture (he recently was threatened with a lawsuit for failing to license the photograph on which he based the Obama image). Yet where Warhol established a cultural norm in which being cool “meant combining personal originality with stanch impassivity,” Fairey points a way toward a new political earnestness.”

Andy Warhol’s Marilyn Diptych uses an image of Marilyn Monroe from a single publicity photograph from the film Niagara.

http://www4.law.cornell.edu/uscode/17/107.html

Shepard Fairey created this image because of his own personal endorsement of who he considered to be the right choice for president of the United States. He asked permission from cities to graffiti their walls with massive iconic rendering of his work on this image and probably used his own money or private donations to put the images up. Did he create these images to sell as a commercial icon or did he create these images to publically endorse a candidate? If the man behind these images was not that of Frank Shepard Fairey and instead was a graduate student or bored high schooler with a purpose, would AP make this same fight? As famous as Fairey is, he is equally infamous to the legal sectors of many cities.

POSSIBLE THESIS: LIMITATIONS OF FAIR USE
Warhol borrowed an image of Monroe from an endorsement of her film Niagara in the exact same way that Fairey borrowed his 2006 AP stock photo of Barack Obama. The only difference between the two is that Warhol created his image for commercial use and Fairey created his in mind of the first clause of the Fair Use Act: nonprofit educational purpose, in other words as an endorsement. Associated Press only came out against Fairey early in 2009 AFTER this image was already iconic and after the image became profitable.

http://www.npr.org/templates/story/story.php?storyId=101184444 Mannie Garcia took the photo. What about his credit?
http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=101184444&m=101184561 Mannie Garcia interview
Did not recognize his image when he saw the poster
“Noticed there was something about it, but did not know it was mine”
“Disappointed to know that someone went online and used the image when it did not belong to them…simply because it is on the internet does not belong to it”
Does not agree that it is ok for Fairey even if he transformed the image
Assignment was to cover Clooney, not Obama. Recent trip to Darfur. Wanted to bring attention to human rights there. Sam Brownback and Barack Obama were 2 present senators. “Nothing glorious about the room… crammed”. Obama is looking at Brownback and Garcia was waiting for a nice headshot and “it happened…[he was] ready”. He is freelance and is in dispute with AP over whether there was a contract to that image. Copies of the image are being sold by the Danziger Project in NYC… it is in dispute what distribution he gets from the image.
“Mannie Garcia was clearly employed by AP when the image was photographed and it is clearly property of AP.”

Vanilla Ice Queen Under Pressure
From http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=101187066&m=101187721
http://www.npr.org/templates/story/story.php?storyId=101187066
Greg Lestowka
Harper and Rowe—Copyright vs. Fair Use
Photojournalism factualism vs. pure creativity 2:50
Not how much of the work is used, how much of the work is significant?
Is the owner of the copyright being harmed by the defendant’s use?
AP could claim it was harmed on the factor that its photos are licensed for derivative use.
LOOK UP DERIVATIVE USE http://en.wikipedia.org/wiki/Derivative_work
Fairey’s work is transformative as a bold political statement over a news report FAIR USE
Fairey said he put the sales of the profit back into making more posters so it was not in commercial sense. But then again, that was his own decision to push the money back.
Youtube—an original video is produced by you, so you are a creator, but you are an infringer as well if you use another artist’s music, image, etc.

Campbell vs Acuff-Rose—Roy Orbison Pretty Woman http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

The Diptych of Monroe was ranked 3rd most influential out of 500 pieces http://www.guardian.co.uk/uk/2004/dec/02/arts.artsnews1

Towerrecord.com Rolling Stones Like a Rolling Stone

ASCAP licensing

http://suicidegirls.com/interviews/Shepard+Fairey%3A+Purveyor+of+Hope/
Fairey did not keep profits
http://en.wikipedia.org/wiki/Marilyn_Diptych The Marilyn Diptych derives from the film Niagara

The Moral and Legal Implications of Fair Use - Draft 1

The Moral and Legal Implications of Fair Use

The Copyright Act of 1976, 17 U.S.C. § 106 states that:
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. (Cornell)”

Thirty-three years later, early 2009, Associated Press threatened to file a lawsuit against street artist Shepard Fairey, asking to share any profits from his Obama Hope posters that allegedly uses one of their images (Itzkoff). Shortly after, the Stanford Law School’s Fair Use project filed their own lawsuit stating that Shepard Fairey is protected under the aforementioned Fair Use Act, especially after Fairey agreed to pay the initial licensing fee (Fairey). With the two suits currently active, many online blogs and media sources are ablaze over the issue of which side the Fair Use protects.

