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

Reconciling Fair Use
Although Picasso is credited with once saying that “good artists copy, great artists steal,” the statement suggests he wasn’t terribly concerned with fair use issues. What’s inescapable, however, is the reality that as each photographer matures—like any other artist—each tends to integrate aspects of other photographers’ styles and works into what becomes the photographer’s own, unique style. In most cases, this integration takes place without directly impacting copyright and fair use issues.

Today, however, there are some who question whether fair use in the United States is no more than the right to hire a lawyer to defend the right to create. While that might appear to be the case as a result of cases like those involving Shepard Fairey and Richard Prince, those cases are, relatively speaking, isolated incidents. It’s also something of an exaggeration to suggest that because Fairey and Prince may face liability for their acts, the right to create has been curtailed.

There’s no question that fair use, at least as it exists in the United States, can be terribly confusing, complex and unpredictable. However, as even Lawrence Lessig concedes, “I think the world with fair use is better than the world without it.” Undoubtedly, the debate about whether fair use is fair will continue, unabated, for years to come.

Recent Developments

Shepard Fairey dealt his case a setback by admitting that the Obama HOPE poster was based upon a different Mannie Garcia photograph. In papers filed with the court on October 16, 2009, Fairey’s attorneys admitted that Fairey was mistaken when he originally identified the Garcia photograph of George Clooney and Barack Obama as the reference used to create the now iconic poster. According to a statement published on Fairey’s website, Fairey admitted that a different Garcia photograph—a tighter image of Obama alone and, notably, the image that the AP has long asserted Fairey used—served as the basis of the HOPE poster.

The papers filed with the Court also admit that after Fairey realized his mistake, he attempted to destroy the files he actually used when creating the HOPE poster.

In the wake of these revelations, Fairey issued a public apology, taking responsibility for submitting false images and deleting other images. Various reports also suggest that Fairey’s lawyers intend to withdraw from the case.

While the basic fair use issue hasn’t changed, Fairey’s admissions create several significant problems for his case. The fair use argument is more difficult given the amount and substantiality of the Garcia photograph Fairey now admits was used to create the HOPE poster. In addition, Fairey’s admissions—including his public apology—may be used at trial to undermine his credibility. Only time will tell how significant an impact this combination of factors will have on the outcome of the case.

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


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