Last week I wrote about some of the important aspects of copyright law but I saved what is perhaps the biggest area of confusion for today – fair use. Fair use allows people to use copyrighted material without licensing it from the owner. It is a pretty big exception but there is often misunderstanding about what is and what is not fair use.
Fair use of a copyrighted image requires that the use falls into one of these seven categories:
- News reporting
These seem pretty obvious because we’ve been living with these exceptions for a long time but even fair use has its limits. Sometimes there is a fine line between fair use and infringement and sometimes that line gets crossed. Unfortunately, there is no way to know if a use is infringement or not with absolute certainty without it being challenged in a Federal court however, previous decisions can provide useful guidelines. The rest of this post will be about some of the cases that I think you will find interesting.
The first case involves work that you’ll recognize.
When President Obama was running for his first term of office, graphic artist Shepard Fairey created this poster that became the iconic symbol of his candidacy. Some of the places that you might have seen this image were in Time Magazine, Esquire Magazine, and even in the United States National Portrait Gallery.
Then Senator Obama wrote to Mr. Fairey:
I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can change the status-quo. Your images have a profound effect on people, whether seen in a gallery or on a stop sign. I am privileged to be a part of your artwork and proud to have your support. — Barack Obama, February 22, 2008
Pretty cool, right? I mean, regardless of your political affiliation, it must be something to be called out and acknowledged by the man that was to become the leader of the free world. Except that I wouldn’t be writing about it if there wasn’t a problem.
See it turns out that Mr. Fairey used this photo taken by Mannie Garcia for the Associated Press to create the image. And the Associated Press (the copyright holder) wasn’t happy about it. At all.
I think this is a good example because one might reasonably think that the poster image is sufficiently different from the original photograph to make it a new piece of work. The Associated Press challenged this case. I’ll spare you some of the details here but ultimately, Mr. Fairey settled the infringement suit in a closed settlement.
Here is another example of Mr. Fairey’s work (on the left) entitled Obey Giant. You may remember a few years back there was a big concern about SARS (Severe Acute Respiratory Syndrom) that badly effected the people of Japan. It was common to see photos in the media of people wearing masks as they went about their work. In response to that, Baxter Orr created Protect (image on the right) based on Mr. Fairey’s original work. Can you guess what happened?
It seems that Mr. Fairey wasn’t happy about it so he directed his attorney to send a cease and desist notice to Mr. Orr requiring him to remove the photo from his website. You can read more about his response here but to give you an idea of his response, Mr. Fairey is attributed as saying that Mr. Orr is ‘not an artist but a mimic and “parasite” ‘.
The next example I want to share with you is about the work of Walker Evans and Sherrie Levine.
Walker Evans is perhaps best known for his body of work with the Farm Security Administration. The FSA was (in an oversimplified description) a New Deal program that moved poor sharecroppers across the country to areas where they could better earn a living. Part of that program involved having photographers create imagery that could be used essentially for public relations to help sell the country on the New Deal program. Evan’s photo of Allie Mae Burroughs (above) was created for the FSA program.
Sherrie Levine is an appropriation artist. Appropriation artists use imagery created by other people and turn them into a new work of art. In this example, Ms. Levine attended an exhibition of Mr. Evans’ photographs and took photographs of his prints. She entitled the series After Walker Evans. Can you tell which is the original photograph and which is the appropriated artwork? Neither can I. The work was challenged by the estate of Walker Evans which resulted in the Evans estate owning the rights to Ms. Levine’s series.
I am including this next example to illustrate the point that even images published as news can be problematic.
Daniel Morel was in Haiti when the big earthquake hit in 2010. Because he was already there, he had was in a unique position to share his imagery with the world but, no surprise, the Haitian infrastructure was so badly damaged that he wasn’t able to easily communicate with people outside of the country to license his work. He did think it was important to share his work and somehow managed to post some images to Twitter’s TwitPic service. His imagery was re-tweeted. The French news agency AFP learned of the work, tried unsuccessfully to reach Mr. Morel, then ran the photos anyway giving the re-tweeter photo credit. The photo above was then picked up and was VERY WIDELY used.
Once Mr. Morel learned of the infringement, he sued AFP, Getty Images, CBS, ABC, and Turner media for copyright infringement. Most of those cases were eventually dropped or settled until only AFP and Getty remained. So can you guess what happened next?
AFP sued Daniel Morel for “Aggressive Assertion of Rights.” In the end, that counter-suit was dismissed and Mr. Morel was awarded $1.2 million dollars in damages.
Okay, one last example then.
Back in 1979, Jack Mackie and Chuck Greening created the public sculpture Dancer Series Steps that currently resides outside of Benaroya Hall (the home of the Seattle Symphony Orchestra). In 1997, Michael Hipple created the photo shown with a person standing on two of the brass footsteps. The image was licensed as a stock photograph and came to the attention of Mr. Mackie.
Before I continue, a little bit of background. When the sculpture was originally created, it was not registered with the US Copyright Office. Mr. Mackie learned about an infringement when the Seattle Symphony used a photograph of the sculpture in an advertisement. At that time, the sculpture was not registered so his best course of action was to take them to small claims court where he won a $1000 settlement. The sculpture was registered with the US Copyright Office at that time. Now back to this photograph.
Because the sculpture was now registered with the US Copyright Office, when Mr. Hipple’s photograph came to the attention of Mr. Mackie, he had additional protection. See, while a copyright is issued at the time a work is created, if unregistered and an infringement occurs, then the copyright holder can only sue for the fair market value of the infringement – so essentially, Mr. Mackie’s $1000 settlement with the Seattle Symphony is what he would have earned had he licensed the work to them for the advertisement. Once a copyright is registered however, things change in a potentially big way. For new infringements, Mr. Mackie was able to sue not only for the fair market value of the infringement, but also for legal fees, and for statutory damages of up to $150,000 per infringement. Worse for Mr. Hipple, while the Seattle Symphony’s use was relatively small, Mr. Hipple licensed his image an undisclosed number of times so the fair market value of the infringement was potentially very high. In the end, Mr, Hipple settled for an undisclosed amount of money and for a public admission of wrongdoing.
So I’ll leave it there for the week. What did you think of he cases I shared? Do you agree with the outcomes? Let me know what you think.