Shepard Fairey did not infringe AP’s copyright because AP could not have had a copyright in anything Shepard Fairey used in his Obama Hope poster.
I have discovered another reason Shepard Fairey did not commit copyright infringement when he stenciled AP’s photograph of Obama to begin the creation of his Obama Hope poster — nothing Fairey copied is even entitled to copyright protection.
In Meshwerks v. Toyotoa Motor Sales, Inc. (2008), the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. (My friend and former student Brian Wassom was lead counsel for Toyota.) The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the digital model around on a computer screen within the digital photograph of the background. Thus, the Toyota Solara in the photograph to the right is likely a digital model of a Toyota Solara superimposed upon and moved within the photograph of the picturesque background.
The court noted the obvious difficulties of applying existing law to new technologies (a theme I hammer again and again), but found its solution in the ways, since the invention of photography in the 19th Century, courts have figured out how to determine what photographs (or what portions of photographs) are entitled to copyright progection. Thus, the court explained that a photographer “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The court noted that it is these elements — the ones created by the photographer – that are entitled to copyright protection:
Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (”Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).
There is nothing in the AP photographer arranged or posed in his photograph that Fairey copied in the Obama Hope poster. The image is a stock wire service photograph shot in the midst of a presidential campaign. It is so unworthy of note that it was many months after the Obama Hope poster became a sensation that anyone even identified the photograph as Fairey’s original source (and it was neither AP nor the photographer who made that identification). In short, Fairey’s poster duplicates nothing that was original enough in the first place to merit copyright protection. There is likely no copyrightable material in the photograph, in fact, that he could have infringed.
ADDENDUM: Brian Ledbetter suggests in the comments that my argument is that “none of the elements in the AP photograph are ‘copyrightable.’” That is certainly not what I am arguing. Rather, I am arguing that none of the elements Fairey copied in his poster were copyrightable.
Fairey’s poster was not a copy of the photograph. It used one element, the angle of Obama’s face, and changed everything else from the photograph. I doubt the choice of the angle was a creative choice on the part of the photographer. First, I would be surprised if the angle was not forced on him by the place the photographic pool was required to be, and, second, the angle is so generic that I can hardly imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply painted a copy of the photograph, I’d agree that it was an infringement. But he didn’t. He changed everything except the angle of the head. And surely the choice of subject matter for the photograph was not a creative one.
As William Patry points out in his treatise (Patry on Copyright, section 3:18) “In most cases, the photographer chooses a particular subject and either poses the subject or selects the angle and lighting from which to best capture the subject.” But that often is not the case. In Time, Inc. v. Bernard Geis Associates, Abraham Zapruder, a Dallas dress manufacturer, was taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. In a challenge to the pictures’ copyrightability, the court rejected the defendant’s claim that the photographs were “news,” observing that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.”
What is copyrightable in the AP photograph includes things like “the selection of lighting, shading, timing, angle, and film.” Leigh v. Warner Bros., Inc, (11th Cir. 2000). As I wrote above, the only one of these elements one could conceivably say that Fairey copied is the angle, and that angle is so ordinary a perspective and so unlikely to have been chosen specifically by the photographer that I cannot imagine what Fairey copied that was copyrightable.
ADDENDUM II: Fairey was interviewed by Terry Gross on Fresh Air. From the interview:
Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.
And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.
February 27th, 2009 at 8:44 am
Hrm – While I agree in theory with what you’ve said, I do think that your suggestion that none of the elements in the AP photograph are “copyrightable” would have an extremely dramatic impact on the wire service photography industry as a whole.
If wire service photos are not “original” enough to be copyrighted, then how can they be protected from blatant infringement? (Yeah, I know – the type of stuff the AP accused me of doing.) Do we maintain the hundred-year-old “Breaking News” law that you discussed the other day? Or do we declare outright that wire service photography is not a commercial industry “worthy” of protection?
Interesting questions, at the very least.
Regards,
Brian
February 27th, 2009 at 11:37 am
Thank you for the insightful updates, good sir. It definitely makes sense, but I do think that it could lead to some pretty gray lines when defining what wire photographs are “protectable.” Oh, and it goes without saying that our mutual friends at the AP would object most strenuously to such thought processes. Which isn’t necessarily a bad thing!
Regards,
Brian
February 27th, 2009 at 3:49 pm
The photograph is original enough to be copyrighted if the photographer chooses the camera, the lens, the film, the shutter speed and aperture, and the pose. Maybe even the angle.
The thing is Fairey took nothing of those things from the photo except the stencil of an outline of Obama, and that angle and that subject are hardly copyrightable in the past few years.
Why do you think no one even noticed the resemblance between the photo and the poster for months? Did the photo have ANY impact. Compared to the poster, about as much as I have compared to Larry Lessig. No, I think less even than that.
February 27th, 2009 at 6:47 pm
In Blanche v. Koons the court says that the elements of the photograph used by Koons were not the elements of the photograph representing Blanche’s creative contribution. The same seems to go in Fairey’s favor.
What then would the copyrightable elements of documentary photography be? The documentary photographer’s decisions and creativity and skill are largely about being in the right place at the right time. Does that create original work?
