The Korean War Memorial Postage Stamp Photo Case: I was way wrong! But I still think I was right, and I think the case is bad for art.

Consider me dumbfounded, or just plain dumb. I thought the copyright infringement case brought by the sculptor of the Korean War War Veterans Memorial (above, left) against the U.S. Postal Service for the use of the memorial’s image in a postage stamp (above, right) was an “easy case” — that the stamp constituted fair use of the image of the memorial because, among other things, I thought the image was sufficiently “transformative” of the memorial itself to constitute a creative work in its own right.

But today, in Gaylord v. U.S. (pdf),the U.S. Court of Appeals for the Federal Circuit reversed the lower court’s holding and ruled that the stamp infringed the sculptor’s copyright in the memorial (pdf). Whereas I thought the image on the stamp was transformative because, among other things, I wouldn’t have even known it was an image of a sculpture rather than a stylized image of actual soldiers unless I’d read otherwise, the court held that the purpose and character of the image on the postage stamp and the purpose and character of the sculpture were identical: “to honor veterans of the Korean War.” Slip op. at 9. The court rejected the reasoning I had advanced, reasoning as follows:

Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message.  Slip Op. at 11.

I am stunned, and I find the court’s limitation of of “transformative” work to work that “comments on or criticizes” the work it appropriates without real rationale, but the odds are long the case will end up before the U.S. Supreme Court. It might be a good case for the Supreme Court to weigh in on — the ease and low cost of copying and disseminating images in this day and age makes any and every sort of appropriation art a contentious and wide open field, but I suspect the Supreme Court would prefer to let these issues simmer in the lower courts for some time before it chooses to weigh in on the question. In the mean time, I have to bow in humility to Donn Zaretsky, with whom I engaged in an online debate last summer on this particular case in particular and on the issue of the photographic appropriation of public art in particular. Donn was right, and I was wrong. I suspect, though, that this isn’t the last word we’ll hear on this type of case.

Addendum: The more I think about the decision in Gaylord, the more wrong-headed I believe it is, and the more I think it falls prey to a dangerous proclivity to commercialize every last aspect of our culture, including art. To limit “transformative” uses of copyrighted materials to uses that comment upon or criticize the copyrighted works they appropriate is to eliminate the use of the kind of appropriation as source material that is the very foundation of art. Copyrighted art works become part of the cultural language. A work that has impact in a culture takes on a meaning of its own. That cultural meaning then becomes part of the language of art, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that art needs to use in order to be art. To remove copyrighted works from this language in the absence of payment for their use would substantially damage our culture. By the time a work of art becomes available for the free use of other artists as part of the public domain — the duration of the artist’s life plus 70 years — it no longer will have any resonance worth exploiting.

Moreover, it is, I think, strange that the court in Gaylord reasoned that the photograph of the sculpture was not sufficiently original in its own right to be transformative despite what I referred to above — the fact that one would not likely even spot that the photo was of the the memorial, much less a sculpture — because that character of the photo was merely the product of the fact the photo was shot on a snowy day:

To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm—rather than on a warm sunny day—does not transform its character, meaning, or message. Nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude. Slip op. at 11.

This reasoning is strange because, as I have pointed out before, photography itself is protected by copyright as “original” — rather than being rejected as mere transmission of the “facts” it conveys — precisely to the extent it reflects the photographer’s choices regarding the framing of the image, the choice of background and lighting, and the resulting mood:

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). Meshwerks v. Toyotoa Motor Sales, Inc. ( 10th Cir. 2008).

I am not sure how one reconciles the idea that photography constitutes original work entitled to copyright protection with the notion that the elements of the art that give it originality — the elements that are the result of the artist’s choice — are merely “nature’s decision” and therefore not an element that make a work sufficiently original to be entitled to stand on its own without paying its way. I also think that the decision is vacuous as an artistic matter.

