Is Fair Use a Fair Legal Concept?

The e-mail newsletter Ethics in Graphic Design (which can be followed on Twitter here), smartly produced by Eileen MacAvery, routinely touches on issues close to my heart. The most recent e-blast leads with the question: “Was Shepard Fairey’s use fair?” It’s a reference, of course, to Fairey being sentenced to two years probation and a $25,000 fine for tampering with evidence in his copyright battle with the Associated Press. In 2009 the Associated Press sued him for copyright infringement over a photo by AP photographer Mannie Garcia, which Fairey used for his famous HOPE poster. Fairey then filed a suit against the AP, contending that using the photo fell under the doctrine of fair use. In the process, it was discovered (and Fairey later admitted) that he had lied to the court about the original photo that he used, and destroyed documents that were relevant to the case. This was not the best strategy on his part, and Fairey is lucky to have gotten off without jail time, as the prosecutor in the case, Daniel Levy, would have preferred.

Ethics in Graphic Design took this as an opportunity to address the “Fair Use Will Protect Me” myth about copyright. Quoting the very useful website (which addresses “Copyright Myths”) Plagiarism Today, MacAvery notes:

 . . . most people who claim fair use are misreading the law. Fair use is meant to balance free speech against the rights of the copyright holder. Fair use is an affirmative defense; you would have to prove it after you are sued. Fair use is not meant to protect you from a lawsuit, but rather from having to pay damages after it is over.

The definition of fair use is the copying of copyrighted material for a limited and transformative purpose; to comment upon, criticize, or parody. The term transformative is as ambiguous and vague as it seems, and it’s done so intentionally. Like free speech, judges and lawmakers want an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories: commentary and criticism, or parody.

Fairey and his Rubylith. (Photo provided by Shepard Fairey)

Fairey’s criminal liability for tampering with evidence is clear. Whether “Fair Use” was the valid defense in the civil suit is still in question. Financial settlements were finalized regarding future credit and use of the Obama image, so we’ll never hear the findings.

This is murky territory, made murkier by Fairey’s mishandling of a serious legal matter. However, the freedom of artists to retain rights or ignore same in the name of art is of the utmost importance, going beyond the boundaries of law. If King Solomon were in the room, he might have cut this baby in half. The photograph of a public figure in a public place should, arguably, not be bound be the same ownership rights as a privately produced portrait. Yet the photographer’s particular and unique perspective should be acknowledged. Thus, the fairest thing is not “fair use” but fair compensation. If I use your work to make my art, then you should be paid a reasonable rate for my use of the raw material.

I don’t believe that Fairey’s “fair use” argument holds its own, but neither do I believe that the reproduction of a public figure in a public context has the same protections. Half a baby, anyone?

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For more Steven Heller, check out The Education of an Art Director, one of the many Heller titles available at MyDesignShop.com.

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7 COMMENTS

  1. I’m a comedy writer and parodist, so take all this FWIW. (And sorry for the long comment, but one thing led to another…)
    What is seldom noted in these debates is how the “fair use” bar seems to be much higher in print than in other media. Would Fairey be in this pickle if HOPE had been a commercial aired in 2008, rather than an image that persists even today? My guess is, probably not. And if fair use is interpreted and applied differently and unequally across media, is it really about the abstract protection of authorial rights (something most of us would agree with), or about other, grubbier things?
    Even with the robust precedent afforded parody, what would SNL or Fallon or The Daily Show look like if all their content had to be vetted to the same standards as a printed product? I’ll tell you: they wouldn’t exist. Even if the corporate parent wanted to take that risk (which they wouldn’t), the production schedule would be impossible. And yet they DO exist, and we’re all glad they exist, and the idea that, say, Colbert’s set is too reminiscent of some news program’s is laughable.
    And yet how is the creation of that set, cobbled together out of hackneyed news set tropes, so much different than Fairey’s taking a photograph of a public figure, cropping it, redrawing it, then applying a graphic treatment so striking that it itself has become parodyable? That alone suggests that it has been transformed sufficiently; if somebody applies a “Fairey filter” to a photo of Jeff Bridges from The Big Lebowski with “ABIDE” below it, they’re not referencing the AP photo, they’re referencing what Fairey did to it. Garcia’s photo has been replaced; Fairey’s treatment clearly a self-standing new thing, not because I say it is, but because it wouldn’t work as a joke if it weren’t. The viewer doesn’t think, “Oh, that’s a spoof of that AP photo of Obama sitting next to George Clooney.”
    I’m sure the legal-minded of you could tell me why I’m off-base, but that’s precisely the problem: culture is too important to be left to the lawyers, and these kinds of lawsuits are too often either cash-grabs by corporations, or people misusing fair use as a means to object to content. In book and magazine publishing, the bar is high and getting higher. Go look at a copy of MAD Magazine from 1964, with a Clairol ad spoof starring Ringo Starr; that’s something a lawyer would nix today. Arbitrary application and corporate gaming has basically destroyed fair use in corporate-backed print. 
    The interpretive aspects of this area of the law means that it rests on a completely arbitrary perception as to what is “fair” or “useful” or “harmless” or “necessary” and what seems fair/useful/harmless/necessary to me, as a comedy writer with one set of political beliefs, may not seem that way to a judge or corporate legal counsel. Creatives are increasingly being asked to predict legal opinions, and not only is that not something they can do, it shows just how sneakily restrictive our culture has become. I know of no corporate entity that has ever been materially harmed by a mass-market print parody, but what’s at issue often isn’t money, but ideas. There’s a growing perception that corporate entities have a right to control not only what they say to us, but what we say about them; it is how the Citizens United mindset expresses itself in the world of culture.
    In 1970, the world of print was vast and chaotic and infinitely more free than it is today; go look at an underground newspaper if you don’t believe me. There you would find much material as suit-worthy as Fairey’s–and yet the world did not end, nor did Disney’s brand identity. In addition to print’s other woes, I would contend that there has been a massive cultural shift away from media with “high-bar” fair use standards to ones with “low-bar” ones. And what seems to be audience preference for one medium is in part a instinctual preference for free speech. In a world where vast amounts of communication are by, for, or about corporations, a medium that cannot speak freely about this content will shrivel. If print standards begin to be applied to visual media, visual media will decay in the same ways, and because these high standards are not based on high-minded legal principles but simple corporate gamesmanship, I worry that it’s simply a matter of time.

