By Alan Behr

NEW YORK, 3 MARCH 2009

I. Don’t Fight the Law. It May Simply Change its Mind.

Even a few years ago, street artists such as Shepard Fairey had to rely on shameless self-promotion, print media and luck to make their presence felt. Now they have only to rely on shameless self-promotion and the Internet; if the latter makes things go viral, there isn’t much more to do than to kick back and get famous – unless The Associated Press, one of the last great powers of the print age, threatens to sue. That was the situation faced by Fairey when, a day before the expiration of the AP’s deadline for him to accept a license and pay damages for the unauthorized use of a news photograph, the artist launched a preemptive strike by suing the AP in federal court in New York City.

Fairey made a number of posters based on the photograph, most notably Obama Hope, a work of instant political art that, although not formally endorsed by the Obama campaign, quickly became the candidate’s iconic image. It shows then-Senator Obama staring upwards in quiet contemplation – a man with a vision for tomorrow – above a single, evocative word: hope. Obama Hope is now on view at The Institute of Contemporary Art in Boston as part of a retrospective of the artist entitled Shepard Fairey: Supply and Demand. A variation has joined the permanent collection of the National Portrait Gallery, in Washington. Another variation was an inaugural poster that added images of the Capitol and the White House. For a thirty-eight-year old street artist from Charleston, South Carolina whose prior fame existed in good measure on repeatedly getting arrested for applying graffiti where the law says it should not be, you can only conclude that going viral has its advantages.

Mannie Garcia / Shepard Fairey

In his lawsuit, Fairey asks for what is known as a declaratory judgment: essentially, a statement by the court that he has done no wrong, owes the AP nothing, and can continue to exploit his Obama artworks, even if they are based upon an AP photograph. Fairey’s lead attorney is Anthony Falzone, a lecturer at Stanford Law School and the executive director of the Fair Use Project. Stanford’s faculty includes Lawrence Lessig – the copyright bar’s closest approximation to a celebrity. Although perceptions may alter when Lessig leaves Stanford for Harvard later this year, the Bay Area is commonly seen as the stronghold of the legal, cultural and political forces seeking to liberalize the application of copyright law. That includes Creative Commons – a nonprofit organization seeking to help creators use the work of others by encouraging more liberal licensing terms, among other projects. A thematically related initiative is open source (for computer code). The legal slang for much of it is the “copyleft,” in contrast to traditional copyright.

II. Copyright is like Real Estate. It’s just a Good Deal More Fun.

Historically, copyright cases have been like real-estate cases involving art: the battle is about proprietorship and its consequences. Cases usually center on who owns a piece of intellectual property or whether and to what extent someone else has to pay the owner for exploitation, whether authorized or not. Cases therefore typically run along the lines of author vs. publisher, musician vs. record label, screenwriter vs. movie studio and the big one: owner vs. claimed infringer.

Over the preceding decades, until about the middle of the 1990s, American courts had shown an increasing willingness to expand the protection of intellectual-property rights and even to find them where they formerly weren’t believed to exist. One result in copyright law was to constrict the doctrine of fair use, which lets non-owners of a work use portions of it without having to be accountable to the owner. For example, it was once commonly accepted, or at least commonly hoped, that, under the doctrine of fair use, you could use perhaps just a few bars from a popular song in a movie or a television show without having to pay the music publisher. These days, if a character as much as hums a handful of notes from a song, the producers expect to credit and pay the music publisher.

III. When the Nerds Battled the Lawyers, the Nerds Won.

Working against that change in the law were advances in technology. In the early 1980s came the PC, and when the Internet arrived and linked all that user hardware together, it quickly became possible, for the first time in history, for the average person to make and deliver perfect copies of professional audio and visual content, from three-minute pop songs to feature films. In the USA, where broadcast television was always free, the Internet was seen from the beginning as an electronic medium analogous to broadcast or, at most, cable TV: pay your monthly access charge, and whatever comes over the line is fair game. Once news and music became available and exchangeable through the Internet, the business models of newspapers and music labels began to crack and splinter.

