The many ‘faces’ of fair use

Taking the whole ‘art’ theme a little further, in this post we shall be looking at *drumroll please* photographs that are turned into art pieces and more specifically, photographs of celebrities. No, I won’t be including new age concepts such as ‘Instagram portrait art’ just yet. Am I doing this whole foreshadowing thing? Maybe! Also, fair warning — this post is slightly long.

Some basics to keep in mind — the intellectual property protection evoked for photographs is that of Copyright, since photographs fall under the category of artistic works/visual artworks and involve creativity and expression. The Circular for Copyright Registration for Photographs (for the USA) provides that this copyright is essentially on photographer’s artistic choice — selection of subject matter, the position of the subject, the selection of camera lens, placement of the camera, the angle, lighting and timing of the image and the same flows from the case of Rogers v. Koons — a summary of which can be found here. The Indian Copyright Act, 1957 under section 2(c) also provides for the protection of photographs as artistic works and the term for such protection of copyright is now a lifetime of the author plus 60 years which flows from section 22 (subsequent to the 2012 Amendment to the Copyright Act).

Colours of Hope

Let’s look at art made from portrait photographs or if that term is not to your liking, headshots/press photo-ops. In 2009, an artist by the name of Shepard Fairey, an ardent supporter of then Senator (but not yet President Obama) decided to show his support to the presidential campaign by creating a poster. Personally, I’ve never actually seen a political poster blow up to this extent — so much so that it still inspires similar art. I speak of the iconic red, white and blue poster of Obama with the title of ‘Hope’. There are other versions of this poster that feature terms such as ‘Change’ and ‘Progress’ but my guess is that you know what I am talking about, by now. The artist, Shepard Fairey was embroiled in a dispute concerning copyright infringement.

I won’t go over all the facts of the case because it’s plain, simple, boring (read that in Amy Santiago’s voice?) But to establish a timeline and how copyright infringement came into being, here’re are some important things — the photograph from where Mr. Fairey drew (get it? No?) inspiration was taken by Mannie Garcia, a freelance photographer who at the time was engaged by Associated Press. The picture in question was one of several taken during a press event covering George Clooney’s trip to Africa. Garcia, did use his own skills to manage to take a portrait photograph of sorts — a clean headshot, despite several panellists and to capture the personality and essence of Obama. He also retouched the picture with specific edits — ‘he “cropped” it (specifically, by removing “a little bit of the . . . shoulder and some of the stars at the top”); he “resized” it; he did a “little bit [of] color adjusting” in order to “make sure . . . that the color was representative of what the person . . . looked like”; and he added a caption’. This picture taken was then circulated to 3500 newspapers and organizations that subscribe to Associated Press’s PhotoStream service. Shepard Fairey found this picture on the internet, which he at the time believed to be a cropped version of a larger picture having all panelists and sought to make an art piece/poster that was a classic political portrait and that would deracialize Obama using the colour palette of red, white and blue that was patriotic. Only a small percentage of artwork created was sold and the remaining were distributed at campaign events or donated to campaign workers. But a significant amount of money was made in royalties when the posters were used in relation to apparel.

Considering this background, Associated Press first demanded a share of the revenue from all of Fairey’s earnings and this inevitably led to a litigation before the court, with the claim of copyright infringement. The trifecta of requirements that the plaintiff (the person suing for copyright infringement) must fulfil are — to prove that there is valid copyright over the work, that the work was actually copied and such copying leads to unlawful and improper appropriation. In this case, Fairey did acknowledge that the subject matter was copyrightable but contested the originality of the photograph. Additionally, Fairey argued that even if the copyright in said work was upheld, he was entitled to the defence of fair use. Fair use is often relied on copyright infringement cases to indicate that the alleged infringing work does not take away from the copyright of the original work. The Indian courts actually list out specific circumstances that qualify as fair use/dealing such as use of copyrighted material in the course of teaching, non-commercial use in a residential premises, etc. The US courts, however, rely on judicial precedents and a non-exhaustive list of factors to ascertain fair use, which are embodied in section 107 which are — the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the work and the effect of use on the potential market. While this dispute was making significant headway and would have translated into an effective precedent for similar disputes, both parties in 2011 decided to settle and the Do you think there was copyright infringement in this case? If you would like to delve deeper, a good place to begin is here.

Princely State of Affairs

Speaking of art-pieces made from Portraits/photographs, the Second District Court of New York did actually provide substantial ruling as recent as March 2021. The case I refer to is that of Andy Warhol Foundation for Visual Arts Inc. v. Goldsmith where a photograph of the singer/performer Prince and art created from said photograph was in question. The art style in question was that of ‘Silkscreen prints’ and boy, this case does have some his-story.

