DPP Home Business Is Fair Use Really Fair?

Tuesday, November 10, 2009

Is Fair Use Really Fair?

As it exists today, “fair use” is a confusing and complex problem for photographers

While each of the four fair use factors must be considered when attempting to determine whether a particular use is a fair use, a 1985 U.S. Supreme Court decision somewhat reminiscent of the Orwellian notion that “all animals are equal, but some animals are more equal than others” provides some guidance. In Harper & Row Publishers, Inc. v. Nation Enterprises, the Supreme Court decided that the fourth factor—the effect of the use upon the potential market for or value of the copyrighted work—is “undoubtedly the single most important element of fair use.”

Even with the Supreme Court’s limited guidance, performing a fair use analysis is hardly a trivial matter. As Stanford law professor Lawrence Lessig said during his keynote address at a New York University seminar entitled “The Comedies of Fair U$e,” “[t]his is a law written for lawyers.” Surprisingly, Lessig admitted during the same seminar that he’s “against fair use. It’s not that I think it’s a bad thing; I think the world with fair use is better than the world without it. But what I’m against is the way that fair use shifts the focus of the debate from important questions that we ought to be thinking about as we recognize the way digital technologies have changed the way culture gets regulated.”

Perhaps the best thing that can be said of the fair use factors is that they don’t translate easily to real-world situations, particularly when dealing with photographic works.

Fighting Over Fair Use
Fair use is at the center of a lawsuit pending in New York brought by photographer Patrick Cariou against artist Richard Prince. Some may remember Prince as the artist The New York Times dubbed a pioneer of “appropriation art,” who photographed other photographers’ photographs and then exhibited “his” work in galleries, including a major exhibit at the Guggenheim in late 2007. In this case, filed in the U.S. District Court in New York at the end of December 2008, Prince is alleged to have appropriated Cariou’s photographs appearing in the book Yes Rasta and created a series of paintings incorporating copies of the photographs. Prince has defended his actions on fair use grounds. The case appears set to go to trial in mid-2010.

The case that has garnered more publicity, however, is the lawsuit between Shepard Fairey and the Associated Press regarding Fairey’s Barack Obama HOPE poster and a photograph that Mannie Garcia created while on assignment for the AP. Fairey, who’s represented by Professor Anthony Falzone and the Center for Internet and Society at Stanford Law School, filed a complaint in federal court in New York seeking declaratory relief—in this case, a court declaration that his HOPE poster doesn’t infringe the copyrights associated with the AP photo, or in the alternative, that Fairey’s use of the photo constitutes fair use.

Fair use originated as a judicially created doctrine that permitted an accused infringer to use copyrightable material without the consent of the copyright owner.

Falzone, who’s also the executive director of the Fair Use Project—a project with the self-described purpose of clarifying and ex-tending “the boundaries of ‘fair use’ in order to enhance creative freedom”—concedes in his blog that Fairey used the AP photo “as a visual reference in creat-ing the Obama Hope poster that became a ubiquitous symbol of President Barack Obama’s campaign.” According to Falzone, the Fair Use Project filed suit on behalf of Fairey “to vindicate his rights, and disprove the AP’s accusations.”

One of the aspects that may militate against a finding of fair use is the proceeds generated from the sale of HOPE posters. According to the allegations of the complaint, the company owned by Fairey and his wife sold the initial run of 350 HOPE posters for $45 each and then used the proceeds from the sale of the first run to print additional posters. By Election Day, Fairey’s company had sold approximately 4,000 posters at the same rate. The complaint also alleges that Fairey’s company used the proceeds from poster sales—which, although not stated in the complaint, appear to be approximately $180,000—to print and distribute nearly 300,000 posters for free. Thus, the court could very easily conclude that Fairey’s purposes were commercial in nature (even if he did use the proceeds to distribute additional posters for free). While the distinction of commercial versus noncommercial isn’t determinative by itself, it does make for a more difficult fair use case unless Fairey can show that his HOPE poster had a positive effect on the market for Garcia’s photograph.

The Fairey-AP case has developed an interesting twist. In early July, Garcia’s lawyers filed a motion to intervene in the action, asserting that Garcia is the rightful owner of the copyrights of the photo at issue in the Fairey-AP litigation. If permitted to intervene, Garcia seeks to recover damages for copyright infringement and to cancel Fairey’s copyright registrations. It’s too early to determine what effect, if any, Garcia’s intervention will have on the progress of the case.


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