In the meantime, perhaps as the result of an independent social trend or, more likely, a consequence in part of that change in technology, the legal and social dialogue began to move from how proprietorship should be protected and monetized to whether property rights should be limited and even whether, in some cases, they should exist at all. It was only two years ago that, speaking to a group of non-governmental organizations at the United Nations, I got my first question from an audience whether proprietary content should be made available for free because it represents not the expression of its creator but a manifestation of communal values and ideals. At the time, I thought the question charming and naïve (and still do), but that notion continues to gain currency.

When technology gives people a capability they want but the law says they cannot have (such as downloading recorded music for free), social norms tend to modify to make that conduct acceptable. Reach a tipping point, and it is left to the law either to make it legal or to forget about enforcing, except in extreme cases, whatever rules make it illegal. Even if downloading without permission of the copyright holder does not become legal (and there is no sound reason why it should), for much of the first generation raised with computers in the home, it has become a socially accepted wrong. It is not seen as something that brings shame upon the family (such as Dad’s arrest for tax evasion) but as the kind of self-help only a governmental nag would criminalize (such as when Mom sneaked past customs those Gucci scarves she bought to cheer up after filing for divorce from her tax-cheat husband).

IV. Shepard Fairey: Portrait of the Artist as a Litigant.

The Copyright Act of the United States, in keeping with the law of other Western nations, doesn’t contain a presumption that the creator of a work of art necessarily has made something that deserves copyright protection. Although the courts have held the standard of creativity is minimal, you still have to prove you’ve done something unique to win exclusive rights to it. In his lawsuit against the AP, Fairey challenges The Associated Press to do just that. The news service will therefore have to show that there is something so creative about its photograph of perhaps the most-photographed man in recent years as to constitute original expression. In that regard, the AP will likely have to deal with one embarrassment: it took several weeks of detective work by blogger-photographers and some false leads before the image used by Fairey at the starting point for his poster was identified.

In his complaint against the AP, Fairey asserts (first on information and belief, then as raw fact) that the correct source turned out to be a photograph taken in 2006 at the National Press Club in Washington by a photographer named Mannie Garcia while on assignment for the AP. (Another complication, not yet made a part of the lawsuit, is that Garcia, who at first was also unaware that he had taken the picture, has now come forward, claiming that, under the deal he had in place with the AP at the time, he is the true owner of the copyright and the photograph, and not the AP.)

On February 26, Lawrence Lessig and Shepard Fairey spoke at The New York Public Library (along with the author Steven Johnson). To drive home the point about the difficulty in finding unique creative elements in the Garcia photograph, Lessig populated a screen with similar photographs of President Obama taken by others; each time a new photograph came up, he playfully asked Fairey if he had finally hit upon the right one.

Assuming ownership of copyright-protectable creativity can be established in the Garcia photograph (and it very likely can), the operative question will likely shift to one of fair use, which is where Anthony Falzone’s expertise will come in handy. Of particular interest to copyright lawyers is the question of whether Fairey can show that his use of the photograph was fair use because his work was “transformative” – meaning that it so altered the purpose or character of the photograph that it represents new expression, bears new meaning or carries a new message.

In his complaint (in which his company, Obey Giant Art, Inc. is a co-plaintiff), Fairey sets out the artistic interpretation he made of the Garcia photograph, pointing to his use of abstraction. He notes as well that his intention was to transform the effect of the image from document to a graphic metaphor in order “to inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader…” He claims to have made the original poster as act of political conviction and to have financed production from sales at modest prices.

Fairey now insists that the photograph he used was one that included both the senator and the actor George Clooney. That help would support his assertion that his alterations substantially transform the original and that what he did was fair use – because voluntarily cutting George Clooney, of all people, out of an image should indeed be a considerable alteration of what it was intended to convey.

The Internet, that vehicle that so aids Fairey in his work, is also the tool by which James Danziger has been able to get out his latest message: that the Mannie Garcia photograph that Fairey used was not the one that included George Clooney. Instead, reported Danziger in his blog, the source was a tightly composed Mannie Garcia portrait of Barack Obama taken at the same 2006 event, as demonstrated in a digital overlay of that photograph with the Fairey artwork: http://pictureyear.blogspot.com/ 2009/02/frankenstory.html. The original overlay is credited to, and rather ironically bears the copyright notice of, a graphic artist named Steve Simula.