Finally, the decision plainly has significance with respect to the claim by the Associated Press that Shepard Fairey’s Obama Hope poster infringed Manny Garcia’s photo of then-candidate Obama. I have stated again and again that I think the Hope poster is a non-infringing fair use primarily because of the way it transforms the photo and stands on its own as a creative work. It was many, many months before anyone even identified which photo was Fairey’s source material; even Garcia himself, despite seeing the poster again and again during those months, did not recognize that the poster was derived from his own photo! But there’s no doubt in my mind that the poster does not constitute a comment or criticism of the photo. Under the Federal Circuit’s reasoning, therefore, Fairey’s poster infringes the photo’s copyright. Fortunately, however, the Federal Circuit’s decision is not binding on the United States District Court for the Southern District of New York, where AP v. Fairey is pending, so that court will be left to its own judgment as to the scope of appropriation art will be permitted in this age of digital copying and transmission.

Here’s hoping, on my part, that the court in that case comes to a different decision. Art is a language that draws on and builds from itself. To reduce the language’s components to commodities would be to commercialize one more part of our lives, monetize one of the few things we have left that have not been reduced to the equivalent of cold cash.

Second Addendum: John E. Grant has a very interesting take on the Gaylord decision – he reads the decision as one that focuses on the stamp rather than the photo the stamp consists of:

In reversing the lower court decision, a 2-1 appellate majority ruled that the trial judge was wrong to focus on the transformative aspects of the photograph. Instead, it held that it must analyze the purpose and character of the stamp. The appellate majority then found that the purpose of the stamp was the same as the purpose of the sculpture: to honor Korean War veterans.

It’s an interesting thought, but I’m not sure I entirely buy it. If the photo itself was fair use, then I do not understand why the photographer did not have the right to license the use of that photo to the government for use on the postage stamp. Further, as Grant acknowledges and as I pointed out above, the court reasoned that although the image on the stamp “altered the appearance of the sculpture, . . . the alterations [were attributable] to mother nature, not the photographer and . . .  ’nature’s decision to snow cannot deprive Mr. Gaylord of an otherwise valid right’ to his copyright.” Again, I cannot understand why the very elements that constitute the creative elements of a photograph can in this fair use analysis be passed off as merely “nature’s decisions.”

Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

AP shoots itself (twice) in the Copyright Wars.

The Associated Press occupies a controversial place in the so-called “Copyright Wars,” and it certainly isn’t making many friends anywhere in recent news. First, on December 31 of last year, AP filed its Amended Answer to Complaints, Crossclaim, Counterclaim., and a cross claim against Mannie Garcia. In that document, AP contends that it, not Garcia, owns the copyright in the photograph Garcia took of then candidate Obama that Shepard Fairey subsequently used as the source material for the (in)famous Hope poster. AP’s contention rests on the assertion that Garcia was acting within his the scope of his duties as a staff photographer for AP when he shot the photo and that it therefore constituted a “work for hire.”

There are, I think, two sets of allegations in AP’s latest filing that are interesting in terms of whether Fairey’s use of the photograph as source material for the poster constituted a non-infringing fair use. First, AP states that Garcia was sent to the event at which he shot the photo by AP in order to take photos such as the disputed one. Second, AP states that Garcia sent “several” of those photos to AP and 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 one that fit its purposes best.

AP also goes right after Garcia, accusing him in its counter-claim of committing fraud in registering his own copyright in the photo on the grounds that AP’s ownership of that copyright under the work for hire doctrine was so plain that Garcia knew he at the time he filed the copyright registration that he wasn’t entitled to do so. It might not be the only accusation of dishonesty hurled at Garcia in this case.

Meanwhile, AP, of course, has been quite vocal about voicing its contention that “news aggregators” infringe AP’s copyrights on a regular basis. No matter your view on the legitimacy of the infringement claim, there’s lots of reason to believe that AP’s stance is bad business. Google seems to have been a principal target of AP’s complaints, and yet shutting Google off (something, incidentally, AP could do at any time) would seem likely to drive traffic away from AP’s stories.

Well, Google seems to have called AP’s bluff. The Guardian reports that “it has become apparent that new Associated Press stories are no longer appearing on the site, which has hosted them since 2007. Google hasn’t added new AP content since December 24.“

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

When is a copy an original?

