This past weekend I edited one of my photographs a la Obama “HOPE” poster as you can plainly see. Thereafter I saved it as my display picture on my gmail and skype messaging accounts.
Next thing, a friend of mine jokingly points out that as an aspiring intellectual property lawyer, I should know better than to infringe the copyright of Mr. Sheppard Fairey, the artist behind Obama’s unforgettable campaign poster.
At this point, I then took it upon myself to educate my misguided friend on the complex yet intriguing area of law that is copyright infringement. In order to do this, lets assume hypothetically that Sheppard Fairey himself decides to sue me for copyright infringement
In order to establish copyright infringment through the reproduction or adaptation of an artistic work such as Fairey’s Obama poster, you have to prove that my work displayed above is both an objective and subjective copy.
1. The objective element of this enquiry entails an examination of whether there exists an objective similarity between the copyright work and my alleged infringing work. A court will determine “objective similarity” by deciding whether my work is a “chinese copy” (i.e. identical copy) or whether there exists a prior subject matter. What this means is that it is quite possible that the close ressemblance between my work and Fairey’s is simply due to the fact that both our works incorporate common prior subject matter. In the present case, we know that Fairey’s poster was an adaptation of Mannie Garcia‘s photograph of Obama. Therefore the existence of this original photograph in addition to the insertion of my own picture and the word: “COPE” rules out the argument that my work is an exact replica of the Fairey’s work.
2. The subjective element of this copyright infringment enquiry involves proving that there exists a causal connection between the original work and the alleged infringing work. This would be the most difficult part of my case. Causality can be established by using a simple “sine qua non” test: “but for Fairey’s work, my work would not have existed”. Although there may be a causal nexus between the works, it is still very possible for me to argue that I may have borrowed the colouring and format of my work from Fairey but the selection of my photograph and its subsequent editing were carried out independently and bear no substantial ressemblance to Fairey’s work.
Long story short, my picture is not a copyright infringement of Fairey’s poster.
Hang on, what if we took this argument one step further and asked whether Mannie Garcia (the photographer who took the original photograph of Obama) can sue Sheppard Fairey himself for copyright infringement of his work (i.e. the original photograph)?
One important clarification is that because Mannie Garcia was a freelance photographer working for the Associated Press (AP) at the time he took the picture you see displayed above on the left hand side, the AP effectively own the copyright to the photograph.
Now, coming back to the question I posed earlier: Can the Sheppard Fairey sue the AP for copyright infringement?
Well, actually.. HE DID!
If I was Fairey’s counsel on this matter I would argue that his work complies with all the requirements for the subsistence of copyright namely originality, creativity, and material embodiment. He’s a creative artist and he’s substantially changed the image that was made as a work of photojournalism by cropping a small portion just the Obama picture and transforming it.
On the other hand, if I was the attorney representing the AP, I would strongly argue that Sheppard Fairey’s work DOES INDEED amount to copyright infringement because he took out the “heart” of the photograph i.e. what we lawyers call the “heart and essence of the work” and undertook no transformation of the photograph whatsoever. Colouring it doesnt substantially change the original photo; that’s like colorising a black and white movie and it doesnt change it!
As you can see, I could defend either Fairey or the Associated Press in any court of law.
It all depends on who’s your client i.e. who’s paying me!