Fair use quandary

The copyright “fair use” dispute continues between the AP and its freelance photographer Mannie Garcia — who took a 2006 photo of then-Senator Barack Obama — and poster artist Shepard Fairey, who has sold thousands of T-shirts and other nick-nacks with his colorized version of the Obama photo. (There’s even a Flash 10 website where you can colorize your own photo).

It is not clear how much Fairey has made off of the Obama image. Six months ago, the estimated pretax(?) profit was $400K, but that must be much higher by now. From one rendering alone — an inaugural poster — the gross revenues would be $1.4 million if it sold out. It seems like a conservative estimate of the gross revenues would be $3 million or more, with gross margins of 50% or more.

The AP countersued Fairey last week, saying that the artist had broken off discussions of licensing rights to the AP photo:

The cooperative said it tried to work out a license agreement with Fairey and agreed to donate proceeds from his prior use of the photo to a charitable fund that helps AP staffers who suffer personal losses in natural disasters and conflicts. Fairey cut off negotiations, the AP's lawsuit said.

The most detailed legal argument can be found from Carolyn Wright at her Photo Attorney blog. Some representative commentaries thus far:

• For Fairey and derivative works: Erick Schonfeld on TechCrunch, Larry Lessig (whose lawyers are representing Fairey)
• For the AP and copyright: Dan Wasserman of Boston.com.
• A plague on both their houses: Joel West of you who who.
• Strangely silent: IP law professor Mike Madison and friends at Madisonian.net; are they reluctant to criticize their friend and colleague for his efforts to use “free culture” to kill IP law once and for all?

On Monday, publishing executive and amateur IP economist L. Gordon Crovitz weighed in on the controversy. His “Information Age” column in the WSJ continues to grow in my estimation, as one of the few places where the economic realities of information business models are considered without predictable pandering to one side or the other.

Crovitz also starts out with the “plague on both their houses” approach, but eventually sides with the AP. While this might seem predictable for the former WSJ publisher, his version is far more nuanced than last Friday’s plea from ABC News president (and AP board member) David Westin.

Crovitz seemed offended by the scofflaw approach by the nominal artist:

As for Mr. Fairey, instead of agreeing on a licensing fee, he worked with Stanford University's Fair Use Project to sue the AP, claiming that the poster was fair use of the photo. The Stanford group, founded by Lawrence Lessig, favors fewer protections for copyright. In Mr. Lessig's recent book, "Remix," he rightly criticized many copyright claims. He cited the lawsuit brought by Universal Music against a woman for posting on YouTube an amusing clip of her infant dancing to a song by Prince. There's no opportunity to license snippets of songs and no harm done to Prince.

But this case is different. The AP and Mr. Garcia make their livings selling their work. As a reader commented on Mr. Lessig's blog, "I don't think photographers, professional and amateur, are going to appreciate free-culture types saying that their work is not creative since it only took a second to snap a picture."

The less-copyright-is-always-better crowd has an odd champion in Mr. Fairey. He earned street cred by being arrested for graffiti and uses imagery from Che Guevara and the Black Panthers, but such rebellion is now so establishment that he designed a current ad campaign for Saks Fifth Avenue. He and his lawyers often complain about alleged infringements of his copyrights by other designers.

Digital technology complicates copyright, but technology doesn't override the importance of showing respect for the work of others.

Claims of fair use reiterated from Feb. 5.