Is There “Hope” for Shepard Fairey?

How does fair-use law work, anyway?

Shepard Fairey’s “Hope” poster

Shepard Fairey may have hoped to teach something new about art and copyright with his iconic “Hope” poster of Barack Obama. Instead, he is accused of lying about which Associated Press photo he used. (He says he made a mistake.) But if Fairey’s lying has probably made a hash of his case and lost him a lawyer, it has also raised that pesky question yet again: Just what is fair use? Was it legal for Fairey to take an AP photo and turn it into this piece of artwork?

Copyright lawyers, when asked about fair use, love to emphasize its complexity and opacity. I won’t deny that fair use can be a little dense, yet I firmly believe the basics can be well-understood. My project is to demystify: a few details may be lost, but here goes.

If you kill someone, you’ve committed murder, right? Yes—unless he was about to shoot you first, in which case we call it self-defense. Fair use takes that same concept to copyright law. It is all about justification, and this is a key to understanding it.  Fair use allows use of a work that would ordinarily constitute infringement, if that use is justified (or excused, if you like) with some compelling reason.

For example? Consider this:

They paved paradise and put up a parking lot.
They took all the trees and put them in a tree museum.

Those words were written by Joni Mitchell. By putting them here I’ve made a copy of her work without her permission. This would be illegal—except that fair use doctrine says I can quote short passages. Why let me quote Joni Mitchell? Imagine getting permission every time you quoted anyone or anything. That might be polite, but it would sure make writing—particularly writing reviews—a lot harder. And so the right to quote makes writing easier—and copyright, after all, is supposed to help people to write, not make it harder for them.

Here’s a second example:

This is the Economist’s use of the infamous Abu Ghraib photos, taken by American military personnel, which TV, newspapers, and magazines repurposed without hesitation. What we have here is fair use in news reporting. The photographs in the Abu Ghraib scandal were the story; what might have otherwise been an infringement of copyright is permitted so that the news can be reported. From this, we understand why fair use bears a close relationship to the freedom of the press. Again, the use is considered “fair” because there is some good reason, or many, for it.

What counts as a “good reason”? In addition to our two examples, take a look at what has been declared fair use by courts or legislatures. They include:           

  • 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                  

What do these things have in common? One answer, borne out by the quotation example, is that fair use aids secondary creativity, or creativity that builds on an original. “The use must be of a character that serves the copyright objective of stimulating productive thought and public instruction,” Judge Pierre Leval of the federal appeals court wrote in a famous article. Another popular idea, originally popularized by Boston University law professor Wendy Gordon, is that the list above reflects situations in which bargaining for a license is likely to break down or prove impractical. A third idea, suggested by my Abu Ghraib example, suggests that fair use is a safety valve that prevents copyright from curbing free speech or freedom of the press.

While you can see these ambitions reflected in the list above, no single “goal” seems to explain why we see the fair-use categories we do. For example, what does the right to use your TiVo have to do with creating anything? I think it is more accurate to say that the animating spirit of fair use is that courts may recognize any public-minded justification. The real question is whether the justification is strong enough to justify denying the copyright owner her usual right to demand permission. This is why fair use is sometimes called a safety valve—you can imagine that when the public’s interest in infringement is strong enough, an alarm goes off and the copyright system shuts down.

Lawyers and judges might not agree with my description of fair use and might say that it’s impossible to “categorize” fair use as I have, but I think that’s an overstatement. For precedent, by its nature, creates categories. For example, in 1994, the Supreme Court ruled that a rap parody of “Pretty Woman” was fair use. In that moment, it created a category of fair use, because anything similar enough to that case is governed by it.

For everyday questions, it is the categories of fair use that matter most. They are what industries, in practice, rely on. Publishers and the news media depend daily on the rights to quote and report. The TiVo wouldn’t exist in its present form without the time-shifting right, and so on.

The categories I’ve described may make fair use sound relatively simple, but that would be misleading. Even if you are within a recognized category, you might, for some reason or another, exceed its boundaries. Again, consider self-defense. Wild Bill is one thing, but killing isn’t self-defense if you attack someone who threatens you with what is obviously a water pistol. There’s a limit to what counts as self-defense, even if it can be hard to say exactly where the line is. Similarly, there are limits to what counts as quotation. Taking the lyrics of an entire song, for example, isn’t quotation; it’s conversion.

The fair-use categories also don’t work in new or uncharted terrain, as when Google and other search engines began their image searches and, in doing so, made millions of thumbnail images. Pornography sites argued that such image searches were infringement. The federal courts in California, coincidentally home to both industries, ruled against them. And that’s what gave rise to the category of fair use in thumbnails for search.

Shepard Fairey’s case, setting aside his recent troubles for a moment, is one of these new areas. To “Warholize” someone else’s photo (if that’s the right verb) doesn’t fall within an existing category of fair use. So the question is whether it should.

And it is in these novel situations that fair use has earned its opaque reputation—in which, as Supreme Court Justice Joseph Story said in 1841, we approach “the metaphysics of the law, where the distinctions are, or at least may be, very subtile and refined, and, sometimes, almost evanescent.”

Oddly enough—and, to my mind, for no particularly good reason—other thoughts of Story’s from 1841 on fair use remain the law. In Story’s time, the Supreme Court heard a copyright dispute over an abridgement of a long biography of George Washington. Story wrote “we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” 

Congress codified this sentence in 1976. Read it again and then look at this:

Is this fair use? Odds are, Story’s general principles didn’t answer the question for you. More probably, you have a gut reaction of some kind, which is, of course, how judging generally works—as Justice Oliver Wendell Holmes once put it, judges decide first and write their reasons later.

Story’s language and the statute don’t really get squarely at the central question of justification. Is there some public interest in infringement here that justifies what Fairey has done? In the big picture, answering that question means weighing, on the one hand, the broader freedom to produce art like this—the freedom to be Fairey—against the sense that too much of the original was taken without permission and that the original photographer or his employer, the Associated Press, deserves to be compensated.

Given the complications in Fairey’s case, this time around we may not get the answer. But now you have an idea of how to frame the question.