Fair Use & Photography

Because I’m a lawyer, everyone in my family thinks I know everything about every esoteric law that has ever been written. As much as I wish I could recite the statute my Aunt Cookie swears she has heard of which would prohibit her neighbor’s cat from using her backyard as a litter box, I usually can’t help them without having to spend a Saturday doing some good ol’ legal research (for which I’d charge full rates, of course). So imagine my surprise when my brother started a new business and started coming to me with questions about “mainstream” legal issues with which I am actually familiar! He recently started a t-shirt company out of our parents’ garage (of course) and, while he has done a great job coming up with original t-shirt designs, every so often he consults me regarding “fair use,” and, specifically whether or to what extent an existing work of art can be transformed into something “new” on one of his t-shirts.

Now while I’m familiar with the doctrine of fair use, one of the things I most understand about it is that it can be almost impossible to predict. Luckily for both of us (or, at least luckily for me so I can impress him with my knowledge), several recent high profile lawsuits have been decided that speak to this issue. Take Friedman v. Guetta, a Central District of California case involving one artist’s attempt to make a “fair use” of another artist’s photograph. On May 27, 2011, the judge in Friedman ruled that the following was not fair use:

Friedman’s Original

 

Three of Guetta’s Alleged “Fair Use” Works

In an article about the decision, Eriq Gardner of the Hollywood Reporter suggests that “[t]his decision, along with another in New York court last March over paintings made by the American artist Richard Prince that appropriated copyrighted photographs, might be the beginning of a massive limiting of the fair use defense enjoyed by artists to copyright claims.”

I beg to differ. Fair Use is “Tricky,” but “You Be Illin’” if you think this case will massively limit fair use. In fact, based on Judge Pregerson’s summary judgment order, this was a fairly straightforward case (as least as far as fair use is concerned).

On the first fair use factor, (the purpose and character of the work), Judge Pregerson found that Guetta did not offer a “transformative alternative” use of Friedman’s photo. Gueterra’s works were not a parody, commentary, or criticism of Friedman’s photograph. Both artists used their respective works as visual art for public display. On the second fair use factor, (the nature of the copyrighted work), Judge Pregerson found that while photographs are core protected works, this factor doesn’t matter that much. On the third factor, (amount and substantiality of the portion used), Pregerson found that Gueterra used all of Friedman’s work and that what Gueterra took was the “heart” of Friedman’s work. On the fourth factor, (effect of the use on the potential market for or value of the work), Pregerson found that Gueterra’s “commercial and artistic use of [Friedman’s] Photograph competes directly with [Freidman’s] use.” In sum, Pregerson concluded that “[t]o permit one artist the right to use without consequence the original creative and copyrighted work of another artist simply because that artist wished to create an alternate work would eviscerate any protection by the Copyright Act.”

None of this is shocking because Judge Pregerson’s ruling is not at all deviant from the norm. As I blogged about in January (follow link to look at the pictures), Jeff Koons was losing these kind of fair use arguments left and right in the early 1990s. In Rogers v. Koons, a 1992 case, Jeff Koons tried to argue that his “String of Puppies” sculpture was a fair use of a photograph he copied to create the work. He lost. In Campbell v. Koons, a 1993 case, Jeff Koons tried to argue that his sculpture entitled “Ushering in Banality” made a fair use of a photograph he copied called “Boys with Pig.” He lost again. And in United Feature Syndicate, Inc. v. Koons, a 1993 case, Koons tried to argue that his four identical sculptures that copied the Garfield character “Odie” were fair use. He lost a third time. In fact, the absurdly persistent Koons didn’t win a case until 2006, where, in Blanch v. Koons, he actually made a fair use of a photograph by transforming part of a fashion magazine ad into a painting that comprised Koons’ “commentary on the social and aesthetic consequences of mass media.” In other words, Koons finally succeeded in adding “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” His reckless passion for derivative art finally paid off.

Gardner’s article also makes reference to the “Associated Press’ fight against Shepard Fairey for using one of the news agency’s copyright photographs to create the famous Barack Obama ‘Hope’ image.” As my brother wanted to know, was that situation any different than Friedman v. Gueterra? I have heard two arguments for why it is.

First, there is no question that the photograph in Friedman is subject to copyright protection. Judge Pregerson observed that Friedman “selected and arranged the subjects” and that he made “related decisions about light and shadow, image clarity, depth of field, spatial relationships, and graininess that were all represented in the copyrighted Photograph.” There is an argument to be made that the photograph that served the basis for Fairey’s “Hope” image is not protected because the photographer did not select or arrange Obama’s pose—which is arguably all that was copied. On the other hand, tell this argument to a National Geographic photographer who’s been painfully crouched in a bird hide for a week to snap whatever picture he can of a rare toucan. Does the photographer tell the bird where to sit and where to point his beak? Of course not. Is the resulting photograph subject to copyright protection? Absolutely.

Second, assuming the AP photograph is subject to copyright protection, was the use transformative? I think the point is debatable. It was certainly not a parody, commentary, or criticism of the AP photograph. But did it nevertheless add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message”? Again, this is subjective and depends largely on the presentation of facts. The fact that the AP photographer allegedly did not even recognize her own photo until it was pointed out to her does seem to weigh in favor of finding transformative use.

So what advice to I give my brother? None of my own. I instead leave him with a quote from T.S. Eliot, which, I think is as applicable to poets as it is to t-shirt artists:

“One of the surest tests [of the superiority or inferiority of a poet] is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest.”

Just be a good poet and you’ll be fine.

Maybe.

(Thanks to Nancy Prager for bringing this wonderful quote to my attention)

 

 

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2 Responses to “Fair Use & Photography”

  1. Thanks for the post Dan. The voters at my self appointed “Fair Use Authority” site distinguished between Mr. Brainwash’s works finding one of them a clear fair use, and the others not so much. Check it out: http://www.joeescalante.com/JoeEscalante/Fair_Use_Authority.html

  2. Dan Nabel Dan D. Nabel says:

    Joe,

    The polls on your website illustrate why these decisions are so much fun. There is lots of room for difference of opinion. And I agree that of the three pictures, the one with Jam Master Jay removed is the most transformative. If Guetta had argued parody or criticism of the photo (and the band) via the removal of JMJ and insertion of that couple, I think he would have had a pretty good defense. But it is not at all clear that he tried to do that from reading Judge Pregerson’s opinion.

    Another fun photograph parody case is http://scholar.google.com/scholar_case?case=18427314453578523770&q=fair+use+of+photograph&hl=en&as_sdt=2,5.

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