Stanford’s Center for Internet and Society takes on another fair use case
The Stanford Center for Internet and Society runs the famed Fair Use Project, responsible for taking on a number of high-profile cases recently. The Center magnificently prosecuted Carol Shloss’ fight with the James Joyce estate to a beneficial settlement. I always recommend reading its details to worried scholars asking for advice about how to persuade reluctant (ie, risk-averse) publishers to accept a claim of fair use in scholarly commentary and criticism. Now the Center’s Anthony Falzone has turned his attention to another fair use case, one involving the transformation of an online photo of Barack Obama into a series of iconic posters, by artist Shepard Fairey.
There are cases all over the map on the issue of the extent to which an artist can build upon another’s work without permission. Historically, both in terms of process and product, art involves much more direct and literal appropriation than literature does, yet the same copyright rules apply to both. The issue will be the degree to which our courts are ready and willing to give fair use sufficient scope to accommodate transformational uses — even commercial ones — in a digital era. As the Washington Post story linked to above recounts,
To create his Obama poster (which he did in less than a week), Fairey grabbed a news photograph of the candidate off the Internet. He sought an Obama that looked presidential. “He is gazing off into the future, saying, ‘I can guide you,’ ” is how Fairey reads the image. The artist then simplified the lines and geometry, employing a red, white and blue patriotic palette (which he plays with by making the white a beige and the blue a pastel shade). He uses a lot of red along with boldface words: PROGRESS or HOPE or CHANGE.
The story goes on to note Fairey’s thoroughly non-traditional view of copyright:
Who knows how many do-it-yourself reproductions of Fairey’s Obama have been scanned off the Internet. “I have no idea. I think a lot,” says the artist, who put the image on the Web in a downloadable file. “I’ve seen it on stencils, fliers, shirts, Web sites, places we had nothing to do with.” Copyright infringement? No, no, no. “This is exactly what I wanted to happen.” This isn’t a limited-edition print. It’s unlimited. He charged $25 to $45 for the first runs of 950 posters, to pay for the printing of the all the rest, which were free. Fairey says he hasn’t made a dime off Obama nor does he think he has unfairly glommed onto the candidate.
The fair use debate is always about the scope of copyright itself, debated in terms of the role of the primary, some might say the only, meaningful limit on copyright. It will be a treat to watch it unfold.
