Recently in Art Category

Before getting into the substance of my first post to Collectanea, I want to thank the Center for taking me on as its IP Scholar for the next few years. It's an honor and a privilege to follow in such distinguished footsteps -- most recently Georgia Harper's -- and to have the chance (from time to time) to speak to such an engaged audience. In other words, this should be fun!

As you'll discover quickly, I'm a big fan and promoter of fair use -- a user-friendly doctrine in our copyright law that is too often misunderstood and (more critically) underutilized. A lot of my work in the last five years has been around getting different practice communities to recognize and own their fair use rights, and I'll be blogging about the resultant "Best Practices" in fair use documents sometime soon.

Today, however, I want to suggest (somewhat uncharacteristically) that the fair use handle may not be the best one (or, at least, not the only one), by which to pick up the by now widely-publicized controversy between the street artist turned culture hero Shepherd Fairey and the Associated Press. By now, you know the outline of the dispute: AP wrote Fairey to assert that his iconic image of Barack Obama infringed its copyright in a photo taken by a freelancer it had employed. Not waiting to be sued, Fairey fired back (with help from the estimable Fair Use Project at Stanford) seeking judicial declaration that the use was legal. In press accounts, one element of that lawsuit got most stress: the claim that whatever use Fairey had made of the image in question should be considered "fair."

And so it should be (a point to which I'll return) if the dispute ever gets that far. But there are some other copyright questions to consider along the way. As much of a fair use enthusiast as I am, it's always my advice to consider other arguments against liability as well. And in this case, there are plenty of them.

Here's some background:

Back in April 2006, then-Senator Barack Obama attended a press event with actor George Clooney to draw attention to atrocities in Darfur, as described at swamppolitics.com. AP Photographer Mannie Garcia snapped some photographs of the event, including this one:

Ultimately, Barack Obama ran for president, accepting the nomination for the democratic candidacy on the 45th anniversary of Martin Luther King's "I have a Dream" speech and taking the oath of office one day after the national holiday honoring Dr. King's birthday.

Graffiti artist Shepherd Fairey has been an active in politics for over 20 years, and in Barack Obama he saw a candidate worth celebrating and supporting. In early 2007, he came across Garcia's photograph and used it as source material for this painted design:
Apparently, it was Fairey who "found" the striking Obama close-up by cropping Garcia's busy medium-shot of the Senator and Clooney.

The Obama campaign never officially adopted the image (ironically, because of copyright concerns), but nevertheless encouraged Mr. Fairey to make and distribute the posters. The image became one of campaign's central symbols, and the Smithsonian Institute acquired the original for display in the National Portrait Gallery.

So let's analyze the claim. The first question, of course, is whether AP has any rights upon which it can rely. As a freelancer, Mr. Garcia may or may not have been an "employee for hire," but it seems at least likely that AP did contract specifically for rights in works he produced on assignment from them. A more interesting question, then, is whether whatever rights AP had were exclusive or shared ones. Since the early 20th century, it's been a copyright convention in the United States to discount the contributions that photographic subjects make to images depicting them. This is the approach the Supreme Court took in the famous 1884 Burrow-Giles Lithographic v. Sarony case (involving rights in a portrait of Oscar Wilde), and its implications were first documented by Jane Gaines, in her important 1991 book, "Contested Culture: The Image, the Voice and the Law."

In practice, a photographic subject has a lot of responsibility for how he or she looks, at least in a posed or "semi-candid" shot. This may be particularly true of a politician actively involved in cultivating a public image. If the subject were ever considered to be a joint author of a photograph, the implications for legal analysis would be substantial. In this case, for example, Barack Obama would have been in a position to give Fairey legal authorization to make whatever use of the photograph was necessary to create the poster -- making the AP's claim effectively moot. Does the issue of the ownership of Barack Obama's image provide an occasion to reconsider the historically well-established but doctrinally shaky allocation of all rights to the photographer (or the photographer's employer)? Perhaps so. But it could be an uphill battle. So let's consider another argument -- one that doesn't depend on establishing Barack Obama's ownership.

