Did artist Stephen Fairey commit copyright infringement when he painted the image of President Obama and based that painting on a photo owned by the Associated Press?
The Associated Press has approached Mr. Fairey and is claiming that he has in fact infringed their copyrighted photo.
A photo of course is generally protected under Copyright Law; however, one question that I have here is how much creativity is actually in a head shot. Is it truly enough to even receive copyright protection? If so, what is it that is creative about this head shot to merit the protection? I've not reviewed the case law on the issue, but I think there is certainly some room to argue that there is not enough creativity in this particular photo to merit copyright protection.
This is in fact the argument rised by Georgetown University law professor Rebecca Tushnet, who indicated in a BBC interview that it could be argued that what Mr. Fairey copied was the basic fact of Mr Obama's features, which do not have a copyright.
The problem, of course, with this argument, is that if a photo like this were not copyrightable, then you might have trouble arguing that news-type photos are ever copyrightable. All it takes is a very minimal amount of expression to constitute a copyrightable photo, and in all likelihood, this photo would meet that very basic standard.
Having said this, even if the photo were in fact copyrightable, a second hurdle exists to proving infringement: the fair use exception.
What is the fair use exception?
Section 107 of the Copyright Act states as follows:
[T]he 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
So, would the mass distribution of this photo constitute a fair use?
In my opinion, no. While there is an argument that this painting was not made for commercial purposes because it was used in a political campaign, I think that there was a commercial element to the distribution. Also, the entire photo was utilized and while you might be able to argue that the painting has made the photo more valuable, I am not convinced by the argument. The photo is just a head shot--far less interesting than the painting.
The Stanford University Fair Use project thinks differently and is involved in Mr. Fairey's defense.
This should be an interesting case to watch. It is a good reminder to artists that they should work these issues out in advance of creating works based on photos. Moreover, it is always a good idea to verify that you have a license on a copyrighted work before you begin distribution of that work. Otherwise, you may very well end up in federal court trying to defend your actions after the fact.