March 3rd, 2009 at 3:06 pm
Professor Friedman,
With all due respect, you are misreading the case law in question. You are interpreting a ruling of first impression dealing with unique technologies, one to be applied prospectively to such new technologies as the digital models, in a way that would apply it retrospectively to areas of well-settled copyright law.
The Meshwerks case is a narrow ruling meant to apply to the evaluation of copyright claims for non-traditional elements. It wasn’t an issue of the photos, it was the digital models.
Meshwerk assumed the models were copyrighted through the action of traditional copyright law. In such a schema, when an independent contractor provides an image, unless it is explicitly noted contractually as “work for hire,” the copyright remains with the contractor (photographer/cinematographer/videographer). Meshwerk loses because they didn’t contractually establish continued ownership of the models by incorporating a specific limited license that vested the copyright and usage rights (other than those licensed on a limited basis to Toyota) solely with Meshwerk.
To show the weakness of your analysis, one can consider two examples:
1) If the image you show is, as you say, a digital Solara positioned on a pre-existing photo, who holds copyright to the photo it was positioned in? Certainly, adding a digital model, does not transfer ownership of the original copyright to Toyota… If we used your reading, it would seem to tell us that Toyota could take any photo insert the Solara model, and summarily dispose of the underlying copyright in the original image. That’s just laughably ludicrous. It would mean that there was essentially nothing copyrightable in a photograph. All I’d need to do is add some computer generated text to an image I purloin from the net, and I’m now safe from claims of infringement.
2) Someone holds the copyright to the final image of the Solara on its background. It does not exist in a legal vacuum. There are both trademark and copyright issues at play in that final image. If the court’s analysis were to be taken as broadly as you opine, we’d need to question whether anyone could indeed hold copyright to that final image or almost any image. In fact, we’d have a world where almost no-one’s vacation images would belong to them (through lack of the kind of creativity through design you cite). That’s clearly not the case.
Going further, your reading of “Rogers v Koons” isn’t worthy of a First Year, much less a professor of law. In point of fact, you are quoting “Rogers v Koons” to establish a lack of copyrightability here, when in fact, that case did exactly the opposite with regards to Mr Koons. More appropriately, you should look at the later “Blanch v. Koons” and “Campbell v. Acuff-Rose Music” for guidance. Those cases dealt with whether the new creation was “transformative” enough in its use of the already copyrighted and trademarked materials to constitute an independent work in which the original copyrights were no longer in force. The important principle at play is the way the two Koons cases, along with Meshwerks and Acuff-Rose help define the boundary of copyright – what “transformative” is taken to mean and who holds copyright to which elements.
March 3rd, 2009 at 5:20 pm
Keith, my entire point was whether the models were sufficiently creative and original to be protected by copyright. Meshwerks claimed they were and therefore that Toyota’s later use of the models in advertisements other than the one for which they designed were infringing uses.
My point in using Meshwerks was to point out that merely reproducing reality in a new medium is not creative or original enough to merit copyright protection. While a lot of photography is copyrightable (because the courts consider the photographer’s choices of camera, film, shutter speed, lens, and posing) creative acts sufficient to merit copyright protection, a mere photographic reproduction of a presidential candidate the photographer didn’t even pose is not copyrightable. And that’s ALL Fairey appropriated, and he didn’t just copy it either.
In short, what Fairey used has no copyright protection.
If you’d paid attention, you also might have noted that the reference to Rogers v. Koons was by the court, not by me.
Finally, the photo was a joke you apparently don’t know enough about art to get. As Wikipedia describes Rene Magritte’s famous painting, The Treachery of Images: the painting “shows a pipe that looks as though it is a model for a tobacco store advertisement. Magritte painted below the pipe “This is not a pipe” (Ceci n’est pas une pipe), which seems a contradiction, but is actually true: the painting is not a pipe, it is an image of a pipe. It does not “satisfy emotionally” – when Magritte once was asked about this image, he replied that of course it was not a pipe, just try to fill it with tobacco.
The photo of the Solara is not only not a Solara because it’s a photo of a Solara, it’s also not a Solara because the photo is of a digital model of a Solara.
March 4th, 2009 at 3:25 pm
In my opinion the elements that Shepard Fairey took from the original photograph were not under the control of the photographer and are very analogous to unprotected “Scenes A Faire.”
A news photographer does not have much control over the lighting, posing, background elements, etc. of his or her subject. To do so would undermine the factual nature of their endevour. Arguably even the framing or cropping of the image, focus to a limited degree, angle from which the photo was taken, and exposure are all constrained somewhat by the very functional and factual nature of the photo. In other words, there wasn’t much of anything arty about it.
In this specific situation, I like to call those elements copied in the Hope portrait “Scenes A Fairey”.
So, it would be nice of anyone who uses the the new phrase I’ve coined “Scenes A Fairey” to properly attribute it to me. After all, it is my creative work to which I would like to claim intellectual property rights. And you all can assign your own meaning to my creation and repeat it a few hundred thousand times elsewhere at your own expense as part of your creative works to make it into something. But remember to attribute the phrase to me when it makes its way into the dictionary.
