MELISSA BLOCK, host:
No doubt you've seen the image on posters or T-shirts. It's been everywhere. A stylized image of Barack Obama shaded in red and blue. His eyes looking up to