Behind all the shouting about Shepard Fairey and the Obama Hope poster, there is, as I’ve emphasized again and again, a real failure to contend with our conceptions of creativity and originality. Hollywood, of course, is stuck in a rut of remakes so deep that I’m seeing remakes of films I’ve already seen as an adult. There isn’t much originality there. But then you look at something seemingly so simply as Douglas Gordon’s 24 Hour Psycho (1993), a super slowed-down version of Alfred Hitchcock’s 1960 film Psycho, and you have to wonder whether it isn’t a whole lot more original then the coming remake of A Nightmare on Elm Street. Gordon explains his film as follows:

“24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation… it wasn’t a straightforward case of abduction. The original work is a masterpiece in its own right, and I’ve always loved to watch it. … I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me…”

Painting people whose images are protected — Alabama football, Tiger Woods, and Obama

The Tuscaloosa News reports that a decision is expected soon in the University of Alabama’s lawsuit against sports artist Daniel Moore. As the newspaper explains, the university “sued Moore for trademark violations in March 2005, alleging he painted scenes of Crimson Tide football games [such as the one at right] without permission from the university and reissued previously licensed prints without paying royalties. The university is seeking back pay for more than 20 paintings and wants Moore to license any future paintings.”

Although the decision is by no means binding on the court deciding the Alabama case, a lawsuit filed in 2000 by Tiger Woods and ETW Corporation, Wood’s licensing agent, against the artist Rick Rush might be illuminating. The focus of the Woods lawsuit were a group of Rush’s prints depicting Woods’s victory at the 1997 Masters. Woods sued to protect “his name and his image under right-of-publicity and trademark laws.” Rush, like Moore, argued his prints are protected by the First Amendment. The U.S. District Court and the U.S. Court of Appeals in Cincinnati (6th Cir.) agreed with Rush.

The Sixth Circuit’s decision is illuminating, not only with respect to the lawsuit between Alabama and Moore, but also with respect to the dispute between the AP, Manny Garcia, and Shepard Fairey. The court explained in reaching its decision that, like Andy Warhol’s paintings of celebrities, Rush’s paintings were sufficiently “transformative” to be entitled to First Amendment protection:

When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity….

Accordingly, First Amendment protection of such works outweighs whatever interest the state may have in enforcing the right of publicity. . . . [I]n Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001)] the California [Supreme] [C]ourt []stated the test as follows: “Another way of stating the inquiry is whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”

. . . citing the art of Andy Warhol, the court noted that even literal reproductions of celebrity portraits may be protected by the First Amendment.

“ Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself…. Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence.”  Id. at 408-409, 106 Cal.Rptr.2d 126, 21 P.3d at 811 (citations and footnote omitted). . . .

The evidence in the record reveals that Rush’s work consists of much more than a mere literal likeness of Woods. It is a panorama of Woods’s victory at the 1997 Masters Tournament, with all of the trappings of that tournament in full view, including the Augusta clubhouse, the leader board, images of Woods’s caddy, and his final round partner’s caddy. These elements in themselves are sufficient to bring Rush’s work within the protection of the First Amendment. The Masters Tournament is probably the world’s most famous golf tournament and Woods’s victory in the 1997 tournament was a historic event in the world of sports. A piece of art that portrays a historic sporting event communicates and celebrates the value our culture attaches to such events. It would be ironic indeed if the presence of the image of the victorious athlete would deny the work First Amendment protection. Furthermore, Rush’s work includes not only images of Woods and the two caddies, but also carefully crafted likenesses of six past winners of the Masters Tournament: Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagen, Bobby Jones, and Jack Nicklaus, a veritable pantheon of golf’s greats. Rush’s work conveys the message that Woods himself will someday join that revered group. . . .

We find, like the court in Rogers, that plaintiff’s survey evidence, even if its validity is assumed, indicates at most that some members of the public would draw the incorrect inference that Woods had some connection with Rush’s print. The risk of misunderstanding, not engendered by any explicit indication on the face of the print, is so outweighed by the interest in artistic expression as to preclude application of the Act. We disagree with the dissent’s suggestion that a jury must decide where the balance should be struck and where the boundaries should be drawn between the rights conferred by the Lanham Act and the protections of the First Amendment.