Meanwhile, my creativity is spent, so I’ll sit back, relax, and just wait for someone to make something of my creation… (Yes, this is my attempt at being ironic.)
And remember, the AP wants you to OBEY copyright!
March 4th, 2009 at 11:50 pm
I would call them Fairey Scenes.
I hereby acknowledge this term is my remix of Rumspring’s original coining of the term Scenes A Fairey. My use of part of his creation, with those parts rearranged as radically as is possible, is permissible pursuant to the license he expressly granted to use of his term if his authorship is acknowledged.
By stating the above, however, I am not waiving my rights to assert copyright protection over my term. It’s remixing and rearranging of the parts of Rumspring’s creation is so “transformative” that my term must be considered an original creation in and of itself.
THIS IS NOT A CONTRACT
March 5th, 2009 at 5:42 pm
[...] so much on the internet. Shoot me if I ever refer to myself as a super lawyer. But how can I? A recent commenter wrote that someting in a recent post of mine wasn’t “worthy of a First Year, much less [...]
March 9th, 2009 at 4:44 pm
[...] to begin his work. First, I think the poster is a fair use of the image, and, second, I think the poster doesn’t take anything that can be copyrighted from the [...]
March 13th, 2009 at 4:33 pm
[...] strongly that Shepard Fairey’s use of an AP photograph to create his Obama Hope poster does not infringe the pohotograph’s copyright and that Fairey has been the target of frequent criticism in the art community regarding his [...]
March 20th, 2009 at 8:04 pm
Id say youre ignoring the photos “right to life” so to speak. That photo is wonderful and it captures exactly what fairey thinks he captured in his artwork. The fact it was taken in a second from a pool means nothing, it has a right to be admired reguardless of its source, it could have been taken by a monkey and it would still be a great pic. Faireys efforts mean nothing, hes basicly vandlised the pic because you cannot improve on perfection.
March 20th, 2009 at 9:28 pm
Matt,
I suppose it’s in the eye of the beholder, but I don’t buy your characterization of the photo or its comparison to Fairey’s image. No one even recognized the original source of Fairey’s poster for months. Perfection with a life of its own, I would think, would’ve been more noticeable. Second, the fact the photo is of a figure so well known is part of what makes it less “original” in the eyes of the law. Is it really any more “perfect” than the photos here http://www.globalresearch.ca/index.php?context=va&aid=11908 or here http://www.globalresearch.ca/index.php?context=va&aid=11908 or here http://henryjenkins.org/rolling_stone_obama.jpg or here http://obamarama.org/wp-content/uploads/2007/05/michelle-obama.jpg you get the idea)?
Most importantly to me, I cannot imagine the poster having anything like the same impact if you substituted the photo for Fairey’s version of the image.
I am not trying to belittle Garcia’s skill. But he didn’t give the image the value that Fairey gave it.
April 8th, 2009 at 4:08 pm
just because you added basil, or pepper to the eggs it doesnt mean you created something original, you just added your twist on to it. Its still just eggs.
I dont find anything revolutionary or new about shepards work, It is appealing and I can see why its succesful today.
At my school ive seen work of students who were “influenced” by sheperd fairy. Theres nothing really distinctive, you coulda told me they were faireys work and I would have believed it.
On the otehr hand ive seen people paint in Van gogh style, or make logos a la Sal Bass. But you can stil tell the difference.
Work all looks the same now because its made by machines, even thou we give it the instructions it still a machine, we arent allowed the freedom or uniquenes that traditional painting would give us, thats why its so had to be original or fresh now we are limited by the capabilities of hte program, unlike in traditional painting where the skys the limit and hters a more direct conection to your imagination and creativity.
April 9th, 2009 at 10:24 am
Jorge
I wouldn’t think it would be difficult to do work in the style of Mondrian or Warhol (rather than Van Gogh) or any number of other well regarded artists and pass your “test” of being able to “tell the difference.” The fact a style is easy to reproduce doesn’t make it generic. Just adding “your twist” can be superficial or it can create a deep resonance that wasn’t there before. Would the Obama Hope poster have been the same with the original photo rather than Fairey’s “twist” (as you call it). I find it hard to believe, and even you acknowledge Fairey’s work is appealing. I don’t think you have to be “revolutionary” to be transformative.
And the fact is we’re going to have to begin to locate creativity somewhere else other than the skill of a Renaissance painter or a master musician. Machines are giving skills to everyone that were once reserved for a select few. Photography did it over 150 years ago. You’re not suggesting photography can’t be creative, are you?
July 11th, 2009 at 2:07 pm
[...] Garcia, who actually shot the photo at issue in the lawsuit between Shepard Fairey and the Associated Press — the photo that allegedly was the source of Shepard Fairey’s Obama Hope poster — [...]
January 11th, 2010 at 11:06 am
[...] that AP chose the photo it decided ultimately to publish. One might think these allegations reduce the extent to which Garcia can claim the shot was one so much of his own choosing. He was assigned to take the shots he took, he took a lot of them, and AP, not Garcia, chose the [...]