[Updated 2/13/09]A recent lawsuit filed by the Los Angeles-based artist, Shepard Fairey, on Monday has attracted lot of attention and discussion. I'm particularly interested in the outcome of this lawsuit, because I, as an artist, would like to see a wider playing field created by The Fair Use Project at Stanford Law School.
The attempt of the lawsuit by Shepard Fairey is trying to defend his right of using a picture of President Obama taken by a freelance photographer who was hired by the Associated Press at that time. Fairey took the picture and transformed it to an artistic read-and-blue image (see the attached picture; source: AP), which has now appeared popularly on T-shirts, buttons, posters, and many other things.
The AP accused Fairey of copyright infringement for his work without permission on February 4. It was reported that the motivation behind such accusation was the profit that Fairey made from the acquisition of the image by the National Portrait Gallery last month. Fairey, represented by lawyers from the Fair Use Project of Stanford Law School and a San Francisco-based law firm, beat the AP to court on February 9, Monday to defend his right of use.
"Fair Use" is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work. Under the Fair Use Doctrine, one is allowed limited use of copyrighted material without permission, typically for parody or satire. In particular, Fairey took the original picture, transformed artistically, and used it for a totally different purpose. Such actions are allowed and protected by the Fair Use Doctrine.
The court has been struggling in this area of copyright laws. Not long ago, the rap group 2 Live Crew won from the Supreme Court their copyright lawsuit of their song "Pretty Woman" - a rap version of the original "Oh, Pretty Woman" by Roy Orbison. In a ruling by a federal judge in New York, however, the author of "Harry Potter" books, J.K. Rowling, won the fight against the publisher of the "Harry Potter Lexicon," an unofficial companion guide inspired by Harry Potter books.
The key element that resulted in different outcomes of the two similar lawsuits appears to lie on how the judge perceived and interpreted the concept of "transformation." I've seen lots of art graphics and designs at CafePress and Zazzle that are "transformed" from many pictures copyrighted by the media companies. I doubt the laws would be very clear and crisp anytime soon in interpreting the concept of transformation. For now, if you plan to "transform" any of the pictures from the newspaper or on the Internet, not only should you make sure your work is used for a different purpose, but your transformation is also significant enough to establish value of its own. Otherwise, avoid this practice, unless you've already secured lawful help from the Fair Use Project of Stanford Law School.
Read my previous post that explains the basics of copyrights and trademarks.
No comments:
Post a Comment