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Normally, the arguments in this case are whether Shepard Fairey's
artistic rendering of the image is an infringement of a photograph
by AP photographer, Manny Garcia. But in this case, Friedman
argues that the image doesn't have enough "copyrightable elements"
for it matter in the first place. Under copyright law, works are
ineligible for copyright protection if they do not contain enough
unique qualities that would differentiate them from others. For
example, photos of coins are generally not copyrightable unless
there are unique angles, uses of light, or other qualities of a
"creative" nature. Friedman argues that, while Garcia's photo may
contain some elementsthough he also argues they are minimal
at bestFairey's artistic rendering virtually removes them: that
Fairey's image has few, if any, copyrightable elements. His article
states, "the poster entirely changes these details by transforming
them into a stylized combination of red, white, and blue. Moreover,
it is plain the colors of the photograph are in marked contrast to the
colors of the poster."
Friedman's logic concludes that if Fairey's photo has no
copyrightable elements, then how can such a work infringe on any
While an intriguing question, one that I hadn't heard raised before,
the artist in me has a hard time buying into the notion. Fairey's
is a very identifiable style, one that Friedman himself applies to his
own image, as shown here.
Not only does Fairey's rendering enjoy its own protection under copyright,
but the fact that it was derived from Garcia's photo means that Fairey's
ability to use the work is limited. No one disputes that. Where the
real argument begins is discerning the conditions where Fairey is limited,
and where he's not. That is, unless he gains permission from Garcia,
Fairey's use of his own rendering is limited to "editorial" uses, such
as artistic display, political or social commentary, satire, and so on.
On the other hand, "commercial uses" require Garcia's consent, such as
when the image to advocate a product or service, or to promote an idea,
including political or religious points of view. These are the types
of uses that define "commercial use" as described by most state publicity
laws. Granted, publicity laws and copyright laws are different, but the
definition of terms are consistent.
And herein lies the ultimate question: is the Fairey "Hope" poster a form
of protected political speech, or a commercial use? As Friedman points
out, political speech is at the heart of the First Amendment, and people's
right to express themselvesespecially on matters of politicsis always
given deference by the courts.
While a true statement, it's not quite that simple. Just because the
Fairey image has been used in a political context does not necessarily
imply that it's "political speech." And even if it is, the greater question
is whether you can appropriate anyoneor anythingas a tool in that
speech. For example, if the Fairey image were of a recognizable factory
worker holding a hammer, and that person was an ardent Republican, we
can be very sure that this person would sue Fairey for suggesting that
he was an advocate for Obama. And the courts would not even begin to
entertain the notion that this use of the image was "protected political
speech." The First Amendment has its limitations, and this is such an example.
Although "property" (such as a copyrighted photograph) does not enjoy
the same protections as people's rights of publicity, the point of the
example was more to illustrate that the use in question is would fail
a critical Fair Use test: it's an advocacy piece, and when advocating a
political idea, you cannot misappropriate someone's likeness or their
property without their consent. The ideas, opinions and expressions have
to be yours, and yours alone. You have the right to express an opinion
about someone in a political context, but misappropriating their property
(or someone else's) for that purpose is not the same thing.
What if Fairey applied his artistic rendering technique to the Pepsi logo
and added the phrase, "Obama's Generation." One can imagine that Pepsi
would not take so kindly to having their logo misappropriated in such
Now, if Fairey's work were merely a piece of art hanging in a museum
or an art gallery, courts have deemed this as Fair Use, regardless of
the price that it may command, or even whether he copied it directly
from Garcia's photo. (“Commercial” use is not not measured solely
by monetary consideration.) Yes, one can appropriate another work, a
person, or a logo without their consent, for purposes of artistic expression.
But which is the Fairey image? Protected art form? Or an advocacy
poster? We have competing notions, but which carries more weight?
To reconcile this logjam, courts often take into account is the
predominant use? Is it used more as an art form? Or as a form of
Or is he just out to make a buck?
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