Copyright Fair Use and The Transformative Factor

Posted on February 11, 2009



Orginal Manny Garcia Photo with Faireys Hope Poster

The Question?

Can you the artist use, transform a copyrighted image in whole or part into a new work of art without permission of the original author.

That is a question that Shepard Fairey is about to answer.

Boy this guy Fairey is really mixing it up, with his recent arrest for graffiti in Boston and what I believe is a very important law suit in New York. The Associated Press wants credit and payment for Fairey’s Obama Hope image. They contend that Fairey violated Copyright Law when he used a photograph taken by Manny Garcia to create his famous poster of Hope.

I have written a lot about Shepard Fairey recently because his work in general is tied to a history in art that is of great personal interest to me. His work is connection to political propaganda and the Dada movement. And I think he does a good job as a image maker/artist.

I don’t know if Shepard Fairey intended to set landmark legal precedents in law when he started making images or when he made his now famous Obama poster, but that is what he is doing.

The reason this is so important is that the outcome of his argument with the Associated Press may in fact have a major impact on you and me as an artist. At issue is the Fair Use clause in copyright law.

I want to make it clear that I am not attempting to defend Shepard Fairey but I am attempting to defend his right; the right of Fair Use. Fairey is a convenient source because of his current case. Furthermore, I hope you will use the links I have provided to the related articles and the actual court documents to make your own argument about the issue.

That said, I have some issues I want to share with you not only about the Fair Use law but also about how the story is being presented.

First AP claims infringement of copyright over the use of the original image. What they don’t claim is that they in fact may not even own the copyright to the image. Manny Garcia the photographer may own the rights. AP never contracted with Garcia for ownership. He was a temporary hire with no contract by him or AP that would transfer ownership of the image to the Associated Press. Therefore, before AP has any claim they will have to establish ownership. And that may be another legal case in itself.

Second, is the fact that the current image in the press shown around the world is not the entire photograph that Manny Garcia took of Obama? The original image was of Obama sitting beside George Clooney. He was at a fund raising dinner for Darfur relief aid, at the National Press Club in Washington D.C in 2006. The image Shepard Fairey used and altered is a cropped version of the original.


Third is the fact that Fairey took the cropped pose and significantly altered it. He not only altered the image by transforming it into a very graphic and abstract version of the original, he altered the content or purpose. He created new work of art based on the original by adding new expression and meaning.

Why is this important, because many artists use other people’s images for inspiration and transform those images into new works of art? Any body who has clipped pictures out of a magazine to make a collage has done exactly what Shepard Fairey did. Those old wallpaper design catalogs count too.

Equally important I believe is for the press to get the story right. Why didn’t they print the original photograph that I found in a link to court records, provided by the Mercury News? It took me about 5 minutes to find a version of the image I could use, when everybody else published the cropped version.  I think the image they used unfairly slants the story and implies a different approach to the work Fairey created, inspired by the original image.

Copyright law is as complex as image making today. With new digital technology and the internet, available images have multiplied by a thousand fold and fair use is a major issue for artists everywhere.

I also want to note that Shepard Fairey has openly given Manny Garcia credit for his image and the inspiration the image had on Fairey’s work. As an artist have you ever been inspired by another artists work? Have you ever used another artist’s work as a starting point for your work?

The history of art offers many examples of fair use and transformative images, just look at an Andy Warhol image of a Campbell’s soup can. Campbell’s tried to stop him from using their trademarked image and lost. Warhol transformed the Campbell’s image into a new work of art that was inspired by the original. Warhol added new expression and meaning to the image.

I don’t think the Associated press has a case and I think Shepard Fairey is rightfully protecting all of us with his legal action against AP.

Read the actual court documents and related articles below.

Tell me what you think, add your comment, it is important.

AP wants credit for Fairey Obama Image, Boston Globe.

Mercury News Article. Court Documents Attached PDF

PDF at Doc Stoc. You can download the complete court documents PDF version with images free here. You just have to register.

Excerpt Stanford Fair Use/Copyright Stanford University Libraries

The Transformative Factor: The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

Has the material you have taken from the original work been transformed by adding new expression or meaning?

Was value added to the original by creating new information, new aesthetics, new insights and understandings?

In a parody, for example, the parodist transforms the original by holding it up to ridicule. Purposes such as scholarship, research or education may also qualify as transformative uses because the work is the subject of review or commentary.

EXAMPLE: Roger borrows several quotes from the speech given by the CEO of a logging company. Roger prints these quotes under photos of old-growth redwoods in his environmental newsletter. By juxtaposing the quotes with the photos of endangered trees, Roger has transformed the remarks from their original purpose and used them to create a new insight. The copying would probably be permitted as a fair use.

Stanford Website/Fair Use

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The Art of Politics

A very well written article on the copyright debate and Shepard Fairey

Shepard Fairey is Not a Crook: by Steven Heller