The Obama Image



Obama Hope Image Subject of Fair Use Lawsuit


No, I’m not going off-topic again; I’ve gotten over it.

We’ve all seen the image of President Obama, and by now we all know where that image came from — a photo taken by AP photographer Mannie Garcia in 2006, munged into the Hope poster by Shepard Fairey and used throughout the Obama campaign.

17 USC 107 controls fair use under the copyright law of the US. Was the use of the AP picture in the Hope poster fair use under the law? That’s what the US District Court for the Southern District of New York (SDNY) has been asked to determine. The AP has sued Fairey in the copyright court — the SDNY, sitting in New York City is in the heart of the publishing industry, the SDNY has a lot of copyright jurisprudence to guide it in making such a decision.

Fair use is a gray area of the law, at best. The statute, ever so helpfully, gives us a test that can be applied to questions of fair use, but at the end of the day it’s the judge’s sense of justice that determines the outcome of the case.

It will be interesting to see where this case goes. The Hope poster is political speech, probably the most protected speech under the First Amendment; the image, though, is clearly a derivative work of the AP photo.

Who will win? Who can tell?

The semester begins…

…and along with it invariably arise questions about copyright fair use.

Teachers claim “fair use” for making massive numbers of photocopies of articles, books, cartoons, and other copyrighted materials to pass out to their classes. They stand firm in their belief that all educational use is “fair use.”

What IS “fair use” under the copyright laws of the US? That question is almost metaphysical in its scope. The statute defines fair use as:

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 USC 107

Well, what does that mean?

The statute lays out a test that the court must follow to determine if a particular use that would ordinarily be an infringing use is fair use under the Copyright Act. There’s a sliding scale: if the copying work is commercial, it’s more likely to be found to infringe than if it is for a non-commercial or educational purpose; if the purportedly infringing work increases the market share of the original work, the copy is more likely to be found not to infringe than if it took the market share away from the original. If the accused infringer took only a small part of the work and copied it, he is less likely to be found to infringe the original than if he took a large chunk. If the original work is a work of fiction, any copying of it is more likely to be found to infringe than if it were a factual work. And so on.

At the end of the day, though, the judge has to weigh the factors and render a decision based on that ever-wonderfully vague term “the interests of justice.” So, basically, a copyright infringement case defended with fair use can turn out whichever way the judge wants it to turn out.