A close examination of the Associated Press’s photograph from 2006 and Shepard Fairey’s rendering of the photo must be examined and prior historical marks on this issue must be reviewed as well to correctly dispute these two arguments to determine if artist Shepard Fairey is on the protected side of the Fair Use Act, if the Fair Use Act is biased depending on media, and on the strength of interpretation that should be allowed for such Act.

[Photograph by Mannie Garcia, AP NOT SHOWN]
[Stylized image by Shepard Fairey NOT SHOWN]

As the Fair Use is defined, it could be argued that Fairey used a substantial amount of the original work and that the image was for monetary gain. But what is forgotten by many is that the new image manipulates an ordinary stock photograph in a manner to persuade voters in a “nonprofit educational purpose”. It is also forgotten that most of the revenue from this image—via stickers, shirts, etc.—was used by Fairey to create more of the Hope posters and other Hope items. What other historical images have been transformed in a similar manner?

It is pretty well accepted that Andy Warhol used an image of Marilyn Monroe from her film Niagara to create the Marilyn Diptych (Wikipedia) for no further purpose than to continue his commercial success. Fairey altered the image he found of Barack Obama to create an image for the sake of promoting a man to win the presidential office and, as far as it is known, not for the sake of personal profits or fame (Fairey interview). In fact, Fairey even agreed to pay for the initial use of the photograph when he discovered that it was copyrighted (Fairey). With such a dramatic shift of intention, why is it that the seemingly benevolent rendering of Barack Obama receives so much attention for its use of an image when the depiction of Monroe received none? It would seem obvious that neither work is conclusively at fault. Both Warhol and Fairey used their images in a transformative method that completely differentiates from the original work. With Warhol, a photograph from a movie advertisement evolves into an eerie posthumous icon of immortality (Wikipedia) and with Fairey, a stock photograph evolves into an iconic political message. The only difference, of course, is that Associated Press is suing Fairey in a new era with stronger copyright laws.

It goes with little argument that Fairey used Associated Press photographer Garcia’s 2006 image of George Clooney and Barack Obama after he found inspiration to create this poster. Fairey cropped the image to exclude Clooney and proceeded to tilt the image of Barack Obama. The resulting Barack Obama Hope poster is a transformative piece of art that is very different from the original photograph that had no further meaning than the moment it captured: Barack Obama attending George Clooney’s National Press Club discussion concerning Darfur. What was once a stock photograph for news syndicates interested in George Clooney’s press conference now became another iconic image created by Fairey. Before the Associated Press came out against Fairey, their photo of Clooney and Obama was hardly memorable and hardly as famous as it is now. Because of such, the fourth determining factor of the Fair Use must be questioned. The Hope poster had and will continue to have a tremendous impact on the historical worth and marketability of the original photo, of the Democratic National Party, and of Barack Obama.

Both altered images (Marilyn and Hope) will maintain their statuses with American pop culture because of their significance at the time they came out. However, it cannot be argued that the original photographs that they derive from will maintain the same level of iconic prestige. What Warhol and Fairey did to the images they found were impactful, stylistically repetitive, and meaningful. Due to this indisputable evidence alone, the fourth requirement of the Fair Use Act must be further reviewed: “the effect of the use”. What effect and impact did these images make commercially, on society, in media, etc.? For one, the Marilyn Diptych was ranked the third most influential art piece out of 500 selected pieces by one survey (Higgins). And some would argue that Fairey’s work was the icon behind the inspirational speeches and images that truly convinced America that Obama was the best Hope for the nation. Not to mention again that this image enhanced the popularity of Associated Press’s work while Monroe enhanced the ever-popular image of a late celebrity. To this effect, it is almost surprising that the strongest Fairey advocates are not requesting the Associated Press to pay compensation to Fairey for the enormous advertisement and promotion.

