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There's an overused quote attributed to Pablo Picasso (without evidence): "Good artists borrow, great artists steal." But the truth is that when great artists steal, they get sued for copyright infringement. That's what happened to Shepard Fairey.  Actually, he and the Associated Press are suing each other over Fairey's Hope poster, which Fairey made in 2008, during the Democratic primaries. Fairey created the image by copying a photo (either by tracing it or scanning it into a computer) by AP photographer Mannie Garcia. The AP claims that Fairey should have licensed the photo and attributed it to them.

Before there was free speech, there was a federal copyright law. Article I, Section 8, Clause 8 of the U.S. constitution reads, "The Congress shall have Power... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The first copyright law was established in 1790, a year before the Bill of Rights was fully ratified.

AP's in-house counsel Laura Malone said in a press release, "Fairey has licensed AP photos in the past for similar uses and should have done so in this case.  As a not-for-profit news organization, the AP depends on licensing revenue to stay in business."

But Shepard Fairey said in an interview on NPR's Fresh Air, "I'm claiming fair use on the grounds that this is an image that has been transformed graphically, and it may be even more significantly transformed in its intent."

So what is fair use?

The term "fair use" originated in the United States. The idea was to make room for certain uses of copyrighted materials -- for example, if you wished to quote from someone else's book in your book. It existed only in common law until 1976, when it was incorporated into copyright law. The law listed four "factors" courts should consider when determining fair use (derived from Joseph Story's opinion in the 1841 case Folsom v. Marsh):

    1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. The nature of the copyrighted work;
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. The effect of the use upon the potential market for or value of the copyrighted work.

If this all sounds a little vague, that's because it is. Fair use was never meant to be a black and white category. As Justice David Souter wrote in his decision in the 1994 case Campbell v. Acuff-Music, fair use "requires case by case analysis rather than bright line rules." In other words, this is the time when judges get to be what they've always wanted to be: art critics.

So lets examine the four factors. And for dramatic purposes, I'd like to work backwards. Factor four asks, did the "Hope" poster hurt Garcia's ability to make money off of the photo? Almost certainly not. As Garcia said on Fresh Air, signed copies of his photo sell for a handsome sum.

(At this point, I feel compelled to point out one of many wrinkles in our story.  AP claims to own the copyright to the source photo. But Garcia disputes this. He claims he was a freelance photographer at the time he took the photo, and that he owns the rights. How this will play out in court is anyone's guess).

The AP will argue that if everyone used its photos without permission, then it would be out of business. But the argument could also be made that the purpose of the AP's photos are to supplement news stories, and that a campaign poster doesn't supersede that... but we're getting ahead of ourselves.

It's also worth noting that Fairey claims to have made no money off of the Hope poster. What money he did make from selling merchandise was funneled back into the project, which distributed hundreds of thousands of posters and stickers all across the country during the election year.

Factor three concerns how much of the original piece is used. For example, an online news site can put 30 seconds or so of a movie on its website, so long as it supplements some sort of news or commentary about the movie. Putting up all or even half of the movie is a no go. This is the factor the AP will stress in its case, as Fairey clearly used the majority of the original photograph.

In fact, this may explain why Fairey lied about which photograph he used (he says he was mistaken, but there's reason to believe he lied, including the fact that his lawyers withdrew from the case). He originally claimed to have used another photo by Garcia, taken at the same event, showing Obama sitting next to George Clooney. Had Fairey used the wider shot, he could have argued that he used only a small portion of the photograph.

