The LA Times covers a current lawsuit over the issues of what is Fair Use of an image. The street artist in question truly muddied the case by originally lying about his sources of the image and fabricating fake sources to cover himself. The author of the iconic Obama image took an AP Photo, then used only the outline of it, and added his own colors to it. The question is where does the Associated Press copyright end?
LA Time Editorial:
The Shepard Fairey-AP case: A clearer picture
The dispute over the popular Obama poster gives the courts a chance to better explain what is fair use of creative works.
Federal law provides general guidelines for determining whether the end results are legal or copyright infringements, including four factors
to consider on claims of fair use. These are the nature of the initial
work, such as whether it's fiction or nonfiction; how much of it was
reused; the purpose and transformative qualities of the new work; and
whether the new work reduced the potential earnings of the initial one.
Fairey's battle with the AP raises another important issue: What
aspects of a photograph can be copyrighted? By law, something can be
copyrighted only if it contains some amount of creativity or originality.
But the AP is effectively claiming copyright over an element that's
hardly original -- an outline of Obama's features, removed from any
hint of time, place or context.
Sadly, Fairey muddied the legal waters by lying to the court
about which photo he used as the source for his posters. For months he
claimed to have used just a portion of a larger photo, and he even fabricated evidence
to support that claim. He eventually admitted the deception, and his
first team of attorneys has since withdrawn from the case. It remains
to be seen how his admission will affect the proceedings.
A
key question, as with so many of these disputes, is how to distinguish
between a derivative work and something so transformative that it's a
fair use. Copyright holders frequently argue that they're entitled to
share in the revenue generated by anything that's built on one of their
creations. Letting people reuse it for free, they say, diminishes the
incentive for creating it in the first place. The framers of the
Constitution were so concerned about that incentive that they gave
Congress the power to grant inventors and authors exclusive rights over their works
in order to "promote the progress of science and the useful arts." But
there's a difference between preserving the incentive to create and
letting creators collect a toll from every author or artist who builds
on what they've done. And it's hard to see how the incentive to take
news photos is diminished when generic head-shots are stylized into
evocative campaign posters.
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