With all of these implications aside, there is one bias to this thesis: Warhol and Fairey indisputably used images taken by other photographers to assist them with their work. Garcia and the Associated Press will never receive compensation for their work if the Fair Use Act does not hold. The original artists who are attempting to make their own profits deserve compensation, if not acknowledgment. In the music industry, it is common to see musicians cover other musician’s work. Bob Dylan has been covered by bands as famous as the Rolling Stones (Like a Rolling Stone) and as underground as The Slackers (I Shall Be Released). Before the Fair Use Act legislation of 1976 and before major record labels became the dominating factor of bands, a bond was prevalent in the music business. Bands like the Rolling Stones or The Jimi Hendrix Experience could contact musicians such as Bob Dylan directly and petition their request to cover (or as many would put it “honor”) their music by placing it in their albums. Now the traditional method to cover another musician’s work includes contacting the record label they belong to. It is revolting that music has become a legal matter over an honor system, but either way the original artist still gets compensation for their work. Either way it is argued, the Fair Use Act is still the best available legal document protecting both the original artist and the secondary artist. Only the legal interpretation of such should be argued.

The moral claim that Shepard Fairey reproduced a photograph in a manner that does not harm or infringe on the rights of the original artist can be widely accepted by fans and non fans. His iconic Hope poster was created in mind to help place an image behind Obama’s unprecedented grassroots movement. It was also created without any intentions of proceeds for personal gains. The legal claim, however, will strongly imply that Fairey created this image for profit—regardless of how the revenue was allocated—and that the Associated Press should be rewarded some revenue for providing the initial image. An analogous comparison will again show that original artist (as mentioned, musicians) are in some way compensated for their original work, typically monetarily. And such method has proven itself. For example, even though Rage Against the Machine’s aggressive rap rock rendition of Bob Dylan’s Maggie’s Farm sounds completely unique from the original work, credit still must be rewarded back to the original artist. Just as Shepard Fairey’s work does.

It is almost a shame that Fairey is in a legal dispute with Associated Press that many, including this writer, hope he wins. Fairey is a street artist that simply intended to make stickers of a politician he supports. The commercial works he has been involved with are very specific commissions that he did in earnest. His noncommercial art, as the Obama Hope poster was intended to be, are simply non-profit political statements and/ or parody propaganda ads. As it would turn out, the one piece of graffiti he asked permission to post and that he did not intend as political satire resulted as the one work that got him sued. (Of course, he has been arrested numerous times for illegal graffiti, but such stories are not pertinent to this issue.)

And so the question remains. How strictly should the Fair Use Act be interpreted? At what point does an artist legally have the right to manipulate an original work and call it their own?

If the work is satirical enough, the secondary work is protected by the first amendment. The new work is considered to be so outlandishly ridiculous that the average citizen will interpret it amusingly. But with that said, when is the work considered libelous? Comedians tend to be heavily alleviated from many accusations of copyright infringement and libelous content because their work is visually and/or audibly apparent. Their work is in such a nature that it is accepted to not be plagiaristic of an original work, but a humorous depiction.

The Associated Press photographer who took the image in dispute, Mannie Garcia, was “surprised” to learn that the image Fairey used was in fact his (Garcia). This goes back to the concept that Fairey’s work on Garcia’s AP image was clearly transformative. Ironically enough, Garcia was commissioned that day to take photographs of George Clooney’s conference on Darfur, not on either senator present: Obama or Brownback (Garcia). In the interview, photographer Garcia essentially clarifies the claim that Fairey’s rendition of the photograph of the work is completely transformative of the original but, says Garcia, “simply because it is on the internet, it does not belong to [Fairey]”. Even if this statement is true, the third factor for Fair Use can still be questioned due to the fact that the new work is unrecognizable to the original artist. It can also be argued with the same factor that the implications and meanings behind the new image are separate enough from Garcia’s original work to be applicable for Fair Use.

