Peter Friedman
Associate Professor, Legal Analysis & Writing
Case Western Reserve University School of Law
Ruling Imagination: Law and Creativity
Copying or transforming?
Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by,
first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.
January 26th, 2009 at 7:31 pm
I agree. What Shepard Fairey has done is not so much unlike Warhol’s silkscreens, which put images in a new context and gave them new meaning. The difference being perhaps that Warhol often picked iconic images, where Fairey has chosen a generic image of an iconic figure. Fairey’s image was prominent and powerful during the campaign – and it is safe to say that all of the emotional resonance derives from what he added to the image. While Fairey did not shoot the image – he did give it meaning and context.
January 27th, 2009 at 5:14 am
I read the Sherwin piece and he makes some good points. How creative a photograph is has nothing to do with copyright. If the photograph is copyrighted it is copyrighted no matter how you shake it down. Would you think differently if the image he used was a painting instead of a press photograph?
January 27th, 2009 at 9:53 am
BG,
(1) The nature of the copyrighted work is in fact one factor considered in determining whether its use in another work is an infringement or fair use. So yes, if the image he Fairey had used had been a painting (or at any rate more creative than the photo of Obama at issue), I might think differently.
(2) More importantly, Fairey’s work isn’t merely a “copy.” It takes the photo and makes something new of it. There’s no way in the world the poster with HOPE printed on it would’ve had any impact if the image had been the photo. Fairey’s image simply isn’t the same as the photo. It might’ve been derived from the photo, but so what? Did you notice that the John Williams composition, “Air and Simple Gifts,” played at the inauguration borrowed heavily from Aaron Copland’s Appalachian Spring, which itself was derived from a Shaker hymn? Are those works plagiarized, acts of theft, copyright infringements?
January 27th, 2009 at 8:54 pm
You come off as if you don’t agree with copyright period. Warhol, Hirst, and many other mainstream artists have been charged with infrindgement for much less. So why should Shepard Fairey be any different? The work is derivative and I don’t think anyone has doubted that. But the owner of the photograph does have a word about how the photograph can be used. Fairey made a stencil over a printed version of the photograph. That would be like me making a stencil over a printed page of your website and adding color to it. The fact remains that Fairey has settled out of court over issues like this in the past.
January 27th, 2009 at 9:04 pm
This would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose… campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there’d be a strong argument for market harm
January 27th, 2009 at 9:31 pm
BG,
I don’t disagree with copyright; I disagree with the use of copyright to stifle creativity. Copyright’s only point is to promote creativity. You can’t seriously believe Fairey’s image doesn’t have a resonance and expressiveness that the original photo lacks? That’s transformation.
And the fact Fairey has settled out of court establishes nothing more than that it wasn’t worth more to try the case than to settle it.
I’m not suggesting it’s an obvious case, but you are. I think you’re wrong in that regard. You might want to take a look at something like this: http://www.recirca.com/backissues/c101/hmckerveydlong.shtml
February 1st, 2009 at 7:06 pm
Copyright’s only point is to promote the INDIVIDUAL to create more. Copyright protects the owner of the copyright. The idea being that the artist will do more painting if she knows that she will have exclusive rights to the work and therefore acknowledged over someone who simply borrows from it.
Transformation has to be examined on a case by case basis. One of the key points of transformation in law is that it is given more weight than commerciality in court. The verdict depends on the taste of the jury or the judge. The first major case for transformation took place with Campbell v. Acuff-Rose Music. The judge sided with 2 Live Crew because he felt that their use of “oh, Pretty Woman” by Roy Orbison would not confuse the public to be mistaken for the original song because Orbison was a famous musician. The judge also found that it would be unlikely for any artist to find creating transformative works a lucrative derivative market. I think the $700,000 that Shepard Fairey’s Hope poster has made and the millions that Richard Prince has made is a sign of the opposite. I don’t think the judge at that time would have had the same verdict if 2 Live Crew had used music by a lesser known artist.
February 1st, 2009 at 7:51 pm
No, copyright is, under the Constitution, intended to promote creativity, not the individual artist who creates. The purpose is for the social good, not to enrich individuals.
If you think I don’t know about the other stuff you wrote about, go look at whatisfairuse.blogspot.com, but thanks for the refresher course.
I look at Fairey’s poster and the original photo and see two entirely different works that express very different things. Do you think the photograph represents anything that conceivably earn hundreds of thousands of dollars and iconic status+ That happened because of what Fairey did. The fact he started from the photo doesn’t change the fact the creativity that has real value and resonance is Fairey’s, not the photographers. You ought to read the article by Judge Pierre Leval referred to in the link in the last line of the original post.
You might want to look at also at Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007).
One thing is clear finding that line between a transformative work and a mere derivative work is a difficult question that will continue to be fought over for a long time. But contemporary technology has changed the entire material underpinnings on which earlier views of fair use had developed. And when the material conditions law governs change, the law has to change too. The law does not depend solely on the taste of the judge.
And the 2 Live Crew case is easy to understand as parody. The song used the original music of Pretty Woman to criticize what Orbison’s song expressed about women and to express an entirely different view. We could never outlaw parody or any other kind of commentary or criticism that doesn’t use the copyrighted work as its draw. The Salinger biography’s use of Salinger’s letters wasn’t fair use because, despite the fact biography is plainly a form of criticism, the author used so much of Salinger’s letters that readers would buy the book solely to read writing by Salinger that had never been published. Nothing, in fact, had been published by Salinger for decades, and there was therefore a massive market HE had created that the biographer was trying to exploit.
Fairey was not exploiting any value or audience the photographer of the Obama picture had created.
February 3rd, 2009 at 3:46 pm
[...] anyone from doing anything with it that I don’t give them permission to do. One commenter on my post last week regarding Shepard Fairey’s Obama campaign poster manifested this confusion about the differences between real property and intellectual property. I [...]
February 5th, 2009 at 12:26 am
[...] various views on something I’m looking forward to: AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its [...]
February 6th, 2009 at 10:28 am
[...] As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did. [...]
February 6th, 2009 at 8:48 pm
[...] As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did. [...]