Was Shepard Fairey’s use fair?
Last week Shepard Fairey was sentenced to two years probation and a $25,000 fine for tampering with evidence in his copyright battle with the Associated Press. Some, including prosecutor Daniel Levy, felt Fairey should have served jail time. Levy contends, “A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct.”For those unfamiliar with the case, Fairey was sued by the Associated Press in 2009 for copyright infringement for using a photo by AP photographer Mannie Garcia. Fairey then filed a suit against the AP, contending that his use of the photo fell under the doctrine of fair use. The case got murky when it was discovered that Fairey lied about the original photo that he used as well as destroyed documents that were relevant to the case.Plagiarism Today lists the belief "Fair Use Will Protect Me" as one of the top myths about copyright. They go on to state that most people who claim fair use are misreading the law. Fair use is meant to balance free speech against the rights of the copyright holder. Fair use is an affirmative defense; you would have to prove it after you are sued. Fair use is not meant to protect you from a lawsuit, but rather from having to pay damages after it is over. (1)The definition of fair use is the copying of copyrighted material for a limited and transformative purpose; to comment upon, criticize, or parody. The term transformative is as ambiguous and vague as it seems, and it's done so intentionally. Like free speech, judges and lawmakers want an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: commentary and criticism, or parody. (2)According to Stanford University Libraries, when assessing whether or not something falls under fair use, lawmakers use four factors:
1. the transformative factor: purpose and character of your use(have you created new meaning, was value added to the original?)
2. the nature of the copyrighted work(was the original work factual or fictional? typically you have more leeway if it's factual)
3. the amount and substantiality of the portion taken(in general, the less you take, the more likely you will be excused)
4. the effect of the use upon the potential market(does your new work deprive the copyright owner of income or a potential market for the original work?)
In Fairey's case the issue was eventually settled in a civil case without answering the question of whether or not his use of the AP photo constituted fair use under copyright law. The financial terms of their agreement were not disclosed and both parties agreed to share image usage rights for any posters or merchandise produced using the "Hope" image.Fairey may have been sentenced for his criminal activity involved with this case, however the question still remains, would his use of the AP photo have been fair if he hadn't lied and tampered with evidence?Notes:(1) http://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/(2) http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.htmlSources:http://www.latimes.com/entertainment/arts/culture/la-et-cm-shepard-fairey-20120908,0,6021274.storyhttp://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/http://www.huffingtonpost.com/2012/09/06/shepard-fairey-jail_n_1861680.htmlhttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
"Hope" Poster - Fair Use or Copyright Infringment?
One of the most celebrated works of campaign art in American history, Shepard Fairey’s “Hope” poster, was added to the collection of the National Portrait Gallery in Washington. The poster has also been the focus of a copyright-infringement lawsuit between Shepard Fairey and the Associated Press.In early February 2009, the Associated Press determined that the photograph used in the poster is an AP photo and that its use required permission. At the time of the Associated Press’ original allegations, Shepard Fairey’s attorney stated that the use of the image is “fair use” and thus protected by copyright law. A few days later Fairey filed a suit against the Associated Press, asking a judge to find that his use of an AP photo in creating the poster did not violate copyright law.In his February 9, 2009 Complaint for a declaratory judgment against the AP , Fairey claimed to have used an AP photograph of George Clooney sitting next to then-Senator Barack Obama as the source of the “Hope” posters. However, as the AP alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of then- Senator Obama from the same press event, which is an exact match for Fairey’s posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did and that he at least had to crop it.In October 2009, Fairey admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions. In early 2010, it was disclosed in court that Fairey is under criminal investigation after he said he erred about which AP photo he used as a basis for “Hope.” He acknowledged that he had submitted false images and deleted other images to conceal his actions.
As of April 2010, lawyers for artist Shepard Fairey were ordered to disclose the identities of anyone who deleted or destroyed records related to a copyright dispute over the Barack Obama “Hope” image. Fairey’s image has had an undeniable cultural impact. His red-white-and-blue poster of Obama with the word “Hope” at the bottom (pictured) has spurred an ongoing parade of parody images featuring everyone from Sarah Palin (“Nope”) to Heath Ledger (“Joke”).Paste magazine’s easy-to-use, web-based Obamicon generator—one of many online tools that make it easy to modify an picture to look like Fairey’s poster—has reportedly created more than 500,000 of these images.What do you think? Is the Obama "Hope" poster an example of fair use or copyright infringement?SOURCES:http://www.ap.org/iprights/fairey.htmlhttp://www.wired.com/underwire/2009/02/copyfight-erupt/http://www.copyright.gov/