Court: It's Fair Use To Use Exec Photos In A Griper's Wanted Poster

from the fair-use-it-is dept

Wed, Jul 29th 2009 10:30pm — Mike Masnick

We've had some interesting discussions around here concerning "fair use" lately -- especially in talking about the Shepard Fairey case. Some have suggested that because Fairey didn't do "enough" to change the look of the photo, it's not fair use. But, of course, that's now how fair use works. As an example of this, here's a recent lawsuit involving an angry blogger who set up some "gripes" sites against a certain company. He also created "WANTED" posters/postcards, using photos of execs that he pulled off the corporate internet page. Among other things, the company sued the griper, claiming copyright infringement for the use of the photos, but the court ruled in favor of fair use, even though the guy used the photos as they were. The company had tried to argue that since the guy didn't really change the images, there was no fair use, but the court dismissed that:

Sedgwick argues that there can be no fair use [as to the unaltered photos on the postcards] where, as here, Defendant did not alter the photographs of North and Posey.... [But] the salient inquiry is whether the use of the photos, in the specific context used, was transformative.... "[M]aking an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]"

Here, there can be no legitimate dispute that Defendant's use of North and Posey's photographs was transformative. Both images originally were used by Defendant for promotional reasons. Defendant, however, used the photographs as a vehicle for criticizing the Company. Specifically, both photographs are superimposed on postcards that mimic "WANTED" posters. Above each picture is the heading, in a large font, which states: "WANTED FOR HUMAN RIGHTS VIOLATIONS." The copy accompanying the photographs criticizes Sedgwick and its management's alleged mistreatment of claimants and questionable practices, and urges the public to report any misdeeds to the U.S. Department of Justice and state Attorney Generals. When viewed in context, it is clear that Defendant used North and Posey's photographs for a fundamentally different purpose than they were originally intended by transforming them into a vehicle for publicizing and criticizing Sedgwick's alleged business practices. In view of the above, the Court finds that the first fair use factor weighs strongly in favor of fair use.

Apply that same reasoning to the Shepard Fairey case, and you've got a clear transformation as well. The use was quite different than the original (news vs. political campaigning). Once again, a good reminder that "fair use" goes a bit further than what some people think. Separately, in the original link above, Eric Goldman points out that the other parts of the lawsuit against this guy were smartly tossed out as an anti-SLAPP violation.

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Filed Under: copyright, fair use, gripes site, shepard fairey

20 Comments

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Anonymous Coward, 29 Jul 2009 @ 11:14pm

Careful reaching so far Mike, you might hurt something.
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Marcia Neil, 29 Jul 2009 @ 11:19pm

name-use schemes
Names such as the one featured in this article can be exploited to the max without relief -- that one is tucked into copyright-law litigation, no doubt with the hope that a movie might result putting him in a category with C. and S. Shepard, perhaps as a shoo-in using "man-with-a-hook" stories. Also, that some kind of hook-shaped tool might be used to isolate a tiny oracle-bead artifact found between limestone roadside-rest/monument base and ground near Lake Erie latitude has generated a focus upon this name whether the name is genuine or contrived.
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Griffon, 30 Jul 2009 @ 12:18am

hmmm
Little odd, you could then argue that a picture posted on flicker for entertainment or even as a protest could be fairly used in say advertising, the logic reversal on that ruling is... interesting and slightly creepy.
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Mike V. Sardina (profile), 30 Jul 2009 @ 12:25am

Re: Anonymous Crowd
I don't believe that Mr. Masnick (Mike) is over-reaching here.

At first blush, the court's decision seems to support the notion that Shepard Fairey's poster falls within "fair use."

Unfortunately,　due to the publicity and exceptionalism surrounding the Fairey case, I don't foresee the Court disposing of the infringement claims as quickly and easily as the Judge did here.
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Anonymous Coward, 30 Jul 2009 @ 12:37am

You have to remember that there is commercial use in the Shepard Fairey case as well. Last I heard, Fairey made over $400,000 off those posters. If this blogger wasn't using the photos commercially, then the use wouldn't have to be as transformative. Fair use balances all the factors. Lots of fair use doesn't transform at all (reviews, types of news footage, etc.) but they still qualify because of other factors at play.
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Norm (profile), 30 Jul 2009 @ 1:30am

Judge
What I find interesting about this is not the parallels with the Shepard Fairey case, but the Judge's reasoning. It is a clear and concise description of a transformative work. This Judge clearly understands Fair Use.

Back to Shepard Fairey, what Mike didn't post was the section fo the ruling that could be, almost word for word, why Shepard Fairey's poster is fair use:

The fourth and final statutory factor is "the effect of the use upon the potential market for or value of the copyrighted work." ... [Sedgwick] argues that "the fourth factor weighs in [its] favor because Delsman's alteration, public display of altered photographs and public distribution of the same have injured Sedgwick's potential ability to continue to use the photos of its CEO and CFO (sic) for future marketing purposes." However, the relevant question is not whether the work itself has lost value, but rather, whether the secondary use has usurped the commercial demand for the original. Here, there is no such demand, since there is no commercial market for them. And even if there were, Defendant's use of the photographs is sufficiently transformative that it would not be a "substitute" for the original.
Moreover, the possibility that Defendant's use of the photographs has undermined Sedgwick's ability to use them in the future is not remediable under the Copyright Act. As the Supreme Court explained ..., "when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act." The Court finds that the fourth fair use factor favors Defendant.