In regard to the Ohio law right of publicity claim, we conclude that Ohio would . . . [apply] a rule analogous to the rule of fair use in copyright law. Under this rule, the substantiality and market effect of the use of the celebrity’s image is analyzed in light of the informational and creative content of the defendant’s use. Applying this rule, we conclude that Rush’s work has substantial informational and creative content which outweighs any adverse effect on ETW’s market and that Rush’s work does not violate Woods’s right of publicity.

We further find that Rush’s work is expression which is entitled to the full protection of the First Amendment and not the more limited protection afforded to commercial speech. . . .

In balancing these interests against Woods’s right of publicity, we note that Woods, like most sports and entertainment celebrities with commercially valuable identities, engages in an activity, professional golf, that in itself generates a significant amount of income which is unrelated to his right of publicity. Even in the absence of his right of publicity, he would still be able to reap substantial financial rewards from authorized appearances and endorsements. It is not at all clear that the appearance of Woods’s likeness in artwork prints which display one of his major achievements will reduce the commercial value of his likeness. While the right of publicity allows celebrities like Woods to enjoy the fruits of their labors, here Rush has added a significant creative component of his own to Woods’s identity. Permitting Woods’s right of publicity to trump Rush’s right of freedom of expression would extinguish Rush’s right to profit from his creative enterprise.

The difference between Moore’s case and Rush’s principally seems to be that Moore’s painting’s are far more “realistic” than Rush’s (as the painting pictured above demonstrates). In contrast, Fairey’s Obama Hope poster is more like Warhol’s paintings of celebrities. The funny thing is that I have no doubt Moore’s paintings take more time and effort — but time and effort are not what is protected by the fair use test; rather, originality of expression is.

Make your point and move on; Fairey lied, but AP won’t establish he always does.

As I’ve said over and over again, lying messes you up. It robs you of credibility, a problem which inevitably is going to infect the decision maker’s view of the merits of your case. But when facing a liar, you can get carried away by his lies and take your eye off your own case. AP seems prone to this danger in its case against Shepard Fairey. Having established Fairey lied about knowing which photo he used in creating the Obama Hope poster, AP is now contending that Fairey lied when he claimed in January 2009 that he didn’t recall which photo he used.

I’m not sure why AP is pushing this point. First of all, it does not bear on the question of fair use at the heart of the case. Second, they’ve just been successful in establishing Fairey’s a liar. What more do they want? It will be far, far more difficult — and, as far as I can imagine, impossible — to establish that in January Fairey didn’t remember which photo he used (rather than incorrectly claiming later, after he’d reviewed his materials in connection with the preparation of the poster, which precise photo he’d used). And it’s not as if AP doesn’t have its own problems with credibility that it should make every effort to avoid.

And, again, as I wrote previously over at Remix America: Fairey and AP’s counter-accusations of illegitimate conduct are interesting but really irrelevant to the question of fair use in connection with the Obama Hope poster. So is the possibility that Garcia is lying about being angry at Fairey when Garcia first realized that the source of the poster was his photo. Of course, Garcia’s failure to realize this fact until he was told, even though he was very familiar with the poster, may be relevant — if the photographer didn’t realize the source was his photo, isn’t that some evidence the poster so thoroughly transformed the photo it stands on its own as a creative work?

But, more to the point of this post: if Garcia didn’t realize in January the photo was the source of the poster, isn’t it credible that Fairey didn’t either? AP gained ground this week in outing a lie; now it may be trying to go to that tactic too often.

Don’t lie, even if you think it doesn’t matter. Fairey, Garcia, and AP.

Now we’ve got 2 liars in the Shepard Fairey/Manny Garcia/AP lawsuit. As I mentioned the other day, there’s reason to believe Garcia is at least being highly misleading regarding his initial reaction to realizing that Shepard Fairey’s Obama Hope poster was based on his photograph. And now Fairey admits that he lied in contending that the image everyone knows he used was not the image he used. And, of course, AP is not exactly the most reliable source for legal positions on copyright and fair use.

All of these events are not particularly shocking to anyone who’s litigated for a living. Whether or not Garcia considered a lawsuit when he first realized his photograph was the source of the photo, whether or not Fairey used another photo other than the one most people had concluded he’d used, and whether or not AP is taking ridiculous positions in copyright cases are all matters that do not really bear on whether or not Fairey’s poster constitutes fair use of the photograph Garcia took (and in which Garcia and AP each claim, in opposition to one another, ownership of the copyright).

