So, it looks like the artist behind the iconic poster of Barack Obama actually did use an A.P. image as a template to create it. Still, there’s a lot to discuss about copyright infringement, Fair Use, etc.
However, first the details from the NY Times:
The A.P. claimed in January that Mr. Fairey owed them credit and compensation for using the photograph. But in February Mr. Fairey sued The A.P., seeking a declaratory judgment that the poster did not infringe on the agency’s copyrights, and that he was entitled to the image under the “fair use” exception of the copyright law. The A.P. countersued in March, saying that Mr. Fairey misappropriated its rights.
Mr. Fairey told The A.P. — and his own lawyers — that he used a shot from an event about Darfur at the National Press Club in Washington event where Mr. Obama was seated next to George Clooney. Instead, the photograph he used was a solo image of Mr. Obama’s head, tilted in intense concentration. Mr. Fairey admitted that in the subsequent months following the suit and countersuit, Mr. Fairey destroyed evidence and created false documents to cover up the real source.
“In an attempt to conceal my mistake, I submitted false images and deleted other images,” Mr. Fairey said in a statement. “I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”
Yes, Fairey lying about this was wrong, stupid, etc. Shame on him for that. But, as the title suggests, that doesn’t make his use of the photo copyright infringement.
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Now, there are 4 basic ways that Fair Use can be applied to any given case, and my guess is that Fairey is using the following as his way out, “The effect of the use upon the potential market for, or value of, the copyrighted work.” What that means is that the use of the copyrighted material doesn’t negatively impact the value of the image.
And here’s where the true irony of this case comes in…nobody even knew about that Obama photo before Fairey made it famous. So he created the market for The A.P., not the other way around.
But wait…there’s more!
Apparently, there’s confusion as to whether The A.P. even owns the photograph!
Again, from NY Times…
Complicating the legal battle, in July, the freelance photographer, Mannie Garcia, filed court papers in July saying that he was the one who was owned the copyright of the 2006 photo; Mr. Garcia’s assignment was to photograph Mr. Clooney, and he contended that he never assigned his copyright rights to The A.P.
So let me get this straight…The A.P. told somebody to photograph Clooney but they’re claiming that ANY photograph taken during that time belongs to them?
Hmmm….pot meet kettle. Kettle, pot. I’m sure you two have a lot to discuss. Maybe you can talk a little about this guy while you’re at it.