Though the photograph of Barack Obama does not belong to Fairey, his interpretation of the image that will be on the walls of the Smithsonian, in the history books, and in the minds of many Americans will forever be attached to him. Unfortunately, the original image cannot have that comfort because a simple search for “obama clooney darfur 2006” on www.google.com (as of March 14, 2009) will reveal Garcia’s image on thousands of separate web pages. At least on the first two pages of image search, every one of his images has “2006 Mannie Garcia/ The Associated Press” with a copyright logo. If the same is true when Fairey initially found the image, it should go without saying that he legally owes compensation to not just Associated Press but Garcia as well. Had Fairey been a typical Photoshop wizard in high school with the same campaign, the image probably would not have made such a commercial success. Any profits from it would be too unsubstantial for Associated Press to dispute. But this image was created by Shepard Fairey, a man whose parody propaganda and recognizable artistic style is well known in many major cities throughout the United States. Through repetition, Fairey has made his work known. And when he came out with the Obama campaign, it received massive attention. Massive attention, in this regard, results in a large demand for the product of the icon Fairey constructed. And so the dispute arises.

Fairey more than likely made a significant profit from his work, an amount of which is unknown. His image was used by nearly every Democratic and Obama headquarters during Barack Obama’s 2008 campaign. Even though he was obligated to charge for the image, and even though profits went back to producing more of the image, it would still appear as if Associated Press has a legitimate legal claim over the product. Again, it is unfortunate that the legal system punishes “good intention”.

If Fairey wins his suit, it will be under a facet of determinations:

• The court will find that Fairey’s work is transformative of Garcia’s work in such a manner that it does not harm or infringe on the original work, potentially using Garcia’s own words that he did not recognize Fairey’s work as his own at first.
• It will be discovered that all profits from this work were strictly used to make more of the posters, stickers, et al. and that Fairey and his team kept none of the proceeds.
• “Fairey's lawyers will argue that the poster is protected under what's called ‘Fair Use’ — a legal construct that allows for certain exceptions to copyright protections” (Lastowka).
• Perhaps the national Barack Obama campaign or a network of local organizations will argue that this work was strictly a donation to the campaign.

If anything is gained from this, the issue of Fair Use is now out in the public in a manner
that is larger than ever seen before. Young producers will now have a reason to check their work more carefully before incorporating any video or images in their work, musicians will now have more incentive to consider their work carefully before releasing it, news programs will be more careful on their programming, etc. The only harmful outcome from such a future is that visual, audio, and literary work is intended to be shared and discussed. It truly would be a sad future to see artists and writers worrying about their paychecks and their credibility on an asinine copyright issue. Fair Use was created with the criticism, advancement, and humility of works in mind. It should stay that way.____

Works Cited
Fairey, Shepard. Hope. 2008. Smithsonian Museum. 13 March 2009
.
Fairey, Shepard. Interview with Terry Gross. Fresh Air from WHYY: Shepard Fairey Interview:
Inspiration Or Infringement?. 26 February 2009. 09 March 2009
Garcia, Manny. AP/ Mannie Garcia 2006. 09 March 2009 .
Garcia, Manny. Fresh Air from WHYY: Mannie Garcia Interview: The Photo That Sparked
‘Hope’. 26 February 2009. 09 March 2009
Higgins, Charlotte. “Work of art that inspired a movement ... a urinal”. UK News: The
Guardian. 02 December 2004. 11 March 2009 .
Itzkoff, Dave. “A.P. Says It Owns Image in Obama Poster.” ArtsBeat Culture News and Views.
05 February 2009. 09 March 2009 .
Lastowka, Greg. Fresh Air from WHYY: Greg Lastowka Interview: Law Professor Weighs in on
‘Hope’ Squabble. 26 February 2009. 13 March 2009 .
Marilyn Diptych. 01 March 2009. Wikipedia. 10 March 2009
.
US CODE: Title 17, 107. Limits on Exclusive Rights: Fair Use. 2009 March 03. Cornell
University Law School. 10 March 2009 .