Factor two concerns the nature of the original work. After all, there are things you can't copyright. David Post, Professor at Temple Law School, wrote on the Volokh Conspiracy:

Garcia's photograph is, certainly, a work protected by copyright -- but only its "original" elements are protected. The photographer has no protection for depictions of what the world (including Pres. Obama) actually looks like, but only in the artistic and creative decisions that are given visible expression in the photo. There's certainly some of that in the photo -- the background, for example, and perhaps the lighting and exposure that Garcia used. But what Obama looks like, and the tilt of his head, are not protected original elements of the photo, because they do not "owe their origin" to the photographer. And to my eyes, the things that Fairey copied are precisely those, unprotected elements of the photo. He didn't take the background, and he didn't take the lighting -- those are the things he changed. What he took was Obama's face, and the tilt of his head -- not infringement, to my eyes.

The court may not see it this way -- they've never had to consider the question of what parts of a photograph are copyrightable. They could decide that not protecting everything in a photograph would have a lasting detrimental effect on the photography market.

And so we come to factor one, which asks what you do with the copyrighted work. What uses are allowed? In Toward a Fair Use Standard, his oft-quoted piece published in the Harvard Law Review in 1991, Judge Pierre N. Leval wrote,  "If... the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."

The law term for this is "transformative." The question of whether or not the Hope poster is transformative will likely be the deciding factor in the case.

To answer this question, let's look at two cases, both involving an artist by the name of Jeff Koons, whose early work included a piece called "Three Ball 50/50 Tank," which consisted of three basketballs floating in a tank of water.

In the late eighties, Koons found a postcard with a black-and-white photograph by a photographer named Art Rogers.  The photo, called "Puppies," depicted an elderly couple sitting on a park bench holding in their laps eight puppies.

 

Koons removed the copyright label from the postcard and sent it to an assistant with instructions to make a sculpture based on the photo: copy everything exactly, only put flowers in the couple's hair, and make the puppies blue. Koons sold three copies of the sculpture for a total of $367,000. Rogers sued Koons for copyright infringement.

Koons lost the case. The court ruled that there was a "substantial similarity" between the two pieces that anyone could notice. Koons had argued that his work was a parody of Rogers' photo, but the court rejected this argument, saying there's no point in parodying a photo that no one's heard of, and that if the intention was to parody that type of photo, he could have done so without copying it exactly.

Doesn't this decision spell doom for Fairey? Doesn't it establish the precedent that you can't turn one form of art into another and claim it's transformative? I put this question to David Post, who responded via e-mail:

I think one can say that Koons did not have a "transformative purpose" because he was, basically, producing something with the same (aesthetic) purpose as plaintiff. Fairey, though, has a better argument - he's taken something created for one purpose (news reporting) and entirely repurposed it for another purpose (political activism) -- much stronger, in my view.

When it comes to fair use, intention counts for a lot.

Koons lost a couple of other lawsuits in the '90s, but he never gave up trying to hit that fair use sweet spot. In 2000, he had made a collage called Niagra, which showed four pairs of women's legs floating over Niagra Falls, along with some cookies, donuts, and other delicious treats. One of the pairs of legs was from a fashion photograph by Andrea Blanch that appeared in Allure magazine. Blanch sued Koons.

This time, Koons finally won. The court ruled:

Koons does not argue that his use was transformative solely because Blanch's work is a photograph and his is a painting, or because Blanch's photograph is in a fashion magazine and his painting is displayed in museums. He would have been ill advised to do otherwise. We have declined to find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work... But Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it.

That is, the intentions were different. Blanch's intention was to show off a nice looking shoe, while Koons' intention was to make some sort of statement about something.

Which is why Shepard Fairey will almost surely win this case. As Post says, Fairey's intention was to promote Barack Obama as a candidate, and to inspire people into getting involved. Garcia's intention was show Obama at a news event.  A news story about Obama wouldn't be accompanied by the Hope poster- it wouldn't be objective. The two images aren't competing in the same market.

Since there's no real precedent for an artist "Warholizing" (to borrow Tim Wu's term), a lot is riding on this case. The decision will affect art for generations to come.

Much of art today relies heavily on borrowing from other works. In his dissent in White v. Samsung, Judge Alex Kosinski wrote:

Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.

Let's hope the court agrees.