By Travis Walters
A full-scale copyright battle may be making the front page soon, and it has nothing to do with music. That’s actually an exaggeration. I doubt anything as mundane as photography copyright would make the front page, but it’s definitely in the papers.
I’m talking about Shepard Fairey of Obama “HOPE” poster fame. The Associated Press contacted Fairey’s studio in late January claiming that the poster he created violated their copyright and demanded payment for the use of it and a portion of any money he makes from it. Fairey filed a preemptive lawsuit against the AP Feb. 9, asking a judge to declare the work as protected under fair-use exemptions of copyright law. Fair-use allows for limited use of copyrighted works for purposes like criticism and comment—but is Fairey’s work criticism or comment? Does he deserve the exemption?
The photograph used in Fairey’s “HOPE” poster was taken by Mannie Garcia, who worked for the AP for a few weeks in 2006. Garcia took the photograph of then-Senator Barack Obama at the National Press Club in April 2006. In a blow to the AP, Garcia contends that he, not the AP, owns the copyright to the photograph. He claims he was not on staff with the AP and that he did not sign the AP freelancer agreement before taking the photograph. Further, Garcia actually likes what Fairey did with the image and has no interest in fighting the AP or Fairey.
The AP doesn’t see it that way, claiming Garcia was on staff and that they own the image. They’ve yet to counter-sue Fairey, but they’re obviously interested in pursuing this. The lawsuit filed by Fairey contends that he converted Garcia’s photo into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.”
Does changing the message of a photograph make it something new and different, and therefore not subject to copyright law? Has it changed radically enough? I think so, and so does Anthony T. Falzone, the executive director of the Fair Use Project and law lecturer at Stanford University, who is representing Fairey.
I think the question that will be asked in court is whether or not the poster hurt the image. I think, in this case, the poster helped the image. I wouldn’t have known it existed otherwise; it would have just been one of thousands of images taken of Obama.
The Obama campaign, which no longer comments to the press because the campaign is over, never officially used the image, though they sold it along with other works of art created for the campaign.
Fairey has had brushes with the law before, but usually because of his “street art.” In fact, he was arrested in Boston last week on outstanding warrants for graffiti.
The poster will be on display during February at the Institute of Contemporary Art in Boston, along with other works created by Fairey. A mixed-media stenciled collage version is now in the permanent collection of the National Portrait Gallery in Washington.