But Fairey sure didn’t help himself by lying. Nor did Garcia if it turns out he lied too. As much as a lie doesn’t change the legal question at issue in a case, there’s no denying the fact that someone’s credibility affects any court’s willingness to find in their favor.

As a lawyer, you try to tell someone never to lie. Sometimes they think you’re just “supposed to be” telling him that, and that a nod-nod, wink-wink accompanies the advice. It doesn’t.

Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some other explanation?

As much as law students and law professors want legal questions to resolve into nice, neat abstract questions, they seldom do.

Legal questions are only answered definitively by courts when those questions are necessary to resolve lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some nice, easy-to-follow rule so we can definitely predict what we can and can’t do)?

One problem — the most important one for lawyers — is figuring out what happened. It’s amazing how people take the facts for granted, as if we have God’s videotape to play to a jury or something. Instead, we have conflicting evidence. And the court has to decide what it all means.

So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?

Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, Garcia “was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

In paragraph 45 of his Answer to Fairey’s Counterclaim, filed on September 8 in the lawsuit between himself, Fairey, and the Associated Press, Garcia “denies he stated in interviews that he was not ‘angry with Fairey or interested in joining any lawsuits.’”

Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if that’s the case, then is he calling Gralish a liar?

Welcome to the law.

ADDENDUM: Tom Gralish’s series of posts chronicling his efforts to identify the photograph that served as the source of Fairey’s Obama Hope poster are here. The posts re-enforce something I have suggested before: Garcia’s photograph just isn’t that original. Since the nature of the copyrighted work is relevant to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is less creative, the generic nature of the photo militates in favor of Fairey. But I still think Fairey’s work is so obviously “transformative” that it constitutes fair use. Why? Because it had a resonance in the nation that none of the photos Gralish examined would have had on their own. If Fairey’s ability to confer that kind of power upon the source photo isn’t transformative, I ‘m not sure I know what is. And, incidentally, most of my previous posts on the case are here.

Manny Garcia’s own words betray the weakness of his case.

Manny 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 — is intervening in that lawsuit on the grounds that he, not AP, owns the copyright in the photo. On page 5 of the brief in support of his motion he makes clear he is arguing too that Fairey infringed his alleged copyright in the photo he shot.

I’ve said it before — one of the best ways to defeat an adversary in litigation is to use his own words against him. Garcia now seems to think there’s a principle he has to defend in arguing that Fairey’s poster infringed his copyright in his photograph. AP also thinks Fairey’s work was an infringement but that it owns the copyright in the photograph on the grounds that it was a “work for hire.” Be that as it may, if Garcia thinks Fairey’s work is sufficiently transformative that it stands on its own as an original work, that would be pretty harmful to his and AP’s arguments, wouldn’t it?

Well, for a long time Garcia himself didn’t realize Fairey’s poster might’ve been made from his photograph. As Scene on the Road reported last January, Garcia, after learning that many thought his photo was the original source said, “I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture.” (emphasis added)

Moreover, he said he wasn’t interested in a lawsuit because he understood that artists create by remixing the “things” around them:

[Garcia] was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. “I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.”

So let’s see: Garcia didn’t recognize his own photo was the source of Fairey’s work even after regularly seeing and photographing Fairey’s poster. In fact, it took someone else to point out that Garcia’s work might have been the source. And Garcia himself thinks Fairey’s poster is “a really cool piece of work” and knows “artists” work by doing what Fairey allegedly did with his photo. I don’t know how better to identify and define a work that stands on its own as an original piece of art.

But later, in an interview with NPR’s Terry Gross at the end of February, Garcia seemed to be singing a different tune, saying that Fairey had taken something “that didn’t belong to him”:

Initially when I found out, I was disappointed in the fact that, you know, someone had – was able to go onto the Internet and take something that doesn’t belong to them and then use it. I think that that part of this whole story is crucial for people to understand that simply because it’s on the Internet doesn’t mean it’s free for the taking, and just because you can take it, doesn’t mean it belongs to you.

