Fair Use


Okay, so it’s a bit rough around the edges. I’m no artist — or lawyer, for that matter.

(In case anyone is unfamiliar with the legal jousting between the AP and Shepard Fairey, who created the iconic Obama “HOPE” posters, you can get up to speed here.)

5 Responses to “Fair Use”

  1. ng says:

    Good poster!
    Fairey pleaded not guilty in Boston today. He has been honored by Boston’s city government and was now arrested for defaming public buildings. He’s got a lot of battles to fight!

  2. dc says:

    The more battles, the better, for him: all publicity is good publicity.

  3. OaklanderOnline says:

    Nice image. You didn’t happen to go through this site, did you?: http://obamiconme.pastemagazine.com/ I’ve seen a few creations form this make-your-own-fairey-poster site.

    The AP suing Fairey, makes about as much sense as Campbell’s Soup going after Andy Warhol’s estate. In both cases, the original was reconceptualized. And why trademark Hope, anyway?

  4. dc says:

    OaklanderOnline: I did use that site to get started with the basic template, but since the AP logo is all red and has no shadows, the resulting poster had almost no blue on it, so I had to edit the image a fair amount “by hand” to get the blue shades around the logo, and to do some other tinkering around the edges. I’m not too good with image editing, which is why some of the curves and lines aren’t very smooth, but I had fun doing it.

  5. m says:

    From what I inderstand the criteria for fair use are numerous and reconceptualizing is just one part of a complex picture (so to speak, no pun intended).

    I don’t agree with the blanket dismissal’s of the AP’s case (not suggesting you’re doing that). Especially in cases like this, where the law calls for so much subjectivity in making a determination. If even the law itself can’t give a clear cut answer, why is it that so many commentators somehow can?

    I just think bashing the AP is the easy thing to do. When you read the legal factors used to determine fair use and other aspects of copyright law (again I’m not suggesting you didn’t, I’m speaking throughout this whole comment of the general tenor I’ve comments I’ve seen on the topic and what I inferred from them) I think it’s pretty clear that the AP has a legitimate case (not necessarily a case they should win, but one that isn’t unreasonable to take to court). Based on those same factors, I’d say it’s also clear that Fairey’s approach wasn’t so clearly in the right legally that it didn’t warrant his not crediting the original source material, and not getting permission from the copyright holder/buying the rights for the image first.

    I’m no expert or lawyer, but based on my lay understanding, the two criteria for copyright infringement are using a work without permission from the copyright holder, and whether the piece would to the average viewer resemble the copyrighted source material. Both of these seem to apply in Fairey’s case, giving the AP enough of a case right there, in my opinion, since the fair use criteria require quite a bit of subjective interpretation and therefore can pretty much always stand to be interpreted on a case by case basis in court.

    To determine if fair use applies as a defense, you’d look at all four of the following:

    1. the purpose and character of the work (was it for personal profit or public good, was copyright ignored in bad faith)
    2. the nature of the source material (was it a creative work itself etc.)
    3. amount of the source material used/copied (a small piece of the entire work)
    4. effect of “copied” work on the original piece’s value and profitiability in the market, which is the point you cite in your post

    Whether the piece is a parody or satire also affects the fair use issue. There is more leeway in such cases but there are still strict criteria involved and anyway clearly these exceptions don’t apply in this Fairey case.

    I don’t see what in this case actually makes the fair use issue so cut and dry as it seems to be to some, but I’d love to hear an explanation. I’m genuinely interested but just haven’t seen any clear, thorough explanations that refer to specific aspects of fair use criteria in their analyses.

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