Copyright & My Posters

Dear Andy Mabbett.

I believe my works satisfy the criteria established by the following passage in the 1994 decision of the Supreme Court in Campbell v. Acuff-Rose Music:

The central purpose of this investigation [into the purpose and character of the defendant’s use] is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space . . . . (510 U.S. at 579 (citations omitted).)

I understand that since my composite posters, like the “Hope Poster" of Shepard Fairey that uses photograph of President Obama by Mannie Garcia for the AP, are created using Referenced Photographs intended to convey a transformative message of my own, without any prejudicial to the photographers' reputation or honor, they are not “improper appropriation ” and they are adhering to Copyright Act's definition of Moral Rights. Furthermore, since my posters are not for profit, and are intended for increased awareness to the plight of humanity, they are protected under the Doctrine of Fair Use. I have published many social and humanistic posters on my websites for a number of years, and despite having more than 400,000 visitors I have not received any complaints from the photographers. It goes without saying that should I receive any information about the photographers I would fully credit them, and if they so wish I will remove their photos.

As the Supreme Court explained in 1994, “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” (see: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (second alteration in original) (quoting U.S. CONST. art. I, § 8, cl. 8).) The US Congress has “eschewed a rigid, bright-line approach to fair use,” and thus task of ascertaining fair use “is not to be simplified with bright-line rules.” It has identified “various factors that enable a court to apply an ‘equitable rule of reason’ analysis to particular claims of infringement,” one that calls for “a sensitive balancing of interests". ( Please see: William W. Fisher III, Frank Cost, Shepard Fairey, Meir Feder, Edwin Fountain, Geoffrey Stewart & Marita Sturken, REFLECTIONS ON THE HOPE POSTER CASE, Harvard Journal of Law & Technology Volume 25, Number 2 Spring 2012).

My posters ever so slightly use "appropriation techniques" which have reached new conceptual levels in the context of postmodern art. “Appropriation Art borrows images from popular culture, advertising, the mass media, and other artists and incorporates them into new works of art.” (see:William M. Landes & Daniel B. Levine, The Economic Analysis of Art Law, in 1 HANDBOOK OF THE ECONOMICS OF ART AND CULTURE 211, 217 (2006). For a similar definition — and many examples of appropriation art — see Emily Meyers, Art on Ice: The Chilling Effect of Copyright on Artistic Expression, 30 COLUM. J.L. & ARTS 219, 220–21 (2007). ) The term “appropriation art” is thus used for those works that comment on questions of authorship through appropriation. Most famous of these is Sherrie Levine’s 1981 work After Walker Evans, in which she copied well-known photographs by Walker Evans and displayed the copies as her own work. 113 Such works are defined as appropriation art since they directly comment on issues of authenticity, ownership, and reproducibility. As well, Robert Rauschenberg integrated news photographs into many paintings, often using a typical Abstract Expressionist brushstroke effect to transform the images. Notably, Rauschenberg created a series of silkscreen prints about John F. Kennedy (that presage the Obama Hope Poster). As professor Marita Sturken in the Harvard journal has argued:

The range of techniques that modern artists have used to transform photographs varies significantly, though these works share a sensibility of engagement with the world of news, politics, and the immediacy of the photograph. Some of these artists, like Rauschenberg, transform images by incorporating them into collages; others use color but do not change the image forms dramatically; still others break the images down to the point where they are barely recognizable, remaining only as a trace. Some artists transform images while inserting them whole into their own art works. Barbara Kruger, for instance, has a signature style of enlarged news images with bold phrases splashed across them on red bands. Kruger does not rework the images, but rather obscures parts of them and transforms them through text that operates through irony and critique.

I do understand the doctrine that even snapshots enjoy copyright protection. As Learned Hand pointed out long ago, “no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike.” Contemporary courts, aware of that fact, routinely shield even modestly creative photographs against unauthorized reproduction. (See, e.g., Rogers v. Koons, 960 F.2d 301, 307–08 (2d Cir. 1992); Images Audio Visual Prods. v. Perini Bldg. Co., 91 F. Supp. 2d 1075, 1084–85 (E.D. Mich. 2000)). However, in Feist, the Court noted: The primary objective of copyright is not to reward the labor of authors, but “to promote the Progress of Science and useful Arts.” Art. I, § 8, cl. 8. . . . To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. In fact, copyright in [a] photograph conveys no rights over the subject matter conveyed in the photograph.” (See NIMMER, supra note 53, § 2.08[E][1] .) An important application of this principle is the rule that the features of the face of a photographic subject are not protected. ( See, e.g., Straus v. DVC Worldwide, Inc., 484 F. Supp. 2d 620, 638 (S.D. Tex. 2007).) This rule is an outgrowth of a fundamental precept of copyright law, known as the “idea/expression” or “fact/expression” distinction, which in turn is rooted in the constitutional basis of the copyright system.

Moreover, a corollary of the idea/expression distinction is that “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic” are not protectable under copyright law. (see: Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir. 1980) (quoting Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y. 1978)). Such elements are known as scènes à faire — a phrase that, roughly translated, means “scenes which ‘must’ be done.” (see: . Schwarz v. Universal Pictures Co., 85 F. Supp. 270, 275 (S.D. Cal. 1945).

Several recent court opinions illustrate my points. In one case, the plaintiff held the copyright for seven images used in advertising concerts by the musical group the Grateful Dead. The defendant, without permission, reprinted copies of those images in a “coffee table book” that recounted the history of the Grateful Dead. The Second Circuit upheld the District Court’s grant of summary judgment to the defendant, relying heavily on the fact that the purposes of the posters and the purpose of the book were different. “[E]ach of [the plaintiff’s] images fulfilled the dual purposes of artistic expression and promotion. . . . In contrast, [the defendant] used each of [the plaintiff’s] images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on [the book’s] timeline.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). This difference in purpose, the court concluded, rendered the defendant’s activity “transformative,” despite the fact that the defendant’s book did not criticize or comment upon the posters. Id. at 609–10. Other recent decisions that rest upon the same principle include Núñez v. Caribbean Int’l News Corp., 235 F.3d 18, 22–23 (1st Cir. 2000), and Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1164–65 (9th Cir. 2007).

In conclusion, I would Echo Shepard Fairey's contention that:

I would love to have the clout to command portrait sittings from world leaders, but that is not an option for me and for most artists. For many artists, even licensing an image is not financially feasible. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images, even when the final artistic product has new intent and meaning? Reference is critical to communication, and, in my opinion, reference as a part of social commentary should not be stifled.

All The best Guity Novin, Artist and founder of Transpressionism