So which was it Manny — your first take that what Fairey did was “cool,” that you’d like to have a “signed litho,” and that Fairey had merely done what artists do in taking and reworking the photo, or your second take that he had taken something that didn’t belong to him and used it? And why was it you didn’t recognize the poster was taken from your photo?

Shepard Fairey, dishonest Fascist? I don’t think so.

Another artist is upset with Shepard Fairey. 20 years ago Ed Nachtrieb took the photo on the left of an armed Chinese soldier at the onset of martial law in Beijing in 1989.  Fairey’s reworking of the image, conveying its own message, is on the right.

Nachtrieb criticizes Fairey for stripping the image of its context, which was the first appearance on the Beijing streets of lethal weapons and, thus, a the first sign of what would happen in Tiananmen Square. Nachtrieb explains that “[i]mages stripped of their context but retaining  strong emotional elements are  hallmarks of fascist and Soviet propaganda styles,” “drains them of meaning,” and is “dishonest.” And, of course,  he thinks “that Mr Fairey [should] credit those whos materials he uses to ‘inspire’ him.”

Nachtrieb has a point: Fairey’s image plainly does strip Nachtrieb’s original image of its meanings. But it is precisely the fact Fairey’s image does transform the meaning of Nachtrieb’s that makes it fair use of Nachtrieb’s photograph (credit or no credit). But is Fairey’s image “dishonest” or, even worse, “fascist”?

Fairey’s image actually does seem a pretty interesting combination of Soviet Socialist Realism and symbols evoking Yippie demonstrations from the ’60s, hardly the type of thing Socialist Realist painters would have depicted. In short, it’s neither dishonest nor fascistic. It’s just not what Nachtrieb wants done with his image, but, as I’ve made clear again and again, artists don’t have the right to control the uses of their images if those uses are non-infringing. Nachtrieb doesn’t even accuse Fairey of copyright infringment, and rightfully so — it’s pretty damn clear Fairey’s use of Nachtrieb’s photo is fair use.

ADDENDUM: In the comments, Banksy (or someone impersonating him) writes: “You’re an idiot.” I’m not sure precisely which aspect of my idiocy he is referring to, particularly with respect to my post. I doubt he considers Fairey’s piece an infringing one. Perhaps my superficial art criticism and the association between Socialist Realism and Yippie symbolism offended him. I do know that one of his pieces, “War and Peace,” does not seem entirely out of place in this post:

Shepard Fairey, AP, and Dirty Hands

While here at Geniocity today I’m wishing my family had our own backyard wind turbine, Remix America asked me to weigh in as a guest blogger on the latest from the copyright and fair use dispute between Shepard Fairey and AP.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”

Is Michael Murphy another Shepard Fairey?

Do you think that if we ever discover the photo from which Michael Murphy derived the image for this “shadow portrait” of Obama in urethane Murphy will be accused of copyright infringement?  I do, but I don’t think it’s infringement.

Shepard Fairey, lightning rod

I’ve pointed out both that I believe 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 “originality” and regarding his apparent hypocrisy in asserting infringement claims against artists who had appropriated his images.

It has come to my attention that some criticize the Fair Use Project’s decision to take up Fairey’s cause in the case of the Obama Hope poster and think Fairey should be taken down because of his apparent hypocrisy.

As a lawyer, I strongly disagree with this position.  If, as I zealously believe, the Obama Hope poster is fair use, it would be self-defeating to those of us who support the explicit application of the fair use doctrine to transformative appropriation art and various other methods of “remixing” pre-existing works, regardless of our view of Fairey himself,  if we failed to support Fairey’s position in connection with the Obama Hope poster.

I cannot help but recall last year’s lawsuit brought by Yoko Ono, Sean Ono, and Julian Lennon seeking to require the makers of the documentary “Expelled” from using a 15 second excerpt of John Lennon’s song “Imagine” in their documentary.  As I wrote at the time, I believed the lawsuit was misbegotten and that the film’s use of the excerpt constituted fair use despite my love of John Lennon and my contempt for the film, which purports that “theorists” of “Intelligent Design” have unjustifiably been expelled from the conversation regarding evolution and the development of life.  The court hearing the case agreed with my position and dismissed the case. Not coincidentally, the Fair Use Project represented the producers of “Expelled” in that case.

