Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Fairey’s Obama Hope poster copied nothing from Garcia’s photo that could be copyrighted.
I’ve made clear my view that Shepard Fairey’s Obama Hope poster does not infringe the copyright in the photograph that Fairey used as the source of the image because it is so “transformative” of the image — imagine the impact a poster of the original photograph with the word “Hope” emblazoned on it might
have had and then consider the question. Remember, too, that Manny Garcia, who took the photograph, did not recognize that his photo was the source of the poster’s image for months after the poster rose to prominence; in fact, someone else made the identification.
I’ve also, however, contended that the poster is not infringing because it did not appropriate elements of the photograph that can be considered sufficiently original to even be protected by copyright. And now I’ve come across a case that applies precisely this thinking to a very similar dispute.
In Reece v. Island Treasures Art Gallery, Inc., 468 F. Supp. 2d 1197 (D. Hawaii 2006), the court ruled that a stained glass artwork entitled Nohe did not infringe the copyright in a photograph entitled “Makanani” despite the fact both works depict, from the same angle, a woman kneeling on Oahu’s Kailua beach performing an ‘ike motion from the hula noho (sitting) position. The two images are pictured above.
The court recognized that some parts of the photograph could be copyrighted, but only those that are the result of the photographer’s creative decision-making:
“[T]he creative decisions involved in producing a photograph may render it sufficiently original to be copyrightable and [courts] have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectible elements of a photographer’s work.” Los Angeles News Serv. v. Tullo, 973 F.2d 791, 794 (9th Cir.1992) (citation and quotation signals omitted). The court concludes, for the purposes of the instant motion, that [the] photograph is copyrightable, although elements derived from the public domain or otherwise unprotected by copyright cannot serve as the basis of [an infringement] claim.
Another way of putting it is that “[t]he protectable elements of a photograph generally include lighting, selection of film and camera, angle of photograph, and determination of the precise time when the photograph is to be taken.” (citation omitted). But the stained glass window of the dancer in the identical position did not appropriate a sufficient amount of the original elements of the photograph because the stained glass image has none of the detail of the person or of the background of the photographer and the sepia tone of the photograph is so very different than the “”vibrant colors” of the stained glass:
Although the position of the dancer in the ‘ike motion is common to both artworks and both are set on Kailua beach, they cannot be described as substantially or virtually identical. The appearance of the dancers is different; notably, the absence of detail in the stained glass. The dancer represented in [the stained glass image] has no facial features, hand details, or muscular differentiation, but simply shows the outline of the body. The mountains and ocean dominate the upper half of the stained glass, but not the photograph. The dancers’ hairstyles are notably different lengths and shapes.
Finally, the sepia tone of the photograph is markedly contrasted by the vibrant colors of the stained glass.
One can easily see, I think, how this reasoning is applicable to the comparison between Garcia’s photograph and Fairey’s poster. While the position of Obama’s face is virtually identical in both, Fairey’s image has none of the detail the photograph shows from the face, Obama’s suit or the background shown in the photograph. In fact, the poster entirely changes these details by transforming them into a stylized combination of red, white, and blue. Moreover, it is plain the colors of the photograph are in marked contrast to the colors of the poster.
August 14th, 2010 at 3:31 pm
The common arguments to this case always stem on whether the “copyrightable elements” are present in this image, and people often refer to other works and case law that address the same objective.
The real argument, however, is quite different: what was the actual source material used? On one hand, if Fairey’s work was “inspired” by the photo, all these arguments are proper. However, if his work was actually derived from the physical work, then the arguments aren’t quite the same. If one takes a physical piece and modifies it, they may have the right to copyright the new derivative work, but the original copyright holder still maintains the master rights.
Now comes the question of what the use is. Is it a *commercial* use or other form that would require the consent of the original copyright holder? Or is it artistic, where no consent is required?
