Is the Obama Poster a Copyright Violation?

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62 Responses

  1. Joe Miller says:

    This is a terrific comment thread. One thing people seem to be assuming is that this particular photo – the one taken by Garcia – contains copyrightable expression. Does it? I think not.

    “Originality,” the Supreme Court has held, requires both that the expression for which protection is sought (a) not have been copied from someone else (let’s assume that’s satisfied here) and (b) have the necessary minimum level of creativity.

    I think Garcia’s utterly banal, pedestrian photo flunks the second part of the test. To the extent it is good (and it is a nicely composed snapshot), it is utterly conventional. It’s the snapshot equivalent of the white pages – and they’re not copyrightable (because they’re not “original”) either.

    (Having said all that, I concede that most copyright law folks don’t agree with me about where the creativity threshold is for copyrightability. Most folks think it’s quite a bit lower than I think it should be.)

  2. Liz says:

    Alan – Garcia didn’t own it – AP did. Garcia’s not even suing Fairey.

  3. Alan says:

    @Liz: The fact that the AP was assigned his copyright is a distinction without a difference. If the photos he took had no copyright, or if the copyright had no value because everyone could use them for free, then he would not get paid and would be out of a job. We could then just go to Flickr for all our photos, because there would be no professional photographers anymore, no AP, no newspapers, no magazines.

  4. bill says:

    This is fair use.

    Also, Solove is right to impugn AP’s motives here. Realize that AP has had a pretty GOP (and anti-Obama) slant. They may be trying not only to get $$, but also to tarnish this poster and maybe even reduce the spread of the iconic image.

  5. A.J. Sutter says:

    Thanks, Joe, for bringing this back to the composition. As Dan mentioned in the original post, the composition of the photo is the possibly original element. The composition of the poster (sc., the artwork, though no doubt also true of Dan) is entirely different from that of the photo.

    One way in which the participants in this thread have been talking past each other that while most people (and Dan’s original question) are focused on infringement, Alan repeatedly refers to “misappropriation”. I’m not a scholar on this matter, but this 2005 paper by Ryan Holte suggests that state claims of misappropriation as to copyrightable subject matter have been pre-empted, although this 2002 paper by Daniel Gervais seems to suggest, @ 954n.27, that the point is less clear.

    Even assuming that a misappropriation claim were available here (a state law claim, BTW), David Barnes has some pertinent comments about IP misappropriation in this 2007 paper: “The simple view of misappropriation theory rests on the premise that persons should not be able to appropriate the benefits of another’s investment without similar investment of their own. … [But] [r]evisiting the Supreme Court’s opinion [in INS v. AP, 248 U.S. 215 (1918)], however, reveals a more complex misappropriation doctrine. … The ensuing injunction did not prevent all free riding. It prevented only free riding that ‘interfere[d] with the normal operation of the complainant’s business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not.’” (Barnes @4-5.)

    Barnes summarizes this as follows: “There are two views of misappropriation. The simple view prohibits one actor from free-riding on the activity of the other. The nuanced view prohibits one actor from free-riding on the activity of the other if doing so [would] so interfere with the incentive to engage in creative activity that society would be [sic] suffer. Many courts’ rulings in Internet initial interest confusion cases reflect the simple view. Intellectual property theory and trademark law generally reflect the more nuanced view.” (Id. @5-6.)

    As long as the “investment” involved in creating the poster was similar to that involved in taking the photo, there would seem not to be misappropriation even under the “simple” view. AP’s likellihood of meeting Barnes’s “nuanced” view is even less likely. BTW INS v. AP related to news, not to a photo, though it’s a nice historical echo that AP was also the plaintiff in that case.

  6. Bruce Boyden says:

    FYI, Garcia (a) believes he still retains the copyright in the image, not AP, and (b) is “concerned” about some uses but seems not to have reached a conclusion that Fairey’s use is necessarily improper.

    http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html

    I’m not sure where “temporary hire” would fit in under the work-for-hire doctrine, so without more facts it’s hard to say who actually has the copyright in the photo.

  7. Venkat says:

    Great comment thread.

    It’s funny that the fact that AP may not necessarily own the photo only came out later. They should have probably buttoned up that issue first.

    To the folks that say the picture is run of the mill…obviously not, why else would SF have chosen it.

    Tough issue – this is an example of why being a lawyer is fun!

  8. RioRico says:

    “Plagiarize!

    Let no-one else’s work EVADE your eyes!

    Remember why the good lord MADE your eyes!

    And plagiarize, plagiarize, plagiarize!

    (But be certain always to call it, RESEARCH!)”

    –Tom Lehrer

    I seem to recall various artists saying that ALL art is plagiarism. Certainly much visual art at least refers to other visual art. If I publish a photo of stacks of Campbells soup cans, am I plagiarizing Campbells, or Warhol, or anyone? How about if the objects in my photo only RESEMBLE such cans, or Warhol’s renditions thereof?

    IMHO, if a disputed work is not a fairly EXACT copy of an existing work, the IP arguments become absurd. Some time back, a friend hand-made a good needlepoint replica of a famous BYTE magazine cover of a viking ship with a floppy-disk sail. Did she copy? Yes. Did she unlawfully plagiarize? I think not. (If, as in Fairey’s case, someone else photographed her rendition and sold posters and t-shirts, is she responsible?) Nobody would mistake her needlework with the printed magazine cover; nobody will mistake Fairey’s painting for the Garcia photo.

    Suppose I paint a sailing ship onto a printed nautical chart, or an Obama portrait onto a newspaper page. Have I illegally sampled the chart or newspaper? Suppose I generate an ASCII art image of grinning Harry Truman holding up the newspaper with the DEWEY WINS headline. Did that original photo infringe on the newspaper’s copyright? Who does my image infringe or damage?

  9. Alan says:

    The answer is pretty much yes on all counts; those are all copyright violations (assuming the originals were not so old that their copyrights had lapsed).

  10. A.J. Sutter says:

    Alan, how can you be so sure that they are “violations” without more context? What if RioRico’s works are satirical? Or what if they are fair use? (See 17 USC 107: “the fair use of a copyrighted work … is not an infringement of copyright” (emphasis added), i.e. fair use isn’t merely something that mitigates liability for infringement, it is constitutive of the nature of the act.)

  11. Gail says:

    If Fairey hadn’t “painted” the poster and created a new work, would Garcia’s photo have even been memorable or perhaps worthy of copyright?