UPDATE: Well, the premise of what I wrote remains true. But it turns out that Fairey lied about a lot of things.
The photograph which formed the basis of Mr. Fairey’s iconic “Hope” poster used by the Obama presidential campaign was taken by free-lance photographer Mannie Garcia and is owned by the AP.
The AP thinks it should share in Mr. Fairey’s profits.
Campbell’s Soup never sued Andy Warhol for violation of fair use.
Fair use has allowed artists of all types to enrich our culture with their views of the world around us. Consider the work of painters like Andy Warhol, who composed numerous works with such images as Campbell’s Soup cans and photographs of Marilyn Monroe — images that were protected under intellectual property laws.
Consider, too, the work of Jean-Michel Basquiat, who paid homage to musicians like Miles Davis by including lyrics to their (copyrighted) songs in his paintings. Without fair use, these artists might have been branded as outlaws.
Unfortunately, this specter of legal liability (through new ill-conceived intellectual property laws) may jeopardize the work of more recent artists, many of whom now use the digital domain as a medium for their creative endeavors.
I hope Mr. Fairey gets some backers to pay his lawyers because obviously the AP can afford to spend a lot. But I think Mr. Fairey could well win this one.
In Mr. Steinhardt’s paper, he indicates that:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the 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.”
Mr. Fairey’s use does not have any effect on “the potential market for or value of” the original photograph. As far as “amount and substantiality of the portion,” one would be hard pressed to recognize the original photograph in the artwork at all. I would be extremely surprised if anyone at the AP or Mannie Garcia even figured out without being told that the photo in question had been used. Without those two factors, it would seem to me that the AP’s claim lacks merit.
The USA Today story includes a side-by-side of Mr. Fairey’s “Hope” poster and the original photograph. Go look yourself.
Do you think the AP or Mannie Garcia have a legitimate beef?
I think the AP is just pissed because their mancrush John McCain lost the election.