Fisher Round 4
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Harvard Journal of Law & Technology Volume 25, Number 2 Spring 2012 REFLECTIONS ON THE HOPE POSTER CASE William W. Fisher III, Frank Cost, Shepard Fairey, Meir Feder, Edwin Fountain, Geoffrey Stewart & Marita Sturken* TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 244 II. THE CASE ..................................................................................... 245 A. Facts ......................................................................................... 245 B. Litigation .................................................................................. 254 C. Arguments ................................................................................ 257 1. Improper Appropriation ......................................................... 257 2. Fair Use ................................................................................. 260 D. Resolution ................................................................................ 268 III. REFLECTIONS .............................................................................. 269 A. My Take (Shepard Fairey) ....................................................... 269 1. What I Was Trying To Achieve with the Hope Poster and How I Sought To Achieve It .................................... 269 2. Why Use a Photograph? ........................................................ 272 3. Why I Did Not Obtain a License ........................................... 274 4. Why Litigate — and Why Settle? .......................................... 276 B. The Obama Hope Poster as Image Icon (Marita Sturken) .................................................................................. 277 C. The Evolving Role of the Camera and Photography in the Making of Transformative Art (Frank Cost) .................... 288 1. The Use of Cameras Before Photography ............................. 289 2. Photographic Processes ......................................................... 290 3. Photographic Halftone Reproduction in Print Mass Media ............................................................................... 293 4. The Electronic Photograph .................................................... 294 5. Conclusion ............................................................................. 297 * William W. Fisher III is the WilmerHale Professor of Intellectual Property Law at Har- vard Law School. Frank Cost is a Professor in the School of Photographic Arts and Sciences at the Rochester Institute of Technology. Meir Feder, Edwin Fountain, and Geoffrey Stewart are partners at Jones Day. Marita Sturken is a Professor and the Chair of the Department of Media, Culture, and Communication at New York University. The authors are grateful for the comments and suggestions of Gerald Frug, Jordan Gim- bel, John Palfrey, Diane Rosenfeld, Steven Shavell, Lloyd Weinreb, and the participants in a Harvard Law School Faculty Workshop. 244 Harvard Journal of Law & Technology [Vol. 25 D. What’s Wrong with the Copyright Regime (Meir Feder, Edwin Fountain & Geoffrey Stewart) .................................... 298 1. Unpredictability ..................................................................... 299 2. Jury Prejudice Against Copying and Copiers ........................ 305 3. Punitive and Asymmetrical Penalties .................................... 305 A. Damages and Remedies ..................................................... 306 4. Fee Shifting ........................................................................... 311 5. Conclusion ............................................................................. 312 E. How to Handle Appropriation Art (William Fisher) ................ 313 1. Why Copyright Law Should Not Proscribe Appropriation Art. ........................................................... 315 2. Practicable Reforms ............................................................... 318 3. Conclusion ............................................................................. 326 IV. APPENDIX: FIGURES .................................................................... 327 I. INTRODUCTION In January of 2008, Shepard Fairey used a photograph of Barack Obama as a reference work when creating what came to be known as the “Hope Poster.”1 The Associated Press (“AP”), the owner of the copyright in the photograph, demanded compensation from Fairey, who had used the photograph without permission. When negotiations broke down, Fairey initiated litigation, seeking a declaratory judgment that he had not engaged in copyright infringement. Two years later, the parties settled the suit. The authors of this Article were involved in the litigation in vari- ous ways. Fairey was one of the principals. Meir Feder, William Fish- er, Edwin Fountain, and Geoffrey Stewart were among the lawyers who represented Fairey pro bono.2 Frank Cost and Marita Sturken served as expert witnesses for Fairey.3 This Article sets forth the authors’ thoughts about the case. Alt- hough all of the authors believe that Fairey’s legal position was stronger than that of the AP, the purpose of the Article is not to defend that belief. Rather, the Article aspires to derive from the case some 1. See infra Figure 1. 