Fair Use – Free Expression – Does Fairey Have Any Hope?

Shepard Fairey’s last name is kind of ironic being that he claimed fair use, even though he just recently confessed to concealing his mistake by submitting false images and deleting others.

Tip #1-If claiming you are guilty of stealing someone’s copyrighted work based upon “fair use” at least be honest about which work you used.

A legal battle was launched in February by Fairey against the Associated Press. Fairey claimed his use of the photograph taken by AP’s Mannie Garcia of then-Senator Barack Obama appearing on the artist’s “HOPE” poster was not copyright infringement. The Associated Press fought back arguing willful copyright infringement over use of the photograph.

The artist originally stated that he based his poster on a photo of Obama sitting next to actor George Clooney. He has now changed his mind as to which AP photo he actually used in creating his work.

Fairey’s recent statement may hurt him in his case, especially since he is going to lose his attorneys led by Anthony Falzone, Executive Director of the Fair Use Project at Stanford University. The team has announced they intend to withdraw from the case since their client misled them, fabricated information and destroyed material.

Tip #2-Don’t lie to your copyright lawyer!

Despite his loss of credibility, the case brings to the front and fore a major issue in copyright law certain to affect photographers, composers and artists whose works are used in subsequent content. Subsequent users claiming fair use must show their use of the underlying work was transformative, namely the new use adds value to the original and the prior work is “transformed in the creation of new information, new aesthetics, new insights and understandings.” 4-13 Nimmer on Copyright ยง 13.05.

Was it OK for the artist to manipulate an existing image? How much of the original image was altered in the creation of his poster? Was it enough to add red, white and blue and the word, “HOPE?”

Fairey stated, “Regardless of which of the two images was used, the fair use issue should be the same.” So we have artists and free speech advocates on one side versus photographers and journalists on the other side.

It will be interesting to see the outcome. Either fair use will triumph or Fairey will have to pay for use of the photograph.

Tip #3-If you base your work on a previously copyrighted work, make sure it is original and transformative.