The Moral and Legal Implications of Fair Use - Draft 2

The Moral and Legal Implications of Fair Use

The Copyright Act of 1976, 17 U.S.C. § 106 states that:
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. (Cornell)”

Thirty-three years later, early 2009, Associated Press threatened to file a lawsuit against street artist Shepard Fairey, asking to share any profits from his Obama Hope posters that allegedly uses one of their images (Itzkoff). Shortly after, the Stanford Law School’s Fair Use project filed their own lawsuit stating that Shepard Fairey is protected under the aforementioned Fair Use Act, especially after Fairey agreed to pay the initial licensing fee (Fairey). With the two suits currently active, many online blogs and media sources are ablaze over the issue of which side the Fair Use protects.
A close examination of the Associated Press’s photograph from 2006 and Shepard Fairey’s rendering of the photo must be examined and prior historical marks on this issue must be reviewed as well to correctly dispute these two arguments to determine if artist Shepard Fairey is on the protected side of the Fair Use Act, if the Fair Use Act is biased depending on media, and on the strength of interpretation that should be allowed for such Act.

[Photograph by Mannie Garcia, AP NOT SHOWN]
[Stylized Image by Shepard Fairey NOT SHOWN]

As the Fair Use is defined, it could be argued that Fairey used a substantial amount of the original work and that the image was for monetary gain. But what is forgotten by many is that the new image manipulates an ordinary stock photograph in a manner to persuade voters in a “nonprofit educational purpose”. It is also forgotten that most of the revenue from this image—via stickers, shirts, etc.—was used by Fairey to create more of the Hope posters and other Hope items. What other historical images have been transformed in a similar manner?

It is pretty well accepted that Andy Warhol used an image of Marilyn Monroe from her film Niagara to create the Marilyn Diptych (Wikipedia) for no further purpose than to continue his commercial success. Fairey altered the image he found of Barack Obama to create an image for the sake of promoting a man to win the presidential office and, as far as it is known, not for the sake of personal profits or fame (Fairey interview). In fact, Fairey even agreed to pay for the initial use of the photograph when he discovered that it was copyrighted (Fairey). With such a dramatic shift of intention, why is it that the seemingly benevolent rendering of Barack Obama receives so much attention for its use of an image when the depiction of Monroe received none? It would seem obvious that neither work is conclusively at fault. Both Warhol and Fairey used their images in a transformative method that completely differentiates from the original work. With Warhol, a photograph from a movie advertisement evolves into an eerie posthumous icon of immortality (Wikipedia) and with Fairey, a stock photograph evolves into an iconic political message. The only difference, of course, is that Associated Press is suing Fairey in a new era with stronger copyright laws.

It goes with little argument that Fairey used Associated Press photographer Garcia’s 2006 image of George Clooney and Barack Obama after he found inspiration to create this poster. Fairey cropped the image to exclude Clooney and proceeded to tilt the image of Barack Obama. The resulting Barack Obama Hope poster is a transformative piece of art that is very different from the original photograph that had no further meaning than the moment it captured: Barack Obama attending George Clooney’s National Press Club discussion concerning Darfur. What was once a stock photograph for news syndicates interested in George Clooney’s press conference now became another iconic image created by Fairey. Before the Associated Press came out against Fairey, their photo of Clooney and Obama was hardly memorable and hardly as famous as it is now. Because of such, the fourth determining factor of the Fair Use must be questioned. The Hope poster had and will continue to have a tremendous impact on the historical worth and marketability of the original photo, of the Democratic National Party, and of Barack Obama.

Both altered images (Marilyn and Hope) will maintain their statuses with American pop culture because of their significance at the time they came out. However, it cannot be argued that the original photographs that they derive from will maintain the same level of iconic prestige. What Warhol and Fairey did to the images they found were impactful, stylistically repetitive, and meaningful. Due to this indisputable evidence alone, the fourth requirement of the Fair Use Act must be further reviewed: “the effect of the use”. What effect and impact did these images make commercially, on society, in media, etc.? For one, the Marilyn Diptych was ranked the third most influential art piece out of 500 selected pieces by one survey (Higgins). And some would argue that Fairey’s work was the icon behind the inspirational speeches and images that truly convinced America that Obama was the best Hope for the nation. Not to mention again that this image enhanced the popularity of Associated Press’s work while Monroe enhanced the ever-popular image of a late celebrity. To this effect, it is almost surprising that the strongest Fairey advocates are not requesting the Associated Press to pay compensation to Fairey for the enormous advertisement and promotion.

