Thursday, October 19th, 2017

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Shepard Fairey and AP. What is Fair Use Copyright Law?

For those of you who don’t know, Shepard Fairey is the Los Angeles-based artist who has covered the country in OBEY- Andre the Giant posters and stickers. His Andre the Giant images achieved cult status and he’s iconic Obama HOPE posters became the image for the last presidential election.

The image is on buttons, posters, and prints. It has sold hundreds of thousands of copies. Last month, Fairey saw his Obama HOPE image (mixed-media stencil collage) installed in the permanent collection of the National Gallery of Art.

It seems like everyone loves Fairey’s image.

Everyone, that is, except the Associated Press.

The image was originally taken in April, 2006 by Manny Garcia while he was on assignment for the AP at the National Press Club in Washington. The AP says it owns the copyright and is asking for credit and compensation. But, according to an interview with Manny Garcia (the actual photographer) on the blog Photo Business News & Forum, Garcia was a temporary hire and never signed an AP contract. He has never been an AP staff member and was not working as a freelancer. Therefore, he believes that he is the owner of the copyright and is in talks with AP about this now.

Garcia says, “This is not about me making money off this, it’s about recognition. I made the most iconic image of our time, and I’d like it to make a difference, not make me money … I just want Shepard Fairey to say "alright, you’re the guy. Thank you." (http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html)

Fairey admits that the image is the same AP image. Fairey’s lawyer says that he is protected under fair use. 

What is fair use?
Fair use is Section 107 of the Copyright Act. According to Copyright.gov:

“Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.”

Section 107 also includes a list of the purposes for which the reproduction of a particular work may be considered “fair,” such as teaching, criticism, and reporting.

Take a look at these two examples. Both involved artist Jeff Koons and each had a different outcome.


Artist Jeff Koons and two fair use cases
The artist Jeff Koons has been involved in at least two fair use cases.

Rogers v. Koons. Art Rogers was a photographer who took a photo of a man and a woman holding an arm full of puppies. The image was used on greeting cards, postcards, and similar merchandise. Jeff Koons found the image and had his assistants make sculptures out of the image. He had them copy the details. The most significant changes made were to add flowers to the people’s hair and make the puppies blue. The sculpture series was about the banality of everyday life and titled, appropriately enough, “Banality.”  The sculpture itself was titled “String of Puppies.” Koons sold three of these sculptures and made over $300,000.

Rogers sued Koons for copyright infringement. Koons claimed fair use, stating that the sculptures were a parody.

The Court disagreed. The Court found a “substantial similarity”—a similarity that anyone could recognize. They also found that Koons had access to the photo. Finally, according to the Court the sculptures did not parody the photograph—Koons could have made a parody out of that general type of art without copying Rogers’ specific photograph. In addition, even if the photographer was never going to make sculptures of his photo, a potential market did exist.

Blanch v. Koons. Jeff Koons used parts of a fashion photo—four pairs of women’s legs wearing Gucci sandals—in a collage painting entitled “Niagara.” This painting featured a Dali-like montage of popular cultural images with Niagara Falls in the background. One of the pairs of legs was taken from a photograph by Blanch, a fashion photographer, and was originally published in Allure magazine in 2000.
Koons won this case. The Court found that Koons’ painting had “entirely different purpose and meaning—as part of a massive painting commissioned for exhibition in a German art-gallery space.” Koons made substantial changes to the original picture: the background, the colors, the details, and the size.

The purpose of Koons’ piece was to comment on the use of fashion imagery in our consumer culture. The purpose of the original photograph was to sell fashion.

What do you think?
Fairey created the poster in 2008. Why is the AP up in arms now? Well, for one, Shephard Fairey probably got a big pay day with his sale to the National Gallery. Who do you think should get the credit and the money? Fairey, Garcia, the AP?

-Image by Shepard Fairey (as of right now)

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