"Hope" Poster Dispute Settled

The dispute over the creation and use of the Obama "Hope" poster was recently settled.In Fairey v.

AP, as previously mentioned on this blog, the Associated Press had accused the artist Shepard Fairey of infringing its copyright on a photograph of Barack Obama by creating the popular "Hope" posters that were frequently seen during the 2008 presidential election campaigns. Fairey claimed that the poster he designed was fair use.

The case was particularly interesting because it nicely demonstrated the complexities of giving copyright protection to photographs. The issue is that a copyrighted work must be original, in the sense that the work must originate with the author of the work. This means that you cannot copyright facts, because facts are not independently created by the author; they are part of the state of the world. For example, the AP cannot copyright the fact that Obama was at the National Press Club or the fact that he was sitting in a certain seat, looking in a certain direction. Because a photograph necessarily encompasses facts such as these, courts are careful when it comes to photographs. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (giving copyright protection to photographs of Oscar Wilde).

One way to distinguish uncopyrightable facts from copyrightable original works is to identify the original contributions of a photographer. See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2006). When creating a photograph, a photographer has many opportunities to be original; she can select the content, choose a camera angle, pose the subject, time the picture, frame the subject, and add lighting. Each of these elements of a photograph can be given copyright protection.

Why is any of this important to the Fairey v. AP case? Because if a court had decided that Fairey had only copied the fact that Obama was sitting in a certain spot, looking a certain way, then he was unlikely to be liable for copyright infringement. Similarly, if a court had decided that Fairey had taken only a few of the copyrighted elements of the AP photograph, it would have supported a finding of fair use and could also have made him not liable for infringement. Because the AP has settled the dispute with Shepard Fairey, these issues might go unanswered for a while.

Then again, the AP has not yet settled a related case against Obey Clothing, where a company was manufacturing T-shirts and other apparel that bore the "Hope" design. The details of giving copyright protection to photographs could become an issue for AP and Obey Clothing as that case progresses.

Source: Shepard Fairey and The A.P. Settle Legal Dispute [NYT]