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’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?