2. A Question of Fair Use Fairey v. the AP

3. Have you seen this? The poster was created by the artist Shepard Fairey. www.educateIP.org

4. Fairey supported Barack Obama in the 2008 presidential campaign and created a series of posters. On the Internet, Fairey sold posters and T-shirts with the poster’s image. He used the money he made to make more posters. He gave away hundreds of thousands of them to Obama supporters. www.educateIP.org

5. The posters were a hit. The Obama campaign adopted the poster for the campaign. The image stayed the same, but the words at the bottom of the poster varied between HOPE, PROGRESS, VOTE, and CHANGE. After Obama’s election, Fairey created a similar poster for the inauguration. Magazines have used the poster on their covers. A print of the poster now hangs in the U.S. National Portrait Gallery in Washington, D.C. www.educateIP.org

6. But a problem arose. The Associated Press, a major news organization, wrote a letter to Fairey. AP said that Fairey had copied, without permission, its photograph to make his posters. Photograph by AP photographer Mannie Garcia. AP demanded that Fairey pay a fee to use the photo and pay them part of the money he had earned from selling T-shirts, etc. with the poster image. www.educateIP.org

7. The case went to court. Soon, you will take part in the trial. Just in case you haven’t completed law school, here is some information you’ll need to prepare for this case. (Feel free to take notes.) A photograph is intellectual property and is protected by law. As soon as a photograph is taken, it is automatically copyrighted under U.S. law. The purpose of copyright laws is to promote knowledge and creativity. It gives people incentives to create more because they will be compensated for what they create. Nobody may copy the photograph without the permission of the owner of the copyright. The Basics of Copyright www.educateIP.org

8. The Fair Use Exception An exception to copyright is fair use. Let’s say that someone is reviewing a movie on a blog. The reviewer may use a short clip from the movie to comment on it. This is fair use of the copyrighted movie. www.educateIP.org The courts have long recognized the fair use exception. Congress wrote it into the 1976 Copyright Act. The fair use exception has the same purpose as the copyright law: To promote knowledge and creativity.

9. Now that you have taken the Copyright and Fair Use law school course, you’re ready to start preparing for this case. You need to consider four questions. (Oh…feel free to keep taking notes.) Be sure to pay attention to the answers Fairey and the AP give to the questions. These answers will help you lawyers create your arguments and judges predict what the lawyers will argue. www.educateIP.org

10. Was the copying done for commercial purposes? (Meaning to make money. The law favors non-commercial uses.) Fairey: No, it was not a commercial use. I made no money from the posters. I donated all the money to making more posters, and I gave away hundreds of thousands of posters free. AP: Yes, it was a commercial use. He sold T-shirts, etc. What he did with the money does not matter. 1. www.educateIP.org

11. Did the use transform the copyrighted work? (Meaning did the copy change the original. The law favors creativity over just copying.) Fairey: Yes, I completely changed the photo. I took a news photo and changed it into a “stunning, abstracted and idealized visual image” with a powerful new meaning and message. AP: No, the use hardly changed the original photo. Fairey kept “the heart and essence” of the original, including “its patriotic theme.” Fairey’s art is just “computerized paint by numbers.” 2. www.educateIP.org

12. How much was copied? The law favors those who use only a small portion of the original work. How much of the original was copied? What do you think? 3. www.educateIP.org

13. The law favors uses that do not lower the value of the original work. Fairey: AP sells most of its photos to news organizations. This photo only had value as a record of an event in 2006. Fairey’s use of the photo gave it a lot of publicity and actually increased its value. AP: AP licenses its photos for many purposes. For example, political campaigns frequently buy licenses to copy photos. If artists and others copy AP photos without paying for a license, AP will lose a lot of money. How did it affect the original’s value? 4. www.educateIP.org

14. Now it’s time for you to take part in the case… You are going to play one of the following roles: You will work in partners to prepare for the case. Your teacher will let you know if you and your partner are judges, lawyers for AP, or lawyers for Fairey. Judge Lawyer for AP Lawyer for Shepard Fairey www.educateIP.org

15. The Lawsuit Fairey admitted using the photo, but he believed he had done nothing wrong. He filed a lawsuit asking a court to declare his use of the AP photograph as fair use. AP filed a counterclaim to the lawsuit. It claimed Fairey’s use of the photograph was not fair use. www.educateIP.org

16. Get Ready for Court To prepare for court… Think of arguments you will make to the judges about the four questions. You might divide the questions between partners. Work together to share and polish your arguments. Predict what each side will argue and think of at least three questions you will ask each side. Decide who will question each side. Your teacher will let you know how much time you have to prepare for the case. Ready…set…prep! www.educateIP.org

17. Time to Go to Court! The judges in the group will run the court. The judges should … 1. Have the lawyers present arguments in this order: Attorneys for Fairey present first. (3-4 minutes) Attorneys for AP present second. (3-4 minutes) 2. Keep order in the court. Your teacher will match you and your partner with a team of judges and the opposing lawyers. Once you are in your groups: www.educateIP.org

18. The Verdict You’ve heard and discussed the arguments. No one factor by itself should determine the outcome. Weigh all the factors and decide whether the copying was a fair use. 1. Was it done for commercial purposes? 2. Did it transform the copyrighted work? 3. How much was copied? 4. How did it effect the value of the original? www.educateIP.org

19. The case of Shepard Fairey v. Associated Press settled out of court in January, 2011. Neither side gave up their view of the law. As part of the settlement, Fairey agreed: 1)Not to use any photographs by AP photographers without a license. 2)To share the rights to produce merchandise from the image with AP.

20. What Do You Think? Do you think this is an easy or difficult fair use case? Why? What arguments did you find most persuasive? Least persuasive? Why? Why do think there is a fair use exception to copyright laws? Do you think there should be one? Why or why not? www.educateIP.org

21. This project is a collaborative effort of Street Law, Inc. and Constitutional Rights Foundation. Educating to Protect Intellectual Property (ePIP) is funded by grant 2009-BE-BX-0001 from the United States Patent & Trademark Office and supported by the United States Department of Justice. Developed by Marshall Croddy, Bill Hayes, Damon Huss, Laura Wesley Written by Bill Hayes Produced by Keri Doggett with Andrew Costly www.educateIP.org