Obama . . . Poster from Picture . . . . Fair Use?

It was a simple photojournalism picture, taken by an AP stringer, when a Los Angeles artist, Shephard Farley, found the image on the web and used it to produce his rendering as a poster:

. The poster has become ubiquitous, and the photo owners (there is a dispute there too about ownership) are now claiming infringement.

This is a great case to think about fair use. If you emphasize the copyright owner's property rights, then you can emphasize the first three factors of the four factor test and rule against fair use. If you emphasize creativity and development of art, then you can emphasize the last factor, through the Posner analysis, and find for fair use.

As you probably know, there are four factors which you look at when determining whether or not something qualifies as a "fair use":
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Justice Souter, in Campbell v. Acuff-Rose Music (the case dealing with 2 Live Crew's parody of Pretty Woman) weighs in on the purpose of copyright protection:

The first factor in a fair use enquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." § 107(1). This factor draws on Justice Story's formulation, "the nature and objects of the selections made." Folsom v. Marsh, 9 F. Cas., at 348. The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see, in Justice Story's words, whether the new workmerely "supersede[s] the objects" of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative." Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, [n.11] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

In contrast, Judge Posner has viewed fair use from an economic perspective. Judge Posner suggests, in Ty v. Publications, 292 F.3d 512, that:

Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[B][1], p. 13-193 (2002), is not fair use.

He then goes on to trash the statutory test (and the Campbell formulation) by saying:

We have thus far discussed the application of the fair-use doctrine in terms of the purpose of the doctrine rather than its statutory definition, which though extensive is not illuminating.

I find the Posner approach more convincing. Here, the photo's value was small but for the poster. These are complements, and allowing this transformation benefits both parties and society.