2. They were joined by Professor John Palfrey of Harvard Law School and, at various stages of the case, by Jordan Gimbel, Damon Lewis, Chris Lopata, Alan Rabinowitz, Jen- nifer Schramm, Tim Solomon, Katherine Stern, and Miriam Weiler of Jones Day. Fisher and Palfrey were assisted by a remarkable group of Harvard Law School students — Martin Adams, Julian Burns, Emily Cox, Zachary Elsea, Philip Foust, Jonathan Gingerich, Colleen Hannigan, Katherine Hill, Amanda Jawad, Katie Kriegman, Iliana Ongun, Lina Peng, Vera Ranieri, Yael Resnick, Matthew Vittone, Ryan Ward, Miriam Weiler (before she joined Jones Day), David Wittenberg, and Jacob Wronski — and by two dedicated Harvard librari- ans — June Casey and Kim Dulin. 3. Other expert witnesses for Fairey included Professor Steven Shavell of Harvard Law School (who generously volunteered his time), Jeff Brandlin of Brandlin & Associates, and John Jarosz of the Analysis Group. No. 2] The Hope Poster Case 245 insights into the increasingly complex intersection of art, technology, and law. Part II lays the foundation for the analysis by summarizing the facts of the case, the history of the litigation, and the arguments ad- vanced by the two primary parties. Part III then offers a series of re- flections. II. THE CASE A. Facts4 Shepard Fairey is a graphic artist. He received his formal training at the Rhode Island School of Design, where he took several courses in photography and screen printing. After graduating, he worked as a screen printer, designer, and illustrator. He divided his time between graphic design projects commissioned by clients and his own art, de- riving most of his income from the former. For several years, he struggled financially. In recent years, however, he has been able to support himself through his work as an artist. Today, he is a part own- er of three businesses that have grown out of his work: Obey Giant Art, Inc., which distributes Fairey’s graphic art; Obey Giant LLC, which licenses Fairey’s art for use on apparel and merchandise; and Studio Number One, a commercial graphic design firm. Together, these companies have approximately fifteen employees. Much of Fairey’s art has been characterized by two related traits. First, it has a distinctive aesthetic, which Fairey has described as a “bold iconic style that is based on stylizing and idealizing images.”5 Second, since approximately 1990, much of Fairey’s art has been overtly political in character. Many of his images criticize, typically through caricature, prominent politicians; others explore the power of propaganda; others celebrate musicians or counterculture figures; oth- ers advance causes, such as environmentalism or privacy protection.6 Fairey sometimes licenses his designs to third parties. One of those licensees, OBEY Clothing, Inc., applies Fairey’s artwork to sweatshirts, t-shirts, coffee mugs, and so forth. Fairey typically re- ceives from OBEY Clothing a royalty of 4.5% of the gross revenues generated through sales of those goods. 4. The source for factual assertions made in this Part that are not otherwise attributed is Shepard Fairey. 5. Transcript of Deposition of Shepard Fairey at 783–84, Shepard Fairey v. Associated Press, No. 09-01123 (S.D.N.Y. 2010) [hereinafter Fairey Dep. Tr.]. 6. Samples of Fairey’s work can be found on the Obey Giant website, see OBEY GIANT — WORLDWIDE PROPAGANDA DELIVERY, http://obeygiant.com (last visited May 3, 2012), and in SHEPARD FAIREY, OBEY: SUPPLY & DEMAND, THE ART OF SHEPARD FAIREY (2006). 246 Harvard Journal of Law & Technology [Vol. 25 The AP is a “news cooperative, owned by its American newspa- per and broadcast members.”7 The AP has approximately 3,700 em- ployees.8 The primary objective of the AP, in its own words, is to provide “a truthful, unbiased report of the world’s happenings.”9 In keeping with that broad statement of principle, the AP states as a fun- damental value that “AP pictures must always tell the truth. We do not alter or digitally manipulate the content of a photograph in any way.”10 Mannie Garcia is a professional photojournalist who has worked for a variety of wire services. In April 2006, he was working for the AP. Through his work with wire services, Garcia has been able to acquire so-called “hard credentials,” which enable him to cover news events