The Associated Press is alleging that a street artist named Shepard Fairey, who became well known for his “André the Giant Has a Posse” sticker campaign, has infringed upon copyright laws that are used to protect photojournalists from copyright infringement. The U.S. Copyright Office’s website says the nature of the copyrighted work can be used to determine wether or not an infringement has occurred. The image in question has been drastically altered and used in a different field for a different purpose.
That purpose calls in to question the nature of the work because Fairey is not a journalist, he is an artist who benignly yet impulsively used a random photograph of a public official; he could have easily taken the photo from a photographer that would not have complained about infringement. The Copyright Office website says that courts have determined that incidental and fortuitous reproduction can be considered fair use.
The Huffington Post reports that Fairey said, “I’ve always decided not to go through the bureaucracy. My philosophy is usually if I want to make things happen I’ll just act first and apologize later.” The article goes on to say that he created that design in one day.
The U.S. Copyright Office says that the effect of the use upon the potential market for or value of the copyrighted work can be used to determine fairness. It would make more sense to claim infringement upon someone who is a competitor in the field that attempts to report factual information instead of an artist who is obviously not attempting to compete on the same market.
The Huffington Post also reported that Fairey eventually got an endorsement from the Obama Campaign for the posters, and that Fairey said that he corresponded with campaign officials about what the posters would portray. This should point out how his work does not relate to the work of a photojournalist because Fairey is not portraying fact and is not remaining objective and unbiased. Therefore he is not operating on the same market and there was no financial interference.
The photographer working for the AP is quoted on the TechCrunch website as not having signed a contract with the AP because he was a temporary staffer who was filling in for someone else. It is arguable that the AP does not even have the copyright to the image that they are claiming Fairy infringed upon.
Fair use is not easily defined by the law according to the Copyright Office. It may be a advisable to the AP to protect their ‘image’ by staying out of arbitrary legal disputes that reinforce the notion that legality should be used when and wherever possible. Fairy ultimately caused no harm to the organization. The AP is possibly jeprodizing their image of objectivity by pursuing this issue legally.
U.S. Copyright Office
http://www.copyright.gov/fls/fl102.html
The Huffington Post
http://www.huffingtonpost.com/ben-arnon/how-the-obama-hope-poster_b_133874.html
TechCrunch website
http://www.techcrunch.com/2009/02/05/once-again-the-ap-tries-to-redefine-fair-use-goes-after-shepard-fairey-for-obama-poster/
