When Remix Politics Lands You in Court: The Latest Twist in the Fairey-AP Case

Stanford University's Fair Use Project, it is being reported, has made the decision to curtail their legal representation of Shepard Fairey because of Fairey's revelation that he misrepresented which Associated Press photo was the source material for his Obama HOPE poster, so iconic that it is now hanging in the Smithsonian's National Portrait Gallery. With this latest twist, professor Tim Wu has a go over on Slate at making sense of what "fair use" of creative content is in the United States. It's an important question for the many of us -- activist designers, political bloggers, video makers -- who build creative stuff on creative stuff that others have built. So, in the interest of advancing clarity about what constitutes the fair use of creative content, let's summarize Wu and tease out what we know about this latest twist in the Fairey case.

Fairey had, up until now, maintained -- and had mocked up digital sketches to make is seem like -- he had cropped and reworked a middle-distance AP photograph by photographer Mannie Garcia that showed Barack Obama seated on a dais to the left of actor George Clooney at a Darfur event. Fairey now admits that his inspiration was instead a close-up shot of Obama, also by Garcia and also at that same Darfur event. Distinctions without a difference, right?

Not when it comes to what counts as fair use in the U.S. today.

When it comes to fair use, whether or not George Clooney was cut out of the picture has great import. If that seems crazy, well, that's how the law works in this area. Slate's Wu has a great quote from 19th century Supreme Court Justice Joseph Story. Story said that when it comes to copyright and American legal code, the nuances are "very subtle and refined." Sometimes, said Story, those nuances in copyright law are so subtle as to be "almost evanescent."

Now, legal evanescence may pay the college tuition bills of a lot of lawyers' kids, but it's somewhat less useful for those of us freed by the Internet and digital media's wondrous ability to facilitate copying, remixing, and the creation of new art off the back of old art. Think the "1984" Apple ad remix from the '08 presidential race or every political ad that uses a clip or photo that doesn't, technically, belong to the artists. (It's an openness that also, it's worth mention, makes the evolution of those reworkings easier to track). For the rest of us, a little clarity without the benefit of legal counsel is a good thing. The risk is, that confusion over what's fair use, what's permissible copying, what will earn you a subpoena makes every politically-aware kid with a Mac or activist with a bright idea think twice or three times before they create something new, and opt out of confusion to play it safe.

What assumedly inspired Fairey nervous enough to mock up fake digital files that made it look like the Clooney shot was how closely the tight shot of Obama resembled his final work. In making its case against the AP, the attorneys at the Stanford Use Project (who represented Fairey as he sought relief against the AP's insistence that he pay them for rights to use the photograph) argued that while, sure, Garcia's Clooney photo served as a "visual reference" for the artist, Fairey added a good dose of creative magic to produce his HOPE poster. "Fairey transformed the literal depiction contained in the Garcia Photograph," read the filing, "into a stunning, abstracted and idealized visual image that creates powerful new meaning." That's important. Transforming the original work in a creative way is one of the four factors that Stanford University Libraries' resource center on copyright and fair says play a role in whether a work is going to safely fall under fair use. The other three: using source material that is factual rather than creative in nature, taking a minimal amount of the total source work, and using your source material in a way that doesn't diminish its market value.

On Slate, Wu provides a useful list of real-world situations where courts and legislatures in the U.S. have traditionally been willing to let fair use thrive: "Quotations of reasonable length, parody (but not satire), use in news reporting, time-shifting (recording TV for later viewing), thumbnailing (resizing) for image search engines, reverse-engineering for a new operating platform (figuring out what you need to do to write a game that works on a Sony Playstation), limited copying for classroom or educational use." That list is pretty much a complete cut-and-paste job from Wu's piece, with some minor tweaking of capitalization and punctuation. Are we on safe fair-use ground here? Absolutely, in any sensible understanding of the principle, since it's just a portion of a much larger piece, intended to help flesh out commentary. (So call off the lawyers, Slate. Kidding!)

One point in Wu's piece, though, is somewhat less clear. Quoting two lines of Joni Mitchell's "Big Yellow Taxi," ("They paved paradise and put up a parking lot..."), Wu makes the case that such use of the Mitchell class is on the up-and-up because it's such a short clip of the longer work. Now, between Tim Wu and your humble writer, one of us is an accomplished accomplished lawyer on the topic of creative content and one of us is me. That said, that isn't exactly my understanding of how fair use plays out here.

As a basic rule of thumb for we layfolk, it's worth remembering that the guiding principle behind copyright in the United States is that we protect creative works so that people will be encouraged to create even more creative works. Heck, the idea is spelled out in the Constitution -- Article I, Section 8, Clause 8 -- enshrined there because the smarties who founded the country thought it critical to the building of a creatively vibrant and economically viable country. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Bam. It's right there in our source materials. The point is to promote the progress of science and useful arts, and a Joni Mitchell classic is surely the latter. A lawyer quoting a folk singer, it would seem, isn't only fair game because it's a short quote. What's more important is that it's not competitive with Joni (or, rather, her record label or estate) in the least. Wu's quoting makes Mitchell's words more relevant, more contemporary. No songwriter isn't going to pour their heart into a song because two lines of it are going to be included in Slate.com legal commentary fifty years hence.

But this is where Fairey gets into some grayer areas. Running in Fairey's favor is that a news photo, in this case Garcia's Obama shot, is largely factual, which the law tends to treat as fairer game -- though Garcia's artistic framing of Obama's face doesn't help Fairey's case. Also not a point in the Fairey column is that the AP is an established photograph vendor with established practices for licensing their photos. We're not into a situation where appropriating source materials for political commentary is looked more favorably upon because the relationship between the first "artist" and the second is a particularly contentious one.

Then there's the question of whether Fairey's use of the AP photo diminishes the photo's value in the free market. Smart legal minds have debated this point, and will continue to debate it. But as a data point, take our posting of the two Garcia photos above. We're not in the practice of using Associated Press photos here without paying for them. The AP is -- with perfectly reasonable ethical and business justification -- in the habit of getting people to pay for their photographic works. (Besides, there tend to be sufficient good, Creative Commons-licensed photographs available on Flickr.) For what it's worth, the AP has been particularly aggressive in attempting to enforce what it sees has its copyright rights; see its efforts to get bloggers to pay for even short excerpts of AP content. But the two shots above are now controversial and news worthy, and have entered into the public debate -- which means that the AP isn't likely to get much in the way of royalties for their use in news stories from here on out.

Confusing stuff. And in acknowledging that he had attempted to throw the court off his track by mocking up fake digital files, Fairey argued that the real damage done by his actions is that it added more ambiguity to an already too-confusing situation:

In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner. I am very sorry to have hurt and disappointed colleagues, friends, and family who have supported me in this difficult case and trying time in my life.

...

I am also sorry because my actions may distract from what should be the real focus of my case -- the right to fair use so that all artists can create freely. Regardless of which of the two images was used, the fair use issue should be the same.

Before you decide not to make use of some neat photo or text clip or other bit of creative content over fair use worries, check out the Stanford Libraries Faire Use Resource Center mentioned above or the Electronic Frontier Foundation's Fair Use FAQ.