Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
May 6, 2009

[This is the second in a series about copyright in the 2008 presidential campaign.]

The 2008 presidential election had more than its share of copyright disputes involving the candidates.  In the first essay in this series (April 14) we explored the most familiar sort: dust-ups about pop songs being used at political rallies and in candidates’ commercials.

The Obama-McCain contest also brought two different kinds of copyright disputes into the headlines, one involving fundamental questions about copyright protection that go back to the 19th century, and the other concerning some of the newest provisions added to American copyright law.

The dispute going to copyright’s fundamentals erupted shortly after the election and concerns the emblematic “Hope” poster of Barak Obama’s presidential campaign.

The poster, by Shepard Fairey, was based on a photograph taken by Mannie Garcia, a Washington photographer who was working for the Associated Press (AP).  The AP claimed ownership of the photo and sought payment for the poster as a derivative work.

Of course, companies and institutions are constantly (and reasonably) trying to “monetize” their intellectual assets, but I want to convince you that what AP did was a bad idea – not just self-inflicted bad publicity, but a claim that is quite likely unsound under copyright law.   Here is the original photo and the poster:

In the face of the AP claim, Mr. Fairey brought a declaratory relief action, seeking a court declaration that his use of the Garcia photo was fair use.  He definitely should prevail on fair use, but, if the court properly applies copyright doctrine, we may never even get to the question of fair use.

The reason is simple, but depends on the subtleties of copyright law: Although the Garcia photograph is copyrighted, Mr. Fairey probably did not copy any protectable elements from that copyrighted photograph.

A fundamental principle of copyright law is that when something is copyrighted, the copyright only protects the expression that was original to the author.  So we have to ask, what’s original about the photo?

That is, what belongs to Garcia or the Associated Press?  Certainly neither President Obama’s face nor the shape of his head.  Not Obama’s haircut (that could be a copyrighted work, but not the photographer’s), not the color of his tie, not the knot (he or Michelle created that).

Typically when analyzing copyright in a photograph we say that the photographer might have originality in the choice of focus, lighting, colors, angle, and framing.  In that context, the fundamental weakness of AP’s claim is apparent from its court filings.  Consider this passage from the AP’s court filing:

Fairey could have selected from any one of countless images of President Obama….  Instead, Fairey was drawn to the unique qualities of this particular photo, made distinctive by Mr. Garcia’s creative and artistic input, including his deliberate selection of a specific moment in time to capture President Obama’s expression; (2) his choice in using a particular type of lens and light for optimal impact; and (3) his careful and unique composition of the photograph.

Doctrinally, it does not matter whether Mr. Fairey was “drawn” to certain qualities of the photograph.  In copyright law, we ask what elements did Fairey copy and were those elements original to Garcia?

Perhaps Fairey copied the expression on President Obama’s face, but that was Obama’s; Garcia just captured it, he did not even “arrange” or evoke it in the way a fashion photographer or a feature film director might.  The lighting is not reproduced by Fairey’s quirky colors and, even if it were,1 the lighting was not something Garcia controlled.

“Using” a particular kind of lens is not protected, only the results – and Garcia’s results are not original in the sense that some of the results of Ansel Adams’s lens and exposure choices might have been.  Finally, the composition of Fairey’s poster is different from that of Garcia’s photograph.

The relationship between copyright and photography (and videography) has always been nuanced, often strained, and sometimes flat-out disingenuous.  The combination of photography’s artistry and truth-function, its technique and technology, made it a baffling subject for mid-19th-century copyright experts on both sides of the Atlantic.

In the United States, the question of whether photography was protected by copyright came to a head in the 1884 case called Burrow-Giles Lithographic Company v. Sarony.  In Sarony the trial court found that Burrow-Giles had made (and tried to sell) 85,000 copies of a photograph of Oscar Wilde taken by photographer Napoleon Sarony in his studio.

It was a stunning amount of unauthorized reproduction at the time.  There was no question that the defendant had violated the copyright law if there were a valid copyright in the photograph, so the defendant argued that photographs could not be protected by copyright at all.