In 1981, when Prince was still a relatively new artist, Lynn Goldsmith was hired by Newsweek to take pictures of the artist Prince Rogers Nelson (popularly known as Prince). Of the several pictures from the photoshoot, there was one particular one where he has a serious gaze and is wearing suspenders. The pleadings also indicate that Goldsmith “adjusted the lighting to showcase his chiselled bone structure” and also applied “additional makeup including eyeshadow and lip gloss to build rapport with the artist and accentuate his sensuality”. There were 23 photographs taken that day, some in colour and some in black white. Subsequently, in 1984, one black and white photograph from the 23 taken was licensed to Vanity Fair Magazine for use as artist reference. The terms of said license permitted Vanity Fair to use the photograph “once as a full page and once as a quarter-page” and additionally that the illustration have a specific attribution to Goldsmith. Vanity Fair magazine enlisted the services of the artist, Andy Warhol, to make an art piece and the same was utilized in the November 1984 issue, with proper crediting.

However, unknown to Goldsmith, Warhol created 15 additional works from the photograph (titled Prince Series) and the custody of these transferred to Andy Warhol Foundation after the death of Warhol. These images are till date licenses for editorial, commercial and museum usage.

Trouble in paradise arose after the death of Prince, when Vanity Fair’s parent company Condé Nast contacted Andy Warhol Foundation and wanted to do a tribute piece. After discovering that there were more works, an exclusive license was obtained for three months. The tribute magazine was published in May 2016 (and this use did not give any credit/attribution to Goldsmith for the image). It was here that Goldsmith became aware of the whole series, not just that one time use allowed. Obviously what followed was a suit for copyright infringement. The defence relied on Andy Warhol Foundation was that of Fair use and on July 1, 2019, the District Court granted a summary judgement in favour of Andy Warhol on fair use. The judgement can be found here. The observations of the district court, against the four factors of fair use, were as follows:

1) the Prince Series was “transformative” because, while the Goldsmith Photograph portrays Prince as “not a comfortable person” and a “vulnerable human being,” the Prince Series portrays Prince as an “iconic, larger-than-life figure,”

(2) although the Goldsmith Photograph is both creative and unpublished, which would traditionally weigh in Goldsmith’s favor, this was “of limited importance because the Prince Series works are transformative works,”

(3) in creating the Prince Series, Warhol “removed nearly all [of] the [Goldsmith] Photograph’s protectable elements,”

(4) the Prince Series works “are not market substitutes that have harmed — or have the potential to harm — Goldsmith,

The decision was however appealed before the Second Circuit and the present verdict (the one from 2021) overruled the observations of the district court. The short version of reasoning is that the ruling of 2019 focused more on what was intended of the artwork and the photograph rather than the actuality of the works while determining fair use. In essence, the Prince Series was held to be transformative because “Warhol’s series displays the musician as an iconic, larger than life figure, in a style recognizable as a Warhol” whereas Goldsmith’s photograph shows Prince as a “vulnerable human being” and “not a comfortable person” and because Warhol removed all protectable elements of Goldsmith’s Photograph. The Second Circuit Court, did not explicitly rule that the Prince series was infringing on Goldsmith’s copyright over the photograph but it did hold that use by Andy Warhol was not fair use and that the Prince Series was substantially similar to the Goldsmith Photograph. Taking into account all precedents on fair use, the court observed that they were valid, considering the facts and circumstances of each case but followed one universal rule — “if the new work does not comment on, relate back to or use the use the original borrowed work for a new purpose — then the mere reliance on it having a “different artistic use” is not sufficient to qualify the work as transformative. For the work to be transformative, it is necessary that the work embodies an entirely distinct artistic purpose through a meaning/message that is separate from the source material.” Each of the four factors for fair use was examined and it was upheld that the differences were not substantial enough for there to be transformation and hence, fair use.

This judgement most certainly is a blow to pop art, since works of artists would now be subject to this precedent and standard of scrutiny. That said, if an artist must continue to utilize real-life photographs/portraits, it might be favourable to draw from multiple points of reference rather than one and additionally, it would always be safer to remove protectable elements of the original work in making the new/borrowed work. Industry experts are of the view that given the high stakes involved, the Prince dispute might just be escalated to the Supreme Court. However, until then, the second circuit decision must be taken as good (and most recent) authority. Both the Obama Hope case and the Prince series, are adequate examples to indicate that artists must exercise caution in taking ‘inspiration’ and how utilizing skills and creativity is not always sufficient to classify the work as fair use and not be liable for copyright infringement.

Just your friendly neighborhood IP enthu cutlet, who's probably lurking or reading or up to no good.