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.