This article originally appeared in the 10.16.14 issue of Metroland
or so ago the talented-but-phony street artist Shepard Fairey came up with the
Obama Hope poster.
It was everywhere,
there were even websites where you could “hope-i-fy” your own image, and most
of us did.
was a crazy rush to figure out what Obama photograph Fairey used as a template
for the poster, because he wasn’t sayin’.
This became an online obsession, and particularly weird because Obama
was perhaps the world’s most photographed human.
Numerous candidate photos were floated, then
Finally, after months of this
nonsense, somebody found a several-year-old picture of Obama seated next to
George Clooney that looked like a perfect match.
the Associated Press claimed that it owned the copyright to the photo, and it
was stomping its feet demanding that Fairey pay up.
So Fairey sued the AP, seeking a court
declaration that he wasn’t infringing.
Us copyright lawyers were really excited about this, as it looked like
an important case, and one that might add much-needed definition to the
doctrine of fair use—when it’s OK for someone to use somebody else’s
copyrighted stuff without permission.
This case would have far-reaching effects for all kinds of artists and
most anyone who creates “content” from cutting and pasting and mashing-up.
Like all of us.
Both sides had ace lawyers and the case was
venued in New York federal court, where a lot of really smart judges sit.
couple months in, it was discovered that Fairey had lied to the court, lied to
his lawyers, and destroyed evidence.
no good reason.
His lawyers quit, the
court sanctioned Fairey, he quietly settled with AP, game over.
No decision, no nothin’.
What we got
instead, several years later, was an appellate decision in the Richard Prince /
Patrick Cariou case involving Prince’s use of Cariou’s photographs of
The decision was muddled,
saying that fair use occurred when there was a transformation of an original
work by changes in expression, meaning, or message.
Without a whole lot of analysis, the court
decided that most of Prince’s “treatments” were fair use, and a couple were
maybes that the court punted back to the district court.
The case then quickly settled.
Not much in the way of guidance, other than that
this idea of “transformation” was a pretty big deal.
couple of weeks ago, a federal appeals court in Chicago issued a major fair use
decision with facts identical to those in the Fairey case.
A t-shirt company took a photo of the mayor
of Madison, Wisconsin and put a hope-i-fied version on t-shirts.
The photographer sued.
The court found
for the t-shirt company, but said a whole bunch of things that again throws the
fair use doctrine to the wind.
ruled that it was fair use.
also said that because the photograph had been altered so much that what was on
the t-shirt wasn’t anything the photographer had the right to protect.
The background was gone, coloring was gone,
detail was gone, all that was left, like with the Obama Hope poster, was an
outline of a head.
The court said
“what [was] left, behind a hint of [the mayor's]
smile, is the outline of his face, which can't be copyrighted.”
enough, but if the shirt doesn’t use any of the photographer’s copyright, why
It’s not infringement,
period, so why then go into a tortured fair use analysis?
They said the most important
factor in a fair use analysis was the financial harm to the copyright holder,
but since the photographer didn’t say the t-shirt cut into his licensing money
they couldn’t address that factor.
seemed to be troubled that the t-shirt company used a copyrighted image when
there just had to be plenty of similar “snapshots” floating around that were in
the public domain.
They talked judicial
smack about “lazy appropriators”.
Finally, they tore into the Prince/Cariou court’s primary reliance on
“transformation”, ignoring the fact that the Supreme Court endorsed this
approach twenty years ago.
The court was
concerned that over-reliance on transformative uses would wipe out a copyright
holder’s right to control derivative works.
Then after all this, the court declared the t-shirts were protected by
So here we
are, with a whole bunch of troubling language that’s gonna be trotted out by
copyright maximalists whenever they feel their precious content has been
I think the court was right that
a too-broad interpretation of “transformative” would wipe out a copyright
holder’s derivative works.
not a reason to discard transformation altogether.
news, I suppose, is that now we have a very sharp split between two of the most
influential circuit courts in the country, which means that maybe a juicy fair
use case will get to the Supreme Court where we’ll get, for better or for
worse, the final word.
Paul C. Rapp is an
intellectual property attorney who also knows his way around a kitchen, a log
splitter, a cocktail shaker, and a set of drums.