The scope of copyright protection extends only to the elements of the work that are someone's original authorship. We probably all would concede that had Mr. Garcia's photograph been reproduced exactly, in its entirety, something attributable to him would have been taken. But that wasn't the case here. Shepherd Fairey painted his image using a photograph as a reference, rather than transcribing it directly. What, after all, do the two graphic works have in common? One thing is Barack Obama's physiognomy, which is his alone! Another is his pose -- chin uplifted and face slightly turned -- clearly one of the elements that makes the original image (and Fairey's version) memorable. Can the AP (by way of Garcia's authorship) claim that? In the abstract, perhaps, since every since Burrow-Giles we've understood that posing the subject can be an aspect of photographic authorship. In this case, however, it isn't clear that Garcia created the pose, as distinct from happening upon it. Nor is it obvious that had he created it, it would be considered "original." Innumerable high school yearbooks testify to the fact that this is a conventional way of creating interest in a portrait photo. Moreover, it is one that is already familiar from photographs of public figures, including Martin Luther King himself, as photographed by Karsh of Ottawa. In general terms (which are the ones that matter most here) the pose is conventional rather than copyrightable.

So what's left? And -- more to the point -- is it enough? Using the conventional "subtractive" approach to infringement analysis, and beginning by stripping away all the elements of the Garcia photograph that copyright doesn't protect, would we be content to conclude that the Fairey poster design is "substantially similar"? Or are the "original" elements repeated in the poster (the exact angle of the head, for example) simply to few and too trivial to count There's a general rule that the law doesn't stoop to trifles and it applies in copyright infringement analysis. The fact that we excuse rather than penalize so-called de minimis copying of protected material is just another way of assuring that overenthusiastic assertions of protection don't gum up the works of creativity. This may well be such an example.

Of course, if a court were event to reach it, Shepherd Fairey's fair use claim would also have real force. In Garcia's photograph, Fairey "found" a reference to Karsh's famous King portrait - arguably an act of visual commentary or critique. In any event, Fairey took only a portion of the original image (although arguably the most important part), he transformed the image by using it in a new context (fine art/political advocacy v. news reporting) and adding value to it, and he did nothing to undercut the lasting commercial value of the image. About the only argument left is the circular one that if the use were not considered fair, the AP would have been entitled to receive a license fee for it -- and, therefore, that its "market" has been harmed. But recent fair use case law speaks clearly, decisively and negatively to that point. When a use is truly "transformative," we are told, the copyright owner has no valid expectation of licensing revenue for it (or others like it): "[When the use of] images is transformatively different from their original expressive purpose.... a copyright holder cannot prevent others from entering fair use markets...." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2006) at 614-615.

Fairey v. AP could be an interesting fair use case, but it is (perhaps) an even more interesting introduction to other copyright doctrines that protect the rights of creators to incorporate elements of the surrounding culture into their own work.

The New York Times, May 27, 2008, is reporting a fascinating example of the government of Mexico barring the use of images of ancient artwork in a tourist advertising campaign. OK, the images are emblazoned on the body of a well-known actress. I think we can all agree that some people will be drawn to plan their vacation in Mexico, and someone else will be offended. Moving on to my main point...The government of Mexico is effectively asserting control over the use of the ancient images in an ad campaign. It is not quite copyright, and it is not quite censorship (maybe). But it is, under whatever label, a determination by the government of acceptable uses of imagery of importance in the culture and history of the country.

Many countries have some form of law protecting the use of images, sounds, words, that are part of the cultural heritage of the country. That seems to be the situation in this example. According to the article, the National Institute for Anthropology has the authority to reject "anything seen as exploiting a historical artifact's dignity." Here in the US, we ordinarily do not have such laws, although we get to the point indirectly. For example, controlling the location gives a right to control some uses of images. If I own the land where historic structures are located, I can review your project and deny you access to the location if I do not like your plans. We also have examples of the use of trademark law to protect visual images of buildings and trees that are outside the reach of copyright control.