The version of the Mannie Garcia photograph that includes George Clooney shows the future president attentive to what an off-camera speaker is saying. The Garcia portrait of Barack Obama, in contrast, captures fully that inspiring look that has become so familiar from the Fairey posters. Danziger is right that the overlay appears to demonstrate that Fairey did what grammar school teachers say you can do if you want to copy a work but never if you want to claim it as your own: he traced it (perhaps electronically). Art still is best consumed live. In an exhibition that closed at his New York gallery, Danziger Projects, two days after Fairey spoke with Lessig, Danziger had the Garcia portrait hanging perpendicular to versions of the Fairey poster -and the resemblance was plain to see.

Danziger has so wearied from his association with Shepard Fairey and the controversy, he calls the whole episode “Frankenstory.” Although Danziger believes that Fairey’s versions are transformative fair use despite his reliance on a much closer source image than Fairey alleges in his lawsuit against the AP, he also believes that Garcia got shortchanged by a lack of attribution and that Fairey has made a good deal more money from the whole business than he has publicly admitted receiving. “I am still a fan of Shepard Fairey’s work,” remarked Danziger at this gallery on the last day of his exhibition featuring the artist, “but I am no longer a fan of him as a person.”

V. Consequences

Statistically, the fair-use factor that has proven most consequential in determining if there has been fair use, as provided in the Copyright Act, is “the effect of the use upon the potential market for or value of the copyrighted work.” As Fairey pointed out in his library talk, the Mannie Garcia photograph is actually worth more than it ever would have been, thanks entirely to Shepard Fairey. Danziger agrees; his gallery’s signed exhibition print carried a price of $1,200 solely because of what Fairey had done.

The Associated Press will attempt to prove that the posters, despite Fairey’s alterations, do not merely “reference” the Garcia photograph, as Fairey insists. To show they are actually infringing copies of the photograph, The Associated Press will point to the similarities and may include an attempt to demonstrate that Fairey’s method involved more tracing or scanning than inspiration and alteration. In short, the AP will likely seek to show that the posters didn’t transform the photograph in a meaningful way but copied it and appropriated a market for it – the infringer’s version of a free ride, both artistically and financially.

Those of us who work to protect the increasingly embattled rights of people who rely upon their creativity to earn a living have to wonder if The Associated Press has overplayed its hand, thereby causing trouble for us all, at least from a public-relations and potentially from a legal point of view as well. As Fairey observed in during his presentation, when, for a time, Reuters thought one of its photographers had taken the photograph, it said it was honored that Fairey had selected it. Should the AP lose and a decision against it get on the books, that precedent will likely act as a new barrier over which others seeking to enforce more substantial copyright claims will be obliged to climb.

Whatever the outcome of the case, in a general sense, the law appears to be moving toward a greater acceptance of the ideas of the left wing of the copyright bar. We could be dramatic about that: La propriété, c’est le vol! (“Property is theft!”) said the anarchist Pierre-Joseph Proudhon, back in 1840. A more modest and more likely outcome will be a reinvigorated fair-use doctrine.

At a time in history when, legally or not, everybody can pretty much make, possess and transmit content in a way that was once the exclusive preserve of media companies and government, the law may simply be acknowledging what the bottom line of what so many of those media companies and the personal finances of some of the authors, photographers and other artists has already proven: once you release your intellectual property to a newly liberated public, the once-rewarding task of getting it to send money back to you has become the great frustration of the creative community.

Alan Behr practices intellectual-property law at the New York office of Alston & Bird LLP. This article is based in part on material he presented while speaking recently on media and entertainment law at Columbia Business School and the University of Pennsylvania Law School. Mr. Behr commented previously on The Art of Barck Obama for Culturekiosque.com

Title image: Shepard Fairey
Photo courtesy of The Institute of Contemporary Art, Boston

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Pierre-Joseph Proudhon: What is Property?
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