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.