With all of these implications aside, there is one bias to this thesis: Warhol and Fairey indisputably used images taken by other photographers to assist them with their work. Garcia and the Associated Press will never receive compensation for their work if the Fair Use Act does not hold. The original artists who are attempting to make their own profits deserve compensation, if not acknowledgment. In the music industry, it is common to see musicians cover other musician’s work. Bob Dylan has been covered by bands as famous as the Rolling Stones (Like a Rolling Stone) and as underground as The Slackers (I Shall Be Released). Before the Fair Use Act legislation of 1976 and before major record labels became the dominating factor of bands, a bond was prevalent in the music business. Bands like the Rolling Stones or The Jimi Hendrix Experience could contact musicians such as Bob Dylan directly and petition their request to cover (or as many would put it “honor”) their music by placing it in their albums. Now the traditional method to cover another musician’s work includes contacting the record label they belong to. It is revolting that music has become a legal matter over an honor system, but either way the original artist still gets compensation for their work. Either way it is argued, the Fair Use Act is still the best available legal document protecting both the original artist and the secondary artist. Only the legal interpretation of such should be argued.

The moral claim that Shepard Fairey reproduced a photograph in a manner that does not harm or infringe on the rights of the original artist can be widely accepted by fans and non fans. His iconic Hope poster was created in mind to help place an image behind Obama’s unprecedented grassroots movement. It was also created without any intentions of proceeds for personal gains. The legal claim, however, will strongly imply that Fairey created this image for profit—regardless of how the revenue was allocated—and that the Associated Press should be rewarded some revenue for providing the initial image. An analogous comparison will again show that original artist (as mentioned, musicians) are in some way compensated for their original work, typically monetarily. And such method has proven itself. For example, even though Rage Against the Machine’s aggressive rap rock rendition of Bob Dylan’s Maggie’s Farm sounds completely unique from the original work, credit still must be rewarded back to the original artist. Just as Shepard Fairey’s work does.

It is almost a shame that Fairey is in a legal dispute with Associated Press that many, including this writer, hope he wins. Fairey is a street artist that simply intended to make stickers of a politician he supports. The commercial works he has been involved with are very specific commissions that he did in earnest. His noncommercial art, as the Obama Hope poster was intended to be, are simply non-profit political statements and/ or parody propaganda ads. As it would turn out, the one piece of graffiti he asked permission to post and that he did not intend as political satire resulted as the one work that got him sued. (Of course, he has been arrested numerous times for illegal graffiti, but such stories are not pertinent to this issue.)

And so the question remains. How strictly should the Fair Use Act be interpreted? At what point does an artist legally have the right to manipulate an original work and call it their own?

If the work is satirical enough, the secondary work is protected by the first amendment. The new work is considered to be so outlandishly ridiculous that the average citizen will interpret it amusingly. But with that said, when is the work considered libelous? Comedians tend to be heavily alleviated from many accusations of copyright infringement and libelous content because their work is visually and/or audibly apparent. Their work is in such a nature that it is accepted to not be plagiaristic of an original work, but a humorous depiction.

The Associated Press photographer who took the image in dispute, Mannie Garcia, was “surprised” to learn that the image Fairey used was in fact his (Garcia). This goes back to the concept that Fairey’s work on Garcia’s AP image was clearly transformative. Ironically enough, Garcia was commissioned that day to take photographs of George Clooney’s conference on Darfur, not on either senator present: Obama or Brownback (Garcia). In the interview, photographer Garcia essentially clarifies the claim that Fairey’s rendition of the photograph of the work is completely transformative of the original but, says Garcia, “simply because it is on the internet, it does not belong to [Fairey]”. Even if this statement is true, the third factor for Fair Use can still be questioned due to the fact that the new work is unrecognizable to the original artist. It can also be argued with the same factor that the implications and meanings behind the new image are separate enough from Garcia’s original work to be applicable for Fair Use.