If it’s merely for artistic display, as is often the case with Richard Prince’s works (where he copies works of other photographers from the physical originals), then this is permitted under Fair Use. However, the Obama photo that is that subject of argument here, the question is not so cut and dry: there has been many uses of this work that should (according to copyright law) require the consent of the original copyright holder. If Fairey’s work was merely “inspired” by the original photo, no consent would be required. But, if he used that actual photo to produce the new work, then consent would technically be required, or would be considered an infringement.
dan
August 14th, 2010 at 5:51 pm
Where do you draw the line between “inspiration” and “derivation”? If he copied it freehand would it be “inspired by”? What real difference does it make if he traced it from a projection of the original image?
Shouldn’t Fairey’s work — not the means by which he achieved that work — be the thing we judge to be infringing or not? And, be honest — is there any way in the world you could conceive of the poster having anything resembling the impact Fairey’s poster had if it had used the image of the photo instead of Fairey’s re-working of the photo? And, assuming the answer is “no,” doesn’t that mean Fairey’s reworking of the photo was truly “original” (or, in the jargon of copyright law, “transformative”)?
And can you really tell me that Richard Prince’s work, which sells for prices many times that of Shepard Fairey’s, is not “commercial” in the same sense Fairey’s is merely because it’s meant to be hung on a wall rather than used in a political campaign. I might argue that the political nature of Fairey’s Obama Hope poster makes it even more protected than Prince’s purely “artistic” expression.
August 15th, 2010 at 2:49 am
Let me preface this by saying that if this were such an open-and-shut case, it wouldn’t have dragged on this long. Indeed, there are cogent arguments from well-studied legal minds on both sides of the debate. Copyright and First Amendment often run up against one another, and it’s nearly impossible to protect the rights of both sides.
I also do not wish to weigh in on what I believe _should_ be the outcome. Rather, I am trying to present variables I think courts would consider more prominently in their decisions than the types of points commonly discussed in open forums.
Judicial decisions are often based on a weighing of many facts and circumstances, not necessarily “where lines are drawn.” That’s where the importance of your question comes in: what’s real difference does it make if he traced it from a projection of the original image? In my mind, a big difference… when argued in court. In the music industry, “mash-ups” are deemed unambiguous infringements because actual samples of copyrighted works are used, whereas songs that sound “similar” to other songs are more ambiguous and “lines are gray,” thereby requiring deliberation.
By comparison, if it turned out that Fairey merely applied a new, unique creative “tracing” method based strictly on his observation and memory, I think the thrust of this discourse would change a lot, and you’d hear virtually nothing from the otherwise vocal photo trade associations.
Another example of why it’s relevant to ask whether Fairey’s work is based on the original is Getty’s claims of copyright ownership of “cleaned up photos” of public domain works. (I cited this example on my blog.) Did Getty merely apply a non-original mechanical process, or was there some creativity in the final product? While courts do not recognize “sweat of brow” as being copyrightable, Getty’s tasks are not a foregone conclusion as such–it’s up for debate. Did Getty merely apply series of dust-removal techniques that do not constitute originality? Or, did the artist also apply creative skill in enhancing contrast control, applying sharpening techniques and other qualities that made the works “more desirable and, therefore, licensable?” (By way of example, Ansel Adams did much the same thing to his own early negatives to create the editions that we all are familiar with today. Are these not unique from their originals that few people ever wanted to purchase at the time of their original production?)
If Fairey had NOT used the original image to create the derived work, then it bypasses a great number of considerations by the courts.
Lastly, an infringement must also consider the question of ‘use.’ If Fairley’s work were merely a piece of art hanging in a museum or an art gallery, courts have deemed this as Fair Use, regardless of the price that it may command, or even whether he copied it directly from the original. (“Commercial” use is not measured purely by monetary consideration.)
In this case, Fairey’s use is one that involve political statements and support for a political candidate. while this is certainly a protected form a speech, it has never been regarded as a form that supersedes consent from the original copyright holder for a work, even if there is no monetary exchange.
Again, I don’t have a position on what *should* be the outcome, but I do think these are more relevant considerations than what most people talk about.
August 21st, 2010 at 5:03 am
[...] a lengthy reply on his Photography Business blog to law professor Peter Friedman’s article Ruling Imagination: Law and Creativity which asserts that Fairey had copied nothing that could be copyrightable. Both pieces are worth [...]