Based on the constitutional instruction that Congress may give “to Authors … the exclusive Right to their respective Writings,” Burrow-Giles argued “that a photograph is not a writing nor the production of an author.”  Burrow-Giles described the process of photography as “simply the manual operation, by the use of … instruments and preparations, of transferring to [a] plate the visible representation of some existing object.”

During roughly the same period, Kodak advertisements put the point a little more plainly: “You press the button, we do the rest.”

But Justice Miller, who wrote the Supreme Court’s opinion, did not view the fact-recording nature of a photograph as a bar to copyright.  He pointed out that the first Congress – which included many of the Framers – had expressly granted copyright to “maps” and “charts,” works that are prototypically fact-recording expressions.

With that issue put aside, the case became easy to decide because Napoleon Sarony’s photograph was genuine portraiture.  In terms evoking a beautiful painting, the trial court judge had described the photograph as a:

useful, new, harmonious, characteristic, and graceful picture and that plaintiff made the same entirely from his own mental conception, to which he gave visible form by posing said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression….

Based on this description, Justice Miller said that the photograph was “an original work of art.”  And if we heard that as a description of a picture we would probably all agree.

For most people who study copyright, Sarony stands for the proposition that photographs are copyrightable.  But the Sarony Court only says that a photograph can be copyrightable, not that every photograph is or will probably be copyrightable.

Indeed, after hearing the defendant’s argument that photography is “simply the manual operation … of transferring to the plate the visible representation of some existing object,” the Court acknowledged that that description might “be true in regard to the ordinary production of a photograph, and, further, that in such case a copyright is no protection.”

In other words, the Court said a completely “ordinary” photograph might have no copyright protection at all.  This part of the Sarony decision is rarely discussed.

So is the Garcia photograph of Barak Obama protected by copyright?  Yes, there probably are elements of the composition that genuinely reflect a modicum of creativity on Garcia’s part.  We can say that, as a whole, it is a “harmonious … and graceful picture.”

But if I am claiming that Fairey took no protectable elements from the Garcia photograph, why bother to say that the Garcia photograph is protected at all?  The difference is that unauthorized reproduction of the entire photograph by a newspaper, news service, or television stationwould be – and should be – an infringement of copyright.

What does all this mean?  Two things.  First, as a matter of legal doctrine, saying “photography is protected by copyright” is as sloppy as saying “words are protected by copyright.”  Like words, photography is just a medium out of which creative expression is made.

Words can give us spelling books or Faulkner’s novels; mud can give us bricks or the terracotta warriors of Emperor Qin’s army; photography can give us satellite images of city blocks or Brassai’s vision of the Paris night.  And even after some work – some photograph – is protected by copyright, not everything in the photograph is protected.

Second, when we say “photographs are protected by copyright” this is not just conceptual laziness; it also reflects our sometimes-disingenuous application of copyright law to photography and film.  Quite often courts give copyright protection to films and photographs where the real issue seems to be rewarding effort – and maybe protecting the little guy.

Examples include Abraham Zapruder’s film of the assassination of President Kennedy, George Holliday’s tape of the Rodney King beating, and Robert Tur’s aerial footage of the beating of Reginald Denny in the riots following the trial of the officers who beat King.  In each case courts concluded that the filmmaker deserved copyright protection.

If you grapple with the facts in these decisions, it becomes almost impossible to believe that there was any protectable originality.  Copyright was being awarded for labor, for being in the right place at the right time.

The problem is that our originality standard – even as low as it is – does not fit with the fact that we want people to have an incentive to take all kinds of non-original photos and films.  We want people taking non-original photos and videos of political campaign events, natural disasters, public demonstrations, and thousands of other kinds of events.  We want them to turn on the camera when things get interesting – and we think they should be rewarded when they do.

That’s the practical reason why I say direct copying of the Garcia photo for commercial uses unquestionably should be infringement.

Some European countries have dealt with this problem more honestly, i.e., by granting limited protection to non-original photos.  Until we do that, we will continue to have courts “finding” originality in photos and videos that really aren’t original.

That will contribute to the continued misunderstanding people have about the scope of copyright in photographs – and that will lead companies like AP to assert copyright infringement in situations where there isn’t any.

Comments From Our Readers

Robert C. Cumbow: Excellent and thought-provoking analysis.