hope appropriation

So that famous illustration Shepard Fairey made of Barack Obama? The one the campaign used on tons of promotional art? Well you may have heard that the AP is claiming Fairey infringed their copyright. Apparently the illustration was based on an AP photo taken by a freelance photographer, and now the AP wants credit and money.

The response I've seen online has been pretty one-sided. We love that image, we have it on t-shirts and bumper stickers and hanging on our walls, and we love Shepard Fairey, and we hate the AP, so it's a no-brainer, right? Here's a typical response, from Dailykos: "This is quite the novel claim by those assholes at the AP -- that artwork based on a photograph is now a copyright violation. Not use of the photo, or even use of part of a photo. But that an entirely different work, on a different medium, is now somehow owned by the AP because it happens to be based on that photo."

Let's unpack that. First of all, what is a derivative work? According to the Copyright Office, a derivative work is "a work that is based on (or derived from) one or more already existing works." And, "Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version."

Looking at the two side by side, it would be hard to deny that the photo was the basis for the illustration. And Fairey hasn't denied it. In the same publication the Copyright Office is very clear that only the copyright holder of the original work can authorize a derivative work.

So, onto Kos' claim that because the illustration is in a different medium, it can't be a derivative work. The Copyright Office gives a list of examples of derivative works, including: "Motion picture (based on a play)...Sculpture (based on a drawing); Drawing (based on a photograph)." All three are examples of a work translated into a different medium. The last one explicitly covers Fairey's illustration.

I also found an example where artist Jeff Koontz made a sculpture based on a photo, which he saw on a greeting card. He did not have the photographer's permission, the photographer sued, and the sculpture was found to be infringement. (Rogers v. Koons, 960 F.2d 301 (2d Cir 1992))

So Kos' rant about those assholes at the AP and their novel claims, well ... their novel claim seems pretty well backed up by both statute and case law.

It took me about 10 minutes to find the information above. Would have been faster but I thought I had it on my own website, and wasted about 5 minutes looking there. I guess the take-away message is, first of all, Kos is full of shit. Second, just because the AP are dicks doesn't mean they're wrong.

Actually I'm being a little disingenuous. Kos comes up with (and seems to conflate) two defenses in his post: first the one about translation to a new medium, where he's just flat wrong. And then fair use, which is what most of the responses I've seen hinge on. Personally I think it's a stretch. But I'm not a legal scholar; I'm just some idiot with a blog. And I know that fair use is a hotly contested area of the law, and it seems that there are legitimate arguments both in favor and against in this case. For instance, Fairey donating all the proceeds to the Obama campaign I think means there was no commercial benefit from the work, and that's a mark in favor of fair use. On the other hand, another factor when considering fair use is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and that's a mark against.

It seems pretty clear to me that calling Fairey's image fair use is debatable. And that anyone (like Kos) ranting about how obvious it is and how the AP are copyright bullies without a legal leg to stand on .. well Kos, there's this thing called Google. You might try it sometime. If you think copyright law should be different from what it is, make your case. I might agree with you. But pretending it is what you want it to be rather than what it is .. that's just pointless.

In practical terms, I think the likely outcome will be Fairey and/or the campaign cutting a deal of some kind with the AP. I would feel better about it if the settlement would go to the freelance photographer rather than the AP. Because the photographer is the one who created the work that was infringed. And the AP really are dicks. Which, again, doesn't mean they're wrong.