Fair use is fair use, and if we believe in it we should support it wherever it exists, even if we despise the people asserting fair use.  I supported the right of Nazis to march in Skokie, Illinois, a community full of Holocaust survivors, because I believe that the right to demonstrate in public is protected by the First Amendment regardless of how vile the message being conveyed may be.  The Supreme Court agreed.

That doesn’t mean we can’t criticize Fairey when he seems to want his cake and eat it too.  (Though it may be that Fairey’s thoughts have evolved on these issues — while he sent a cease-and-desist letter to Baxter Orr for Orr’s appropriation of one of Fairey’s images, Fairey never followed that letter up with any other action despite Orr’s continued use of the image.)

You may not like Fairey.  But that does not mean we shouldn’t support his position when he happens to be right.  To fail to do so would be to cut off our noses to spite our faces.

Is Shepard Fairey a hypocrite?

I’ve written that I believe strongly that Shepard Fairey’s Obama Hope poster does not infringe the copyright of the AP photograph he stenciled 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 photo.

But Fairey’s practices have often raised questions about the originality of his art.

There are also questions about his possible hypocrisy. MYARTSPACE today focuses on the fact Fairey is trying to assert he has a trademark in the term OBEY. The blog also discusses two potential claims of copyright infringement by Fairey against other artists.

I’ll stick to the copyright claims. They involve two works that borrow significant elements from two of Fairey’s works. In fact, they borrow everything except the mask over the face of the image on Fairey’s poster:

Both images copy far more of Fairey’s original than Fairey’s Obama poster borrowed from the AP photograph. Nonetheless, there’s a very good argument that they are parodies of Fairey’s original, and thus constitute fair use. A parody uses the original work to comment on the original work rather than using the original work to express a point of view independent of the original work. That isn’t to say using the original in non-parody ways isn’t fair use; it’s only to say that the amount of copying permitted for commenting on copyrighted material is considerably greater than if the appropriating work is not commenting on the copyrighted work.

Fairey’s company sent a cease-and-desist letter to Baxter Orr (the creator of the image above). Orr nonetheless continues to sell his painting online, and Fairey has not followed up with any legal action. Nor has he taken any action at all as far as I know against Dan Nolan, the creator of the poster on the right.

I hope he doesn’t take any further action on Orr’s poster or any on Nolan’s. Nonetheless, the cease-and-desist letter might be an instance of copyright overclaiming. Most people, I think, would have taken the image off the internet rather than do what Orr has done.

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.

U.S. Journalism is nothing but he says, she says

What has happened to journalism in this country?  All journalists do is quote one side of an issue and then quote the other side.  Rarely do they engage in meaningful analysis, and when it comes to legal matters they’re often just plain wrong.  In this Wall Street Journal article, the reporter quotes one law professor who says that Shepard Fairey has nothing to fear in his lawsuit against AP in connection with Fairey’s Obama Hope poster, while a lawyer thinks AP will prevail.

I’ve said before: I don’t even think it’s a close case.  Fairey will win. You can call me on it if it turns out I’m wrong.

Now Shepard Fairey sues AP

The AP/Shepard  Fairey showdown continues.  The New York Times reports:

In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of President Obama. . . .

Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia [the photographer] took.

Further complicating the matter is the fact that “Mr. Garcia contends that he, not the Associated Press, owns the copyright for the photo.” Mr. Garcia also states, “‘If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.’”

Mr. Garcia might want to put the “legal stuff away,” but,  as I’ve written,  “the legal stuff” is precisely what Mr. Garcia is talking about when he talks about what  Mr. Fairey did artistically  with the photo and that the effect his artistic transformation of the photo had.  That Fairey so transformed the photo into something that changed the stencil of a generic wire service campaign photo into an iconic image is a huge part of why legally what he did is perfectly legitimate. So, while Mr. Garcia might “not condone people taking things, just because they can, off the Internet,” what Mr. Garcia condones or does not condone is really what is not the “legal stuff.”

Why AP has little chance of success against Shepard Fairey

 Let me explain in greater detail why I not only think Shepard Fairey will prevail in the lawsuit AP has brought against him for copyright infringement, but also why I think it isn’t even a close case. The case, of course, involves Fairey’s poster (pictured on the left), which Fairey created by first stenciling the AP photo wire photo pictured on the right.

