After almost four years of deliberations and legal maneuvering, Shepard Fairey and AP agreed on a settlement. While I’m not generally pro-litigation, this was one of those rare occasions when the law would have benefited from a trial. What the settlement means is that, once again, the courts were not forced to rule on what is meant by “transformative use,” which was introduced—but left largely undefined—in 2003. Instead, the courts left it in the hands of the litigants to scratch out a backroom deal. They missed an opportunity to expand the doctrine of fair use, which protects our constitutional notion of a commonwealth of ideas and the progress of science and the arts, and we, as a society, poorer for it.
Unfortunately, Fairey made a critical misstep and misrepresented his source material, and as a result, we have a settlement rather than a decision. Those of us who think that conglomerates are essentially having their way with copyright law—specifically in the form of a bogglingly long copyright term that is crippling our artistic, intellectual and cultural progress—will have to wait. And probably wait and wait and wait. And while we wait, our creative commons will continue to be owned and controlled by companies like Disney, Warner Bros. and AP.
It’s not that I don’t see where the original AP photograph “inspired” Fairey’s work; I do. But do I think that Fairey’s work is merely derivative, or a slavish copy? I do not. I took the time to go see the actual work in the National Portrait Gallery. It is a complex and rich canvas with incredible artistic detail. Fairey’s work clearly supersedes what is, when boiled down, a routine journalistic photograph. Ask yourself how many photographs, particularly of public figures, you have seen like this one? Is this photograph, more or less, a “scene a faire” at this point? I would argue that it is.
Allowing this case to be settled privately prevents the judiciary from continuing the discourse between lawmaker and the judges who interpret those laws. (See “Separate but equal,” “Don’t ask, don’t tell.”) And it’s not just for important civil liberties. I’m not suggesting that copyright law is as important as constitutional law, the Founding Fathers insisted that it was, which is why they inserted it directly into the Constitution itself. Article 1 (Article one!), Section 8:
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.
Without this commonwealth of ideas—both the incentive to create and the public benefit of building on those ideas—essentially all progress comes to a complete standstill.
But over the last, oh, 83 years or so, copyright law has gotten sick. I say 83 years because the problem originated that long ago in the form of a little mouse wearing black lederhosen. I’m talking about Steamboat Willie, of course. (You may know him better as the predecessor of modern day Mickey Mouse.) Since the invention of Steamboat Willie, conglomerates have more or less had their way with lawmakers over the protection granted to artistic “authors.” Protection at the time of the Founding Fathers: 14 years (with another 14 years if you filed to renew). Nowadays: life of the author plus 70 years. There’s a reason the Sonny Bono Copyright Term Extension Act is also called the “Steamboat Willie Act.”
Which brings us back to Shepard Fairey. In a critical case decided in 2003 by the seriously influential 9th Circuit, the court finally fought back against corporate control of all things copyright, by introducing a concept called “transformative use.” It wasn’t really a new concept, per se, but a clarification of a copyright law term: derivative. It was the court doing its job and balancing out the lawmakers. Essentially, transformative use means that the second work supersedes the original work, as opposed to being merely “derivative.” It adds something—something beneficial to the public.
Alas, while this case looked like a major step forward for copyright law and for creative authors, we seem to be back at square one. We finally had the attention of the nation and the opportunity passed with no impact on this critical but poorly defined area of the law.