The Obama poster and the fair use fairy tales

Some minor stir has been caused by the news that the famous “hope” Obama poster has been heavily based on a photography for which AP seems to have copyright. The fastest given, most common and probably most desirable answer has been that the work is protected by the fair use doctrine. Being a staunch supporter of the expansion of the fair use doctrine at international level and having put my fingers in the ORG’s proposal for the post-Gowers copyright exceptions, I have been inclined to believe that fair use would cover the work in question, but the fact is that law is not a matter of faith and claiming wrongly a usually affirmative and complete defence can actually undermine its standing. So, is it really fair use?

Before going into the intricacies of the American fair use doctrine, it is necessary to see whether the poster would constitute an infringement act at all. The photo in question was taken by Manny Garcia, a freenlance photographer under contract (at that moment) with AP, which seems to confer the copyright over the photo to Associated Press. As the holder of the copyright (yes, although used in courts and statutes, owner is not the correct word) AP is entitled to the exclusive right to “prepare derivative works based upon the copyrighted work” 17 U.S.C. § 106 (2) and a previous section of the same Title 17 Chapter 1 of the US code defines derivative work as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”

The artist responsible for the Obama poster, Shepard Fairey, acknowledged that it used the AP photo as basis for his poster but until it was questioned by the press and the AP lawyers it seemed to have forgotten about to crediting them with it. By looking to both the poster and the photo it seems quite straight forward that the poster is a derivative work of the photo (if in doubt look at the eyes), which would imply that it infringes AP copyright unless a form of defence can be found. Most commentators have jumped to the conclusion that we are in front of a clear case of fair use, which would provide with the needed defence. But I am finding trouble to find fair use here…

The doctrine of fair use has been also codified in 17 USC §107 and it refers to the fact that using a work under copyright, “including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”, to then explain the factors to take into consideration to determine the existence of fair include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Most reporters and/or scholars have used these factors to say that, taking into account that the artist claims to not have received any money for the poster (factor 1), that it was used for political purposes (factor 2 with the added value that political speech is greatly protected), there is clear case of fair use, not mentioning that it seems that in factors 3 and 4 the poster would perform quite badly (the poster seems to reproduce almost exactly the photo changing the shading and “cartoonizing” it and it results very difficult to imagine that the AP photo would have any value in the derivative work’s market beyond the poster itself). However, what the analysts seem to overlook is that the four factors are contingent to the previous paragraphs, which clearly and undoubtedly point towards the purpose of the work: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. While it is true that the inclusion of “such as” implies that the list is not exclusive, it also entails that the purpose relate to the ones described, and, understanding the importance of the use of an image for political purposes and the just bias that courts have to protect politically oriented speech, it is not clear how using a copyrighted work to produce a poster that shoots a person to fame and results in exhibitions and other niceties qualify as “such as“ uses.

Here somebody easily could point out that the US Supreme Court has widely spoken about the issue and that the key component is the transformativeness of the work and whether it satisfies a public goal, so the issue is one of fact, how transformative the work actually is, and the public good that serves (getting a president in office seems good enough to me…). The problem with the transformativeness test is that simply changes the nature of the statutory provision and if those that defend fair use and oppose the continuous expansion of intellectual property rights rightfully complain every time that the courts make things up to benefit the copyright or patent holders, as in the Grokster case, they cannot now support the same type of legal transvestite because it fits their ideology. The US Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) referred to the importance of transformativeness in its fair use analysis of the defendant’s parody and explained that transformativeness was the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. But the Court expressly stated that there the purpose was to show something about the original work (in that case the banality of the original song). And that is what analysts seem to overlook.

The statute is quite plain and to find fair use requires to focus on the purpose, the type of work, how big and important is the part used and the impact on the market value of the work, without making any reference to the degree of transformation. Furthermore, it can be clearly argued that the statute follows the correct approach because if the degree of transformation is what it needs to be measured, the fair use defence would negate the existence of derivative works. There is far more transformativeness in making a film out of a book than in making a poster that exactly traces a photography and changes the shades and some colour, although few would argue against the right of the copyright holder to decide who, when and how uses his/her written work to create a film. Even one step further, if the first two factors take an overarching dimension, in the case of photograph of politicians copyright would not exist because in a democratic society getting to know the future or potential leaders has a value that supersedes any private interest on the photo.

As in many cases, it will be up to courts to decide (if it reaches there) and it deserves a further analysis, but, while it would be good if fair use is found it does not seem helpful when all the commentators jump into conclusions just because ideologically suits them…