Legal Commentary

Doug Lichtman?s IP Colloquium has already been mentioned on this site. It?s a great series of conversations about contemporary issues in intellectual property featuring guests from academia (including PrawfsBlawg?s own Dan ?Dan? Markel), law practice, and the entertainment and technology industries.

The most recent edition of the IPC addresses an issue of particular interest to me. The copyright dispute involving Associated Press and graffiti artist Shepard Fairey is familiar news. Fairey?s based his iconic ?Hope? poster of Obama on a photo taken for the A.P. by freelance photographer Mannie Garcia. (Garcia has now joined the lawsuit, contesting the A.P.?s original claim that they own the copyright in the photo pursuant to the work made for hire doctrine.)

It?s uncontested that Fairey did not seek or receive permission to use the photo in making his poster, so the substantive debate revolves around whether Fairey?s taking is defensible under the fair use doctrine, which permits unauthorized takings that meet a notoriously slippery four-part statutory balancing test. Doug?s latest IPC conversation features the lawyers for Fairey (Mark Lemley) and the A.P. (Dale Cendali) as well as the New York Times? General Counsel, Ken Richieri.

The Fairey conversation ranges over a number of very engaging issues, but I?m going to limit this discussion to consideration of the fourth fair use factor. I say more about this issue, and why I?m not as convinced as Doug that it weighs in favor of the owners of the Obama photo, below the fold.

The Copyright Act requires judges to consider ?the effect of the use upon the potential market for or value of the copyrighted work? in evaluating a fair use defense. Cendali argues that allowing Fairey?s fair use defense will lead to a world that will destroy licensing markets in all news photography, but this is an obviously overstated litigator?s point. No one is arguing that purely substitutive uses (such as reprinting the Obama photo verbatim) should be allowed in the absence of permission or a license. The right way to frame the question, I think, is whether an artist who creatively appropriates a news photograph needs to pay for a license to do so.

This strikes me as a hard question. Lichtman?s take is that there was a well-functioning market here, so that all Fairey would have had to do is ask for permission to use the photo (and perhaps pay a small fee) in order to avoid liability concerns. And Garcia has said that he would have given Fairey permission to use the photo if Fairey had simply asked him about it beforehand, which seems to suggest that there was such a licensing market, and that Fairey just failed to take advantage of it. If that were true, it would be a strong argument against fair use (though not necessarily a dispositive one?the Second Circuit has held that the mere existence of a well-functioning licensing market alone does not preclude a fair use defense).

I think this counterfactual characterization of a smoothly functioning licensing market suffers from hindsight bias in a couple of respects. For one thing, even if it were true that Garcia would have given Fairey permission to use the photo, his grant of permission may not have been sufficient. The A.P. claims that it is the copyright owner, so a good-faith effort by Fairey to clear the rights could still have landed him in trouble (copyright is a strict liability offense, so an innocent state of mind would not be a defense). And corporations have a track record of not extending as much generosity to potential licensees as individual owners might. (In any event, I?m not so convinced that Garcia would have been so generous. If he really was so indifferent to Fairey?s?or anyone?s?profiting off of his photo, why would he now be joining the lawsuit and seeking to claim ownership of the work?) Finally, markets in creative work don?t function as seamlessly as markets in stocks or commodities, where actors regard the goods in trade as largely fungible. Rather, copyright cases are full of instances where owners reject a lucrative licensing offer for personal or idiosyncratic reasons (e.g., Campbell v. Acuff-Rose; Fisher v. Dees).

For all these reasons, I?m not as confident that we can simply say that fair use is inapposite here because Fairey eschewed use of a well-functioning market (nor am I convinced that it would end matters even if this were the case). But I also think it?s worth pausing on Lemley?s policy argument that there?s something ?corrosive? about making art such as Fairey?s subject to a permission culture. Both Lichtman and Lemley agree that in some cases, fair use is necessary because it enables the legitimacy of a form, such as movie reviews. If critics need a studio license to include film clips in their reviews, then studios can condition those licenses on favorable commentary, and critics will lose credibility.

In a similar vein, though, much art?especially appropriation and graffiti art, like Fairey?s?depends on its transgressive character. Because part of the appeal (and social message) of this art is its edgy lawlessness, if these kinds of artists had to politely ask lawyers for permission beforehand, much of the power of their work would be lost. Now one could certainly argue that the social value of transgressive art is not worth the costs imposed on owners by unauthorized takings, and this empirical point may be right (though I?m skeptical that something like this can be measured). But this is the same basic argument for fair use that is generally accepted in the film criticism instance: forcing a permission culture on the users would compromise the value of the work itself.

Finally, Lemley suggests that part of the factor-four calculus should include the enormous positive impact that Fairey?s taking has had on Garcia?s career (his photography is much more in demand now that he is associated with the iconic Obama poster). As Cendali tartly puts it, this is the claim that ?I did you a favor by ripping off your work?, and few courts have put much store in this argument when evaluating the final fair use factor.

By contrast, I think it?s a convincing point, for a couple reasons. First, the fourth fair use factor is commonly referred to as the market-effect factor, but tells only part of the textual story. The statute actually requires consideration of ?the effect of the use upon the potential market for or value of the copyrighted work? (emphasis added). The plain language seems to not only permit, but demand, consideration of how the defendant?s use impacted the value of the owner?s work, not just the effect the use had on potential markets. Second, as a policy matter, if it?s true that Garcia is much better off thanks to Fairey?s unauthorized use than he would have been in a world where that use never happened, I can?t understand the argument that Fairey owes Garcia money; if anything, it seems like just the opposite should be true. At the very least, it seems to me that this argument should be part of the factor-four discussion rather than dismissed as readily as it is by most courts and commentators.

For all of these reasons, I?m more skeptical of the claim that the fourth factor weighs strongly in favor of the owner of the Obama photo, and I think the fair use issue is a truly difficult one. Regardless of your take on the issue, though, the conversation at IPC is an enjoyable one and well worth checking out.