  2. What about illustrators who use photographs within a collage? Is it legal or not to use images taken from magazines or books?  Even though the final product is very different from the source photos, the original images are usually recognizable. I see a lot of this in editorial illustration and always wonder what is permissable.

  3. This is certainly a sticky issue with no clear right/wrong. However, any artist creating a derivative work (and Fairey’s is clearly derivative of that original photo) that results in a reward for the artist should feel an obligation to also reward the creator of that original work. It’s a simple matter of respect for fellow artists. Respect the work (effort/talent/expertise/time) of your peer that provided the material that made YOUR work possible. This can be in the form of fair attribution, financial compensation or a strategic alliance. As I see it, regardless of the legal issues, the neglect of any significant contribution of a creative peer is what hurts our practice. Be fair, generous, honest and ethical and the legal questions become diminished.

  4. The silly thing is most fine artists (which Fairey really was and is) don’t get the training in fine art departments at universities and design and art schools (which Fairey got, at a really fine one) on this issue. Art faculty, who themselves also lack a proper understanding, see anything as acceptable to use or catagorize under “appropriation”. Any creative work that is “commercial” is considered free for the taking.
    But designers, illustrators, and photographers and other commercial artists know that, often, we are happy to let a fine artist use our work in some manner. As long as it is not used as an insult to us or the subject of the work or to promote some awful thing. The Obama print is a great example of the artist’s ignorance in not simply picking up the damn phone (or nowadays, searching online) for the name of the photographer and simply asking: “Can I use your fantastic image for a print? Here are some of my previous works. I will give you credit, etc.” The worst that can happen is they say no and the artist would have to search for the photographers that stood to the left and right of the one who won’t share the work. One of those three will surely share or, God forbid, ask a small fee be paid.
    Fine art faculty need to get with it. It is not the 1980s anymore. The world is much smaller. Teach art students the law and how just being nice and respectful of all creative people, goes a long way.

  5. A photograph of a public figure should be in the public domain but then again the original photographer needs to make a living.
    I have often taken photos and traced or manipulated them so that are totally different from the original – but I guess that is still breaking the law? Tricky one…

  6. Come now.
    Ferry copied a photograph, but in the end he drew a picture with his own hands and used it as an element in another overall composition. Don’t all artists begin with a model? And can this model never be publicly available photograph? Does fair use only apply if the resulting artwork is a parody or a criticism? If this is forbidden, then say goodbye to half the art ever made.
    As a graphic designer, I have been advised by lawyers that using a publicly available photograph as a basis for a new artwork was legal, as long as the resulting work was sufficiently transformative of the original model.
    The “sufficient” degree is where the muddy water starts, but if I were ruling on this case, I’d rule in Ferry’s favor because a) the final image was not a mechanical or digital reproduction, but one derived by the skill of his own hand, b) the resulting artwork would never be confused with the original photograph used as an element, and c) the public at large would have a hard time identifying the one photo of Obama from many others available at that time.