Was Shepard Fairey’s use fair?

Los Angeles street artist Shepard Fairey poses in front of the Barack Obama Hope artwork he designed in this 2009 photo. (Damian Dovarganes, Associated Press / September 8, 2012)

Last week Shepard Fairey was sentenced to two years probation and a $25,000 fine for tampering with evidence in his copyright battle with the Associated Press. Some, including prosecutor Daniel Levy, felt Fairey should have served jail time. Levy contends, “A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct.”

For those unfamiliar with the case, Fairey was sued by the Associated Press in 2009 for copyright infringement for using a photo by AP photographer Mannie Garcia. Fairey then filed a suit against the AP, contending that his use of the photo fell under the doctrine of fair use. The case got murky when it was discovered that Fairey lied about the original photo that he used as well as destroyed documents that were relevant to the case.

Plagiarism Today lists the belief “Fair Use Will Protect Me” as one of the top myths about copyright. They go on to state that 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. (1)

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. (2)

According to Stanford University Libraries, when assessing whether or not something falls under fair use, lawmakers use four factors:

1. the transformative factor: purpose and character of your use
(have you created new meaning, was value added to the original?)

2. the nature of the copyrighted work
(was the original work factual or fictional? typically you have more leeway if it’s factual)

3. the amount and substantiality of the portion taken
(in general, the less you take, the more likely you will be excused)

4. the effect of the use upon the potential market
(does your new work deprive the copyright owner of income or a potential market for the original work?)

In Fairey’s case the issue was eventually settled in a civil case without answering the question of whether or not his use of the AP photo constituted fair use under copyright law. The financial terms of their agreement were not disclosed and both parties agreed to share image usage rights for any posters or merchandise produced using the “Hope” image.

Fairey may have been sentenced for his criminal activity involved with this case, however the question still remains, would his use of the AP photo have been fair if he hadn’t lied and tampered with evidence?

(1) http://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/
(2) http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html


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