Why Shepard Fairey’s deceit should not stop the court from finding that the Obama Hope poster did not infringe the copyright in the photo it was based on.

There has been a lot of discussion (here, for example) about whether Shepard Fairey’s deceit in the course of discovery in his lawsuit with the Associated Press and photographer Manny Garcia constitutes “bad faith” that will tilt the fair use analysis against him and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo that Garcia shot.

I don’t think so, and the discussion of the issue of an infringer’s bad faith in NXVIM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004) helps illuminate why. The Second Circuit Court of Appeals (whose decisions are binding on the court deciding Fairey v. AP) in NXVIM affirmed the lower court’s denial of a preliminary injunction on the grounds that NXVIM, the producer of a “business training seminar,” had been unable to show it would likely prevail on its claim that the defendants had infringed NXVIM’s copyright in a training manual for one of their online courses. The defendants had posted to the internet quotations from the manual in support of their analyses and criticisms of NXVIM’s activities. NXVIM argued to the Second Circuit that the lower court had inadequately considered the defendants’ “bad faith” in obtaining the manual from a former participant in the seminar rather than by purchasing it, as anyone could do.

The majority did in fact state that “it was error for the district court not to have fully and explicitly considered” the defendant’s bad faith, which presumably included inducing the former course participant to breach a confidentiality agreement by disclosing the course materials to them. The court did not reverse the district court’s decision, however, because the bad faith did not alter the conclusions that the use was a non-infringing one. In short, according to the majority, a defendant’s bad faith is not “dispositive” on the fair use question and consideration of all of the factors — and in particular the first, the “purpose and character” of the defendants’ use of the copyrighted material — was so great: “the first factor still favors defendants in light of the transformative nature of the secondary use.”

It is difficult to get a handle on how much weight, if any, the majority would therefore give to bad faith in the fair use analysis. It would have some weight, the majority seems to indicate, but not that much. Judge Dennis Jacobs‘ concurring decision is even more illuminating, however, and gives good reason to believe that the true weight to be given bad faith as a factor independent of the rest of the fair use analysis should be zero. After reviewing the rather recent history of the role of a defendant’s bad faith in fair use analysis, Judge Jacobs states rather bluntly:

I think that the secondary user’s good or bad faith in gaining access to the original copyrighted material ought to have no bearing on the availability of a fair use defense. Fair use defines the outer boundary of copyright protection, and that perimeter should be drawn by reference to the central objectives of copyright. Copyright itself would be distorted if its contours were made to depend on the morality and good behavior of secondary users.

To support his reasoning, Judge Jacobs pointed out first that the use of bad faith in fair use analysis had its origins in the Supreme Court’s 1985 decision in Harper & Row v. Nation Enterprises, in which the Court held that the Nation magazine had infringed Harper & Row’s copyright in the memoirs of former President Gerald Ford when it published a chapter from the memoir in the magazine in advance of the publication of the memoir. As Judge Jacobs makes clear in NXVIM, the fact the Nation obtained the manuscript illicitly tipped what was generally considered a close case in favor of the publisher.

One might question in retrospect precisely how close a case Harper & Row really was. The chapter the Nation published was the chapter Ford wrote about his pardon of the disgraced Richard Nixon. It seems quite likely that many people who would have purchased the book for that chapter alone (it was clearly the most noteworthy event of Ford’s political career) would have purchased the magazine and therefore not bothered with the book. In other words, the infringement very directly robbed the copyright holder of a significant amount of value that the copyright holder had every reasonable expectation it would derive from the sale of the book.

But Judge Jacobs points out too that in its post-Harper & Row decision in Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court backed off the suggestion that bad faith was part of the fair use analysis, stating that the core of the fair use analysis must remain on (1) the transformative purpose of the appropriating work and (2) whether the appropriating market “usurps a market” that belongs to the copyright holder:

Campbell’s footnoted discussion questioning the pertinence of good faith reinforces the entire thrust of the decision, which requires that fair use be assessed primarily in light of whether the secondary work quotes the original with a transformative purpose and whether it usurps a market that properly belongs to the original author — issues as to which the defendant’s good faith in accessing the plaintiff’s original work does not matter.

In other words, according to Judge Dennis, “the fair use defense exists to encourage the creation of original works that do not ‘supersede the objects’ — and thus the market value — of the original. Nor is fair use a doctrine a privilege we confer on people we like. It is not ‘earned by good works and clean morals; it is a right — codified in § 107 and recognized since shortly after the Statute of Anne — that is ‘necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of science and the useful arts….”‘ Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (quoting U.S. Const., art. I, § 8, cl. 8).”

Thus, while someone’s bad acts may subject him to criminal or civil prosecution on a number of grounds, they should not bear on the fair use analysis:

A person who acquires the original work by crooked or unsavory means may expose himself to all sorts of civil claims and criminal charges; but the question of fair use itself should be decided on the basis of the transformative character and commercial effects of the secondary use. If the use satisfies the criteria of § 107 [of the Copyright Act], it is fair because it advances the utilitarian goals of copyright.

Shepard Fairey’s deceit in the course of discovery in the lawsuit has been uncovered, and it can be punished through civil sanctions or even criminal prosecution. But it should not affect the court’s determination of the artistic legitimacy of the Obama Hope poster. “[C]opyright is not about virtue; it is about the encouragement of creative output, including the output of transformative quotation. Its goals are not advanced if bad faith can defeat a fair use defense.” Nor is “good faith” a factor in fair use determinations. Willing as you may be to pay a license fee, if the copyright holder refuses to sell you a license and your subsequent unauthorized use is infringing, your willingness to pay is of no credit to you in the fair use analysis.

In short, as Judge Dennis so cogently puts it, fair use is central to the copyright regime; it is not a tolerated exception to the copyright holder’s domain:

Fair use is not a permitted infringement; it lies wholly outside the domain protected by the author’s copyright.