What began as a dispute over the source of Fairey's unofficial Obama campaign poster has turned into a showdown over "fair-use," the wikipedia-inflamed ability to engage in rifacimento--remixing, rebranding, but above all, reposting and sharing it again. But not for commercial gain, no never!Ripped straight from the copyright law of 1976:
The 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:This balancing test actually involves some pretty complex case law behind (and dancing around) each of the factors. Nothing is as at seems! But let me be the judge.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
1. Intended for non-profit use, not commercial (adv. Fairey)
2. Copyrighted hardcore (adv. AP)
3. I think this is where the answer lies. How much of the original photo remains? To my mind, it was completely transformed, from the mundane to a work of art (adv. Fairey)
4. If anything, this made people comb the AP archives to try to find the original photo. I can't see how this would reduce the value of the original; if anything, it would increase it (adv. Fairey)
O dear readers, what say you?
I tend to agree with you - although your defense of the crucial 3rd point might not hold up for the reasons you give. Saying it's been "transformed into a work of art" is a rather bold claim, isn't it? Couldn't one argue that the poster isn't really art - or even that the original photo was already art, and therefore nothing (as far as you're concerned, anyway) has changed?
ReplyDeleteI think the AP might actually have an advantage there, since the poster was clearly based on the photograph. Of course, any judgment of its "relation" to the original photo will be subjective.
I suppose what worries me most is the potentially severe effect this case could have. If the AP wins, where will the next Fairey get his/her material? Almost any halfway decent photo of Obama (or another major public figure) that you could find on Google Image Search is going to be copyrighted. (And Fairey's poster, like you said, is a rather benign use of the AP's photo that has, if anything, increased its popularity.)
Yikes, I didn't know that I would have to define "art" in order to save fair-use! You make two very valid points.
ReplyDeleteBut I think I got this: part 3, the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
Putting aside the definition of "art," it is true that the entire photo (the amount) is used Fairey's poster. However, in terms of substantiality, it is worth noting the amount of time spent my a number of people trying to find the source photo. It was very difficult, because the substance of the original photo was transformed; i.e., stripped of context and given new meaning. The difficulty in finding the photo is evidence of the transformation.
Would you know that it was originally an AP photo of Obama at a fund-raising dinner? Or, if you saw the original poster, would you assume that it was an AP photo? If so, the AP has a case, that this sends a message that the AP does not enforce their copyrights, and their material would be pirated endlessly. If not, and I think not, then the AP is trying to shoot the moon, as it were.