Sedgwick = Associated Press
Delsman = Shepard Fairy
CEO/CFO photos = Obama photo
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Norm (profile), 30 Jul 2009 @ 1:32am

Re: Judge
Sorry, one quick thing:

The above coupled with the photo's transformation is why its fair use. Not just one or the other, but both.
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bob, 30 Jul 2009 @ 3:59am

Re: hmmm
What you are saying is logic turned up side down and backwards.
Flickr automatically defaults to The Creative Commons License. You seem to not know what that means, you should read it.
Also all rights can be reserved.
So outright use for a commercial endeavor is not allowed without the rights holders acquiescence.
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Anonymous Coward, 30 Jul 2009 @ 4:50am

Re: Judge
" However, the relevant question is not whether the work itself has lost value, but rather, whether the secondary use has usurped the commercial demand for the original. Here, there is no such demand, since there is no commercial market for them."

Since the image was already sold to AP, and potentially AP could sell the image again in the future, it still has commercial value. Obviously, if the "transformed" image has sold for even more, than it is clear this isn't "fair use", but rather a standard commercial use.

God knows what you guys are reading into this.
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CleverName, 30 Jul 2009 @ 5:16am

Re:
"Last I heard, Fairey made over $400,000 off those posters."

citation?
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Sean T Henry, 30 Jul 2009 @ 7:15am

Re:
So would it be any different if the postcards caused the WANTED company to lose $400,000 in revenue? I'm not sure but usually postcards are made to be purchased I would assume that they were being sold and not just given freely out of the kindness of the there heart.
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Anonymous Coward, 30 Jul 2009 @ 7:50am

'"Last I heard, Fairey made over $400,000 off those posters."

citation?'

Public reports all seem to indicate as such and I've heard no denial. E.g, http://www.creativereview.co.uk/cr-blog/2008/june/faireys-400k-for-obama
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Yakko Warner, 30 Jul 2009 @ 7:57am

There's a difference?
The use was quite different than the original (news vs. political campaigning).

I think that might be a stretch, especially since the news is reporting on the political campaign; and that these news media events are set up specifically for the purpose of their campaign.

And if you want to get really right-wing paranoid, you could also claim that the liberal media was campaigning for Obama as well... ;)

Just another random thought, I wonder how Obama feels about this. He might not give it a second thought, since he's a public figure and has pictures of him taken all the time. I just know I wouldn't be too comfortable with the idea of someone taking my picture and then attempting to claim ownership of my image. :?
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inc, 30 Jul 2009 @ 10:10am

I'm far from having the best grammar skills but this just doesn't sound right.

"But, of course, that's now how fair use works"
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Clueless, 30 Jul 2009 @ 10:36am

Re: Re: Judge
"Here, there is no such demand, since there is no commercial market for them. And even if there were, Defendant's use of the photographs is sufficiently transformative that it would not be a "substitute" for the original."

Love how you stopped just short of the last part of this. I would argue that Fairey's use of the photograph made the original more valuable not less. It can also be said that the original is still the same as before it's use and can be resold by AP as is or even for a profit if they were to market it correctly since Fairey's work has made the original more famous than it was to begin with.
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Clueless, 30 Jul 2009 @ 10:51am

Re: Re:
I think the postcards were being used for mailers, sent to the public through the mail, not sold to the public.
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Clueless, 30 Jul 2009 @ 10:54am

Re: Re: Judge
Also, Fairey's work is probably sufficiently transformative that it would not be a "substitute" for the original since anyone wanting to buy a photo of Obama would not ask Fairey for his artwork.
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Rob, 30 Jul 2009 @ 11:42am

Re: Re:
The postcards had no commercial value.. The cards were printed and mailed at the expence of sick and disabled people protesting the actions of the plantiff in this case
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Clueby4, 30 Jul 2009 @ 6:02pm

OT Question for Mike
It might be me but it seems that there's a lot more astroturfing. I also see a lot more of it ocurring on reddit. Perhaps with the economy downturn more people are picking up a astroturf side job.
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CleverName, 31 Jul 2009 @ 7:42pm

Re:
Sorry, but the link you provided does not support your allegation that "Fairey made over $400,000 off those posters".
Your statement implies that it was a personal monitary gain. The link states that the amount was raised in support of the presidential campaign. This is very different.

from the link you provided;
"Not only is Obama now assured of the Democratic nomination but, we can reveal, sales of Fairey's posters (shown above) raised over $400,000 to help him get there..."
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