Therein lies my point. Copyright has limits. Georgia Harper and I often express concerns about the scope and duration of copyright law, but even so, it has its limits. It does expire. It does not protect everything. It does not give all rights to all works. If you have an interest in asserting control over ancient pyramids, and copyright does not do the trick, what are your choices? Sometimes look to other law, and sometimes create new law. Speaking of pyramids, I did read an item this month about a quest by the government of Egypt to gain new legal rights to control images of the Pyramids.

Why would anyone want such control? Many reasons. In the Mexico example, it was to control the dignity of a great heritage. Maybe in the next case it will be simply money. Rights of control mean an opportunity to permit uses. Maybe that permission will come with a fee. Regardless, the Mexico example reminds us that "rights" come in layers, and the layers are of different thickness around the world. You might find a great picture of the Maya pyramids, but to use that picture in the U.S., you have to clear the copyright. To use the picture in Mexico, you might have to clear the copyright and get approval from the government. If the picture happens to include an actress, you might also be clearing the rights of publicity. And then we can talk about trademark, contractual restrictions, and more. Just when you thought you figured out copyright, you found another layer of the law.

Last week brought reports of the death of Robert Rauschenberg, an important modern artist. You can find his obituary in the New York Times, along with a slide show of some of his paintings.

I find his work esthetically delightful, and I just see copyright all over the place. There is the usual: He is creating new and original works that are fixed on the canvas or whatever medium (including, apparently, dead birds and tires). For the newspaper to include examples of his work, a photographer needs to snap a nice clean shot of the painting. That raises the turmoil of Bridgeman Art v. Corel and the question of copyright for photographic images of paintings. Then there is the question of whether the newspaper is within fair use for running images in the print version and posting a wonderful set of slides on the NY Times website. Those are all the usual questions that arise in almost any copyright conversation about art and copies.

I want to raise another important issue. Rauschenberg's success as an artist depends on his creative uses of existing materials. Yes, sometimes he uses old tires, and I don't think that Goodyear has much to say about it. But in many of his works he uses existing (evidently) copyrighted works: photos of JFK, sports images, political posters, newspapers, and more. Surely, he did not get permission to use these works, and Rauschenberg scholars out there can tell me if he has ever had a copyright challenge over these creative uses.

His use of, say, a newspaper page stumbles over a host of copyright issues. It may be a reproduction, and when it hangs in a museum it is a public display. It certainly looks like a derivative to me as he transforms and recasts the original work into art. Rauschenberg is a great example of two important copyright concerns. First, his creativity depends heavily on fair use. Fair use is essential for allowing artists and other creative folk to make good, exciting, and innovative uses of existing works. If you do not like Rauschenberg's art, I will even say that fair use is essential for permitting bad uses of existing works. Like his art or not (I like it), the world is a better place because he challenges us to see it differently.

Second, his work is an example of the importance of copyright owners *not* imposing restrictions on the uses of the images. Many owners and licensors supply photographic images of various works, and sometimes the service of making and delivering the copy comes with a license agreement that attempts to set conditions and restrictions on cutting, cropping, altering, etc. the original image. If those rules applied to his raw materials, Rauschenberg could not make his art from photos of Kennedy and Warhol could not produce his visions of Elvis, Marilyn, and Queen Elizabeth. We would not have a mustache on the Mona Lisa.

The world is a better place for having art. Almost always, the art gets instant copyright protection. Sometimes the successful creation of the art depends on freeing materials from the constraints of copyright and contract. I have no idea of their position on these things, but I hope that when the next artist wants to crop and clip a piece of a Rauschenberg painting, his estate will remember the virtue of sharing.