Fairey and the Associated Press and the Obama Poster

Visual artist, Shepard Fairey, created several posters to support the candidacy of President Barack Obama.  One of Fairey’s posters now hangs in the Smithsonian Institution’s National Portrait Gallery in Washington, DC.

 

Fairey admits that he used a photograph taken by Mannie Garcia as a visual point of reference to create his posters.  The Garcia photograph, taken by Garcia while on assignment to the Associated Press, depicts then Senator Obama at an April 2006 panel discussion at the National Press Club.  

 

After this revelation, the Associated Press contacted Fairey to demand a license fee for the use of the Garcia photograph.  The AP said it would contribute any proceeds to a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts. In a preemptive strike, Fairey filed his own lawsuit asking a New York federal court for a declaratory ruling that his posters do not infringe any copyrights held by the Associated Press. 

The case raises some interesting issues.

 

 

Did Fairey Use Any Copyrightable Elements from the AP Photograph?

 

Copyright does not protect the subject matter of visual art unless the subject matter is itself copyrightable.  A person is not copyrightable subject matter.  Anyone may duplicate your idea of photographing or creating an image of a person – even if it is the exact same person. What another may not do is duplicate the expressive elements you use. Expressive elements in a photograph include the selec­tion of lighting, shading, camera angle, back­ground, perspective and, in some cases, the contrived positioning of the subject.

 

There are likely to be more expressive elements in the work of a photographer when he is in the studio and directing his subjects than there are in the photographs taken while covering a news event.  Barring Obama making himself available to pose for Fairey’s posters, it’s a given that Fairey would need to use some pre-existing images as a visual reference in creating his posters.

 

My visual artistic talent ends at drawing a straight line.  But even I can see that Fairey used the same angle and perspective as used in the AP photograph.  That might be sufficient to find that Fairey took some of the photograph’s creative expression.  Or perhaps not.  The AP photographer didn’t put Obama in that pensive pose.  He simply snapped the photo while Obama was in that particular pose.  Sufficiently creative?  I’m really not sure.  I am sure that Fairey would have a stronger case had he used the AP photograph to capture Obama’s physical features and portrayed Obama in a different pose than the one in the AP photograph. 

You can determine for yourself whether Fairey took any other creative elements.  The AP photograph and the one of Fairey’s posters are side-by-side here. 

 

 

If Fairey Did Use Copyrightable Elements, Does the Use Qualify for Fair Use?

That’s a very subjective question.  Fairey’s use must go through the same four-factor analysis as any other use claiming to fall under the fair use doctrine.  Among other questions, a court will ask whether Fairey’s use was transformative and whether Fairey’s posters damage the market for the original photograph. 

 

The Farley-AP case reminds me of the Jeffrey Koons Puppies copyright infringement lawsuit.  Visual artist Jeffrey Koons is a lightening rod for copyright infringement lawsuits.  In fact, comparing two of the Koons lawsuits – one involving a wood sculpture entitled String of Puppies and the other involving a billboard collage painting entitled Niagara - provides a helpful example of how courts draw the line between copyright infringement  and transformative use.

 

Meanwhile . . .

 

It has become unclear whether the Associated Press actually owns the original photograph.  There are rumblings that Mannie Garcia may have retained most of the rights in the photograph.