Though the photograph of Barack Obama does not belong to Fairey, his interpretation of the image that will be on the walls of the Smithsonian, in the history books, and in the minds of many Americans will forever be attached to him. Unfortunately, the original image cannot have that comfort because a simple search for “obama clooney darfur 2006” on www.google.com (as of March 14, 2009) will reveal Garcia’s image on thousands of separate web pages. At least on the first two pages of image search, every one of his images has “2006 Mannie Garcia/ The Associated Press” with a copyright logo. If the same is true when Fairey initially found the image, it should go without saying that he legally owes compensation to not just Associated Press but Garcia as well. Had Fairey been a typical Photoshop wizard in high school with the same campaign, the image probably would not have made such a commercial success. Any profits from it would be too unsubstantial for Associated Press to dispute. But this image was created by Shepard Fairey, a man whose parody propaganda and recognizable artistic style is well known in many major cities throughout the United States. Through repetition, Fairey has made his work known. And when he came out with the Obama campaign, it received massive attention. Massive attention, in this regard, results in a large demand for the product of the icon Fairey constructed. And so the dispute arises.

Fairey more than likely made a significant profit from his work, an amount of which is unknown. His image was used by nearly every Democratic and Obama headquarters during Barack Obama’s 2008 campaign. Even though he was obligated to charge for the image, and even though profits went back to producing more of the image, it would still appear as if Associated Press has a legitimate legal claim over the product. Again, it is unfortunate that the legal system punishes “good intention”.

If Fairey wins his suit, it will be under a facet of determinations:

• The court will find that Fairey’s work is transformative of Garcia’s work in such a manner that it does not harm or infringe on the original work, potentially using Garcia’s own words that he did not recognize Fairey’s work as his own at first.
• It will be discovered that all profits from this work were strictly used to make more of the posters, stickers, et al. and that Fairey and his team kept none of the proceeds.
• “Fairey's lawyers will argue that the poster is protected under what's called ‘Fair Use’ — a legal construct that allows for certain exceptions to copyright protections” (Lastowka).
• Perhaps the national Barack Obama campaign or a network of local organizations will argue that this work was strictly a donation to the campaign.

If anything is gained from this, the issue of Fair Use is now out in the public in a manner
that is larger than ever seen before. Young producers will now have a reason to check their work more carefully before incorporating any video or images in their work, musicians will now have more incentive to consider their work carefully before releasing it, news programs will be more careful on their programming, etc. The only harmful outcome from such a future is that visual, audio, and literary work is intended to be shared and discussed. It truly would be a sad future to see artists and writers worrying about their paychecks and their credibility on an asinine copyright issue. Fair Use was created with the criticism, advancement, and humility of works in mind. It should stay that way.____

Works Cited
Fairey, Shepard. Hope. 2008. Smithsonian Museum. 13 March 2009
.
Fairey, Shepard. Interview with Terry Gross. Fresh Air from WHYY: Shepard Fairey Interview:
Inspiration Or Infringement?. 26 February 2009. 09 March 2009
Garcia, Manny. AP/ Mannie Garcia 2006. 09 March 2009 .
Garcia, Manny. Fresh Air from WHYY: Mannie Garcia Interview: The Photo That Sparked
‘Hope’. 26 February 2009. 09 March 2009
Higgins, Charlotte. “Work of art that inspired a movement ... a urinal”. UK News: The
Guardian. 02 December 2004. 11 March 2009 .
Itzkoff, Dave. “A.P. Says It Owns Image in Obama Poster.” ArtsBeat Culture News and Views.
05 February 2009. 09 March 2009 .
Lastowka, Greg. Fresh Air from WHYY: Greg Lastowka Interview: Law Professor Weighs in on
‘Hope’ Squabble. 26 February 2009. 13 March 2009 .
Marilyn Diptych. 01 March 2009. Wikipedia. 10 March 2009
.
US CODE: Title 17, 107. Limits on Exclusive Rights: Fair Use. 2009 March 03. Cornell
University Law School. 10 March 2009 .