Wednesday, January 21, 2009

Fairey Use? (UPDATED 3X)

The hunt is on for the photographic source of Shepard Fairey's iconic Obama image, and, as Mike Madison says, now "the fair use fun can begin." Madison gets it started; he thinks the photographer may well have a good claim: "Sure, the photo is 'transformed' to a sizable extent, which pushes the fair use needle to Fairey’s side. But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo. Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money. Push that needle back a ways."

UPDATE: Interesting discussion going on in the comments section at PrawfsBlawg here.

UPDATE 2: My friend Bob Clarida, a copyright guru at Cowan Liebowitz, emails the following thoughts: "This would be a tough fair use argument to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer. I wonder, though if you could successfully argue that there's no substantial similarity, as in Reece v. Island Treasures, where there was no infringement when defendant made a stained-glass piece of a hula dancer that looked much like the plaintiff's photo (from which it was apparently copied). I'd say the Reece analysis applies better than fair use, especially when combined with Judge Kaplan's discussion of the thin copyright in photos of the 'right place, right time' variety (Mannion v. Coors), which the Obama shot appears to be. Reece is from the district of Hawaii, though, which doesn't carry a lot of weight in the copyright world. So Reece is maybe a long shot, no pun intended, but better than the fair use argument in my opinion."

I wrote about the Reece case here and here (and cited a NYLJ piece by Bob on it here). Bill Patry discussed Mannion v. Coors here.

UPDATE 3: Richard Lacayo offers some thoughts.