Prof. Randal C. Picker, The University of Chicago Law School
Feb. 11, 2009

The lawsuit filed Feb. 9 by Shepard Fairey against the Associated Press raises some basic questions about what copyright does and doesn’t do. Yesterday’s New York Times describes the background  and displays the two critical images.  The first is a photograph snapped by Mannie Garcia for the Associated Press (there seems to be dispute over the copyright to the photograph between Garcia and the AP, but that isn’t my issue today).  The second is a now iconic poster created by Fairey based upon the Garcia photograph.

The lawsuit suggests that Fairey used the Garcia photograph as a “visual reference” in creating two Obama posters.  I am not quite sure what that means.  I take that to mean that Fairey looked at the Garcia photograph while he created the Obama posters.  An alternative use of the Garcia photograph would be something more akin to a remix or a mash up, where the transformations resulting in the new work are directly made on the original work.

I think that there are good reasons to treat those two cases differently.  In snapping Obama’s picture, Garcia did not obtain a right over any other images portraying Obama’s original look, pose, and posture.  Another photographer taking exactly the same picture at exactly the same time would have full rights as to the image she took, and Garcia could not somehow block the second photographer merely because he had simultaneously taken the same picture.

We can now extend that analysis over time.  Fairey clearly accessed Obama’s original look, pose, and posture through the Garcia photograph.  But the copyright in that photograph does not in and of itself control access to the underlying event that the photograph captures.  A subsequent work producer like Fairey has as much right to access that original event as does our hypothetical simultaneous photographer.  Copyright, on its own, doesn’t control access, and as I have suggested elsewhere, we often will need to rely on other mechanisms such as contract or technical controls to control access.  Once the Garcia photograph has been distributed in the clear, Fairey has unconstrained access to the underlying event captured in the photograph.

How does copyright mesh with this framework?  The core rights that would presumably be litigated in the lawsuit are the right to reproduce an original work under section 106 (1); control over derivative works under section 106(2); and of course fair use.  In considering how those rights operate, we have to separate accessing the underlying event through the creative work represented by the photograph from actually copying the photograph or making a derivative work of it.  I understand Fairey to have to have accessed the original event through the Garcia photo rather than to have physically remixed the photo itself.

I’m not much of a photographer — and have the unprinted digital images to prove it — but I’ll take a crack at dissecting the Garcia image.  There is Obama; the American flag background that frames him; and perhaps lighting.  Garcia did not pose Obama.  This is not Oscar Wilde and Napoleon Sarony.  To be sure, Garcia must have taken many images of Obama that day and he selected — or someone at the Associated Press selected — what he thought was a great image.

But that does not change the underlying fact that that image simply records an actual event and that the photograph provides a means on its own for others to subsequently access the original underlying event.  We have the framing of Obama by the American flag.  Fairey doesn’t copy that but instead provides his own framing.  Finally we have the lighting.  I doubt it was actually controlled by Garcia and, in any event, I don’t have enough of an eye to tell you how much Fairey embraced of what Garcia captured.

All of that is about the question of what was copied from the Garcia work, as opposed to taken from the original event as accessed through the Garcia work.  Copyright is all about the former; copyright doesn’t deal with the latter.  In this framework, where Garcia cannot prevent access to the underlying event via copyright just as he could not in the case of simultaneous photos, it will be incumbent upon Garcia to establish precisely what Fairey copied other than the underlying event in Fairey’s poster.

That is the question of infringement and that arises before we even get to the question of whether there is fair use.  Garcia will find it easier to make that case if Fairey has physically worked from the original image and remixed it.  Much harder, I think, if Fairey has merely looked at the Garcia photograph and then created his own image.  That will be hard to separate from Fairey’s own interpretation of the original event and copyright proper doesn’t bar Fairey from accessing that original event through the Garcia photograph.