Wednesday, October 15, 2014


This article originally appeared in the 10.16.14 issue of Metroland.


            Six years or so ago the talented-but-phony street artist Shepard Fairey came up with the Obama Hope poster.  It was everywhere, there were even websites where you could “hope-i-fy” your own image, and most of us did. 

            Then there was a crazy rush to figure out what Obama photograph Fairey used as a template for the poster, because he wasn’t sayin’.  This became an online obsession, and particularly weird because Obama was perhaps the world’s most photographed human.  Numerous candidate photos were floated, then shot down.  Finally, after months of this nonsense, somebody found a several-year-old picture of Obama seated next to George Clooney that looked like a perfect match.

            But, uh-oh, the Associated Press claimed that it owned the copyright to the photo, and it was stomping its feet demanding that Fairey pay up.  So Fairey sued the AP, seeking a court declaration that he wasn’t infringing.  Us copyright lawyers were really excited about this, as it looked like an important case, and one that might add much-needed definition to the doctrine of fair use—when it’s OK for someone to use somebody else’s copyrighted stuff without permission.  This case would have far-reaching effects for all kinds of artists and most anyone who creates “content” from cutting and pasting and mashing-up.  Like all of us.  Both sides had ace lawyers and the case was venued in New York federal court, where a lot of really smart judges sit.

            But a couple months in, it was discovered that Fairey had lied to the court, lied to his lawyers, and destroyed evidence.  For no good reason.  His lawyers quit, the court sanctioned Fairey, he quietly settled with AP, game over.  No decision, no nothin’.

            What we got instead, several years later, was an appellate decision in the Richard Prince / Patrick Cariou case involving Prince’s use of Cariou’s photographs of Rastafarians.  The decision was muddled, saying that fair use occurred when there was a transformation of an original work by changes in expression, meaning, or message.  Without a whole lot of analysis, the court decided that most of Prince’s “treatments” were fair use, and a couple were maybes that the court punted back to the district court.  The case then quickly settled.  Not much in the way of guidance, other than that this idea of “transformation” was a pretty big deal.

            Then a couple of weeks ago, a federal appeals court in Chicago issued a major fair use decision with facts identical to those in the Fairey case.  A t-shirt company took a photo of the mayor of Madison, Wisconsin and put a hope-i-fied version on t-shirts.  The photographer sued.

            The court found for the t-shirt company, but said a whole bunch of things that again throws the fair use doctrine to the wind.  The court ruled that it was fair use.  But court also said that because the photograph had been altered so much that what was on the t-shirt wasn’t anything the photographer had the right to protect.  The background was gone, coloring was gone, detail was gone, all that was left, like with the Obama Hope poster, was an outline of a head.  The court said  “what [was] left, behind a hint of [the mayor's] smile, is the outline of his face, which can't be copyrighted.”

            OK, good enough, but if the shirt doesn’t use any of the photographer’s copyright, why keep talking?  It’s not infringement, period, so why then go into a tortured fair use analysis?

            But analyze they did.  They said the most important factor in a fair use analysis was the financial harm to the copyright holder, but since the photographer didn’t say the t-shirt cut into his licensing money they couldn’t address that factor.  They seemed to be troubled that the t-shirt company used a copyrighted image when there just had to be plenty of similar “snapshots” floating around that were in the public domain.  They talked judicial smack about “lazy appropriators”.  Finally, they tore into the Prince/Cariou court’s primary reliance on “transformation”, ignoring the fact that the Supreme Court endorsed this approach twenty years ago.  The court was concerned that over-reliance on transformative uses would wipe out a copyright holder’s right to control derivative works.  Then after all this, the court declared the t-shirts were protected by fair use.

            So here we are, with a whole bunch of troubling language that’s gonna be trotted out by copyright maximalists whenever they feel their precious content has been nicked.  I think the court was right that a too-broad interpretation of “transformative” would wipe out a copyright holder’s derivative works.  But that’s not a reason to discard transformation altogether. 

            The good news, I suppose, is that now we have a very sharp split between two of the most influential circuit courts in the country, which means that maybe a juicy fair use case will get to the Supreme Court where we’ll get, for better or for worse, the final word.

Paul C. Rapp is an intellectual property attorney who also knows his way around a kitchen, a log splitter, a cocktail shaker, and a set of drums.


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