A Question of Fair Use

Fairey v. the APFairey v. the AP

Disclaimer

Any copyrighted material on these slides is included as fair use for educational purposes only and not for profit. It will be removed at the request of copyright owner(s).

Now let’s begin.

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Have you seen this?

The poster was created by the artist Shepard Fairey.

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Fairey supported Barack Obama in the 2008 presidential campaign and created a series of posters.

On the Internet, Fairey sold posters and T-shirts with the poster’s image. He used the money he made to make more posters.

He gave away hundreds of

thousands of them to Obama supporters.

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The posters were a hit.The Obama campaign adopted the poster for the campaign. The image stayed the same, but the words at the bottom of the poster varied between HOPE, PROGRESS, VOTE, and CHANGE.

After Obama’s election, Fairey created a similar poster for the inauguration.

Magazines have used the poster on their covers.

A print of the poster now hangs in the U.S. National Portrait Gallery in Washington, D.C.

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But a problem arose.

The Associated Press, a major news organization, wrote a letter to Fairey.

AP said that Fairey had copied, without permission, its photograph to make his posters.

Photograph by AP photographer Mannie

Garcia.

AP demanded that Fairey pay it a licensing fee and part of the money he had earned from selling T-shirts, etc., with the poster image.

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The Lawsuit

Fairey admitted using the photo, but he believed he had done nothing wrong. He filed a lawsuit asking a court to declare his use of the AP photograph as fair use.

AP filed a counterclaim to the lawsuit. It claimed Fairey had violated its copyrighted photograph. It stated that Fairey’s use of the photograph was not fair use.

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Imagine you are taking part in this case…All of you are going to play one of the following roles:

You will work in partners to prepare for the case. Your teacher will let you know if you and your partner

are judges, lawyers for AP, or lawyers for Fairey.

Judge

Lawyer for AP

Lawyer for

Shepard Fairey

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Law School?Just in case you haven’t completed law school, here is some information you’ll need to prepare for this case. (Feel free to take some notes.)

A photograph is intellectual property and is protected by law.As soon as a photograph is taken, it is automatically copyrighted under U.S. law.

The purpose of copyright laws is to promote knowledge and creativity. It gives people incentives to create more because they will be compensated for what they create.

Nobody may copy the photograph without the permission of the owner of the copyright.

The Basics of Copyright

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The Fair Use ExceptionAn exception to copyright is fair use.

Let’s say that someone is reviewing a movie on a blog. The reviewer may use a short clip from the movie to comment on it. This is fair use of the copyrighted movie.

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The courts have long recognized the fair use exception. Congress wrote it into the 1976 Copyright Act.

The fair use exception has the same purpose as the copyright law:

To promote knowledge and creativity.

Now that you have taken the Copyright and Fair Use law school course, you’re ready to start preparing for this case.

You need to consider four questions.

(Oh…feel free to keep taking notes.)

Be sure to pay attention to the answers Fairey and the AP give to the questions. These answers will help you lawyers create your arguments and judges predict what the lawyers will argue.

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Was the copying done for commercial purposes? (The law favors non-commercial uses.)

Fairey: No, it was not a commercial use. I made no money from the posters. I donated all the money to making more posters, and I gave away hundreds of thousands of posters free.

AP: Yes, it was a commercial use. He sold T-shirts, etc. What he did with the money does not matter.

1.

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Did it transform the copyrighted work? (The law favors creativity over just copying.)

Fairey: Yes, it completely changed it. It took a news photo and changed it into a “stunning, abstracted and idealized visual image” with a powerful new meaning and message.

AP: No, it hardly changed the original photo. Fairey kept “the heart and essence” of the original, including “its patriotic theme.” Fairey’s art is just “computerized paint by numbers.”

2.

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How much was copied?

The law favors those who use only a small portion of the original work.

What do you think?

3.

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The law favors uses that do not lower the value of the original work.

Fairey: AP sells most of its photos to news organizations. This photo only had value as a record of an event in 2006. Fairey’s use of the photo gave it a lot of publicity and actually increased its value.

AP: AP licenses its photos for many purposes. For example, political campaigns frequently buy licenses to copy photos. If artists and others copy AP photos without paying for a license, AP will lose a lot of money.

How did it effect the original’s value?4.

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Get Ready for CourtTo prepare for court…

Think of arguments you will make to the judges about the four questions.

You might divide the questions between partners.

Work together to share and polish your arguments.

Predict what each side will argue and think of at least three questions you will ask each side.

Decide who will question each side.

Your teacher will let you know how much time you have to prepare for the case. Ready…set…

prep!www.educateIP.org

Time to Go to Court!

The judges in the group will run the court. The judges should …

1. Have the lawyers present arguments in this order: Attorneys for Fairey present first. (3-4 minutes)Attorneys for AP present second. (3-4 minutes)

2. Keep order in the court.

Your teacher will match you and your partner with a team of judges and the opposing lawyers.Once you are in your groups:

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The VerdictYou’ve heard and discussed the arguments. No one factor by itself should determine the outcome. Weigh all the factors and decide whether the copying was a fair use.

1. Was it done for commercial purposes?

2. Did it transform the copyrighted work?

3. How much was copied?

4. How did it effect the value of the original?

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The case of Shepard Fairy v. Associated Press

has not yet been decided by the courts.

When the judges decide this case, they will look at four

factors that Congress used in making copyright and fair

use laws.www.educateIP.org

The Four FactorsCongress said that no clear definition of fair use is possible. It said that “each case raising the question must be decided on its own facts.” The law gives courts four factors to consider:

1. The purpose of the copy.2. The nature of the original work.3. How much of the original work was copied.4. How the copy might affect the value of the original work.

You used three of the four factors today!

If you are interested in following the case, it’s easy to get information online by searching a news site with the search term Shepard Fairey v. Associated Press.

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What Do You Think?

Do you think this is an easy or difficult fair use case? Why?

What arguments did you find most persuasive? Least persuasive? Why?

Why do think there is a fair use exception to copyright laws? Do you think there should be one? Why or why not?

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This project is a collaborative effort of Street Law, Inc. and Constitutional Rights Foundation.

Educating to Protect Intellectual Property (ePIP) is funded by grant 2009-BE-BX-0001 from the United States Patent &

Trademark Office and supported by the United States Department of Justice.

Developed by Marshall Croddy, Bill Hayes, Damon Huss, Laura Wesley

Written by Bill Hayes

Produced by Keri Doggettwith Andrew Costly

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