As the Stanford Copyright & Fair Use site explains, determining whether a work that appropriates all or part of a copyrighted work is no easy thing:

The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The four factors and my evaluation of their significances in this case are as follows:

(1) The Purpose and Character of Your Use: As the Stanford Fair Use & Copyright site makes clear, this factor turns to s large degree on the following two questions:

(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?(b) Was value added to the original by creating new information, new aesthetics, new insights and understandings?

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.

(2) The Nature of the Copyrighted Work: The AP photo is a generic wire service photo. While photography is, of course, a creative endeavor, some images are more creative than others, and the AP photo of Obama is about as generic as they come. First, it’s an image of the most recognizable face in the world. Second, there is nothing special about it. This generic nature of the work is emphasized by the fact, as I pointed out above, that it took months before someone (not from AP), after scouring the internet on a search for the source of Fairey’s image, finally found the right one. AP had not even known its copyright image was part of a poster that was visible all over the country and in all the media.

(3) The Amount and Substantiality of the Portion Taken: In fact, this might be the factor that counts most seriously against Fairey, but even this factor is, I believe, a close call. As i explained above, about all Fairey’s image ultimately uses is the expression and the tilt of Obama’s head. The very nature of the image is changed from that of a photograph to that of a semi-abstract painting. The background is changed. The color of the tie (a generic tie on a generic suit) is changed. The circular Obama symbol on the suit’s lapel is added. And, of course, the word “HOPE” is added.

(4) The Effect of the Use Upon the Potential Market. This factor, which in the past has been referred to as the most important factor, isn’t even close. Fairey’s image has obviously had NO negative impact on the market for the AP photo. The only possible effect, a likely one, is that it has substantially increased the value of AP’s copyrighted image.

The Stanford Copyright & Fair Use site also points out that “Fair use involves subjective judgments and are often affected by factors such as a judge or jury ’s personal sense of right or wrong.” The fact that Fairey’s image was produced as his contribution to a political campaign would, I believe, weight the case even more heavily in his favor. The courts give great leeway to political speech, which is at the very core of the First Amendment’s values.

ADDENDUM: Brian Ledbetter kindly quotes substantially all of this post and expresses agreement with most of it, but also expresses two reservations: (1) cross-media copying like Fairey’s — whether it be from photograph to painting, painting to statue, photo to Hallmark card-does not necessarily fall under “fair use” exceptions of Copyright law and (2) modern technology makes alterations to photos like the ones Fairey made to the AP photo so easy that we’ll have to begin to believe that “anyone” can create art.

My response, reproduced from the comments to his post:

Cross-media copying is not fair use only to the extent that the result is a “derivative” use. What constitutes a “derivative” use may be as obscure as any other matter on this topic, but it cannot possibly mean any work that is “derived” from a copyrighted work. Every fair use is derived from a copyrighted work.

So what is a “derivative” work? I would submit it is something that exploits at least in part the market created by the original work. Thus, for example, a Snoopy mug would be a derivative work, as would a cover song. I would submit that this mashup, though quite entertaining, is a derivative work in that all it does is exploit the market created by Charles Schulz and OutKast:

The trivia book based on Seinfeld was a derivative use because its targeted market was the audience created by the sitcom. The bio of Salinger that was enjoined was a derivative use because it used such large portions of unpublished Salinger letters that it at least in part was intended to exploit the market for people hungry for anything new by Salinger (he hadn’t published in decades).

But [Brian's} Tom Daschle photo.isn't exploiting any market created by the original. And you know what? The more and more such things get turned out, the less and less they'll have an impact. There's no denying that Fairey's image, while simple, is a powerful one, or at the very least that it resonated as one with a huge portion of the public. I don't think [Brian's] Daschle workup would. And if so, so what? Does that hurt the original photographer? Are we to stifle your creativity to protect some right of the photographer not to have his photograph used in ways he doesn’t want it used? There is no such right. Instead, there’s the First Amendment, which, in the absence of copyright (created to PROMOTE creation) would allow us to use anything.