“Fairey Use” in the Courts: The Battle Over the Obama “Hope” Poster

Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

The copyright infringement lawsuit centering around the iconic Obama “Hope” image recently took a strange turn. On one side is the controversial artist Shepard Fairey, who produced the famous poster; on the other is the Associated Press, who claims ownership of the photograph, taken by Manny Garcia, upon which the image was based. Many fair use activists hoped that the case would break new ground in defining the scope of fair use in visual media. These hopes, however, have been shaken by Shepard’s admission that he destroyed and fabricated evidence during discovery.

Prior to the explosive popularity of the “Hope” poster, Shepard Fairey was best known for his OBEY line of artwork and merchandise (which was itself embroiled in trademark issues in its previous incarnation, “Andre the Giant Has a Posse”).   Fairey frequently adopts pre-existing visual material into his work, and so as the “Hope” poster grew in popularity, several enterprising bloggers began to hunt for the source photograph. Eventually the Garcia photograph was identified.  Garcia, at first, didn’t seem terribly put out by this, and told the New York Times, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”  The AP, however, began making threatening rumblings and entered into discussions with Fairey (represented in part by Anthony Falzone, the Executive Director of the Stanford Fair Use Project). In the first twist of the whole saga, though, it was Fairey who sued the AP in early February, seeking a declaration that his use of the Garcia photograph was protected by fair use.

This is where Fairey started the deceptions which have now come to light. The AP claimed that he used a close-up shot of Obama. Shepard claimed that he used a different picture from the same event – one that portrayed both Obama and George Clooney. Almost immediately, however, Daryl Lang overlayed the various pictures on top of each other, showing that while there were significant differences between the “Hope” image and the Clooney picture, the close-up was a perfect match.  Despite this, Shepard maintained his version of events, until, presumably, pressure applied during discovery forced his hand. In his statement, Shepard claimed it was an innocent mistake, but that to cover it up he destroyed evidence and gave fabricated evidence to his counsel for production. The AP, in their Oct. 20 amended answer, dispute this and maintain deliberate deception. After all, who misremembers cropping out George Clooney?

Why did Fairey do this? The substance of the case relies upon fair use; exactly which of two very similar photographs he used seems a little besides the point. Either it was (originally) an honest mistake, or he thought that the Clooney photograph provided the basis for a stronger fair use argument. One of the statutory considerations for a fair use defence is the amount of the original work used; while the close-up photograph was used almost in its entirety, the Clooney photograph would have required substantial cropping (and other modifications) to produce the “Hope” image.

No court appreciates being lied to, and Fairey’s deceptions risk overshadowing the fair use argument. Opinions on the strength of this argument are mixed.  Since Campbell v. Acuff-Rose Music the degree of transformation has arguably been the central question in fair use arguments. Some suggest that because the “Hope” image contained no commentary on the original photograph, it is not transformative in purpose, and so not protected by fair use; or that, simply, changing the colours of a photograph is not sufficiently creatively transformative.

I should admit that I believe in giving fair use a wide ambit, and hope that Shepard wins this case. The transformative nature of the “Hope” image can be seen from the effect it has had, from its immense popularity and impact. It became iconic of Obama’s historic presidential campaign and has spread around the globe. The original photograph did not – could not – do that. Does that not in and of itself point to a profound transformation?

That being said, I find Fairey difficult to view as a hero of copyright reform, as some seem to. Despite his own liberal use of the work of others, Fairey didn’t like it when Baxter Orr slapped a SARS mask on the OBEY Giant. This parody didn’t seem like fair use to Fairey, who sent a cease-and-desist letter to Orr.

Legal squabbles aside, Fairey also raises some difficult ethical questions about the scope and values of copyright. The decontextualization of politically charged art and photography can fundamentally change the impact of a work, as Ed Nachtreib observes regarding one of his own photographs appropriated by Fairey (without acknowledgement or credit).

Mark Vallen has put together a critique of Fairey’s work that highlights his appropriation of images used in political struggles from around the world (Jamie O’Shea posted a reply to this criticism here; Brian Sherwin’s counter-reply rounds out the debate). Do (relatively) privileged artists from wealthy nations have any ethical (if not legal) obligation to marginalized artists? Where are the lines between fair use, plagiarism, and cultural appropriation?

The immediate future of the litigation is uncertain, and the harm done by Fairey to his own case remains to be seen. Although they have not done so yet, his counsel will almost certainly withdraw, with Anthony Falzone saying that they will do so “at the appropriate time.”  Just to keep things interesting, Mannie Garcia has become involved in the case as well, disputing both AP’s ownership of the copyright and Fairey’s fair use argument.  The case will certainly continue to be closely watched by artists, copyright commentators, and Fairey’s supporters and detractors. I suspect that Fairey will ultimately emerge from all this relatively unscathed, however; between a solo exhibition at the Boston Institute of Contemporary Art, designing shopping bags for Saks Fifth Avenue, and a recent deal with Levis jeans, the “world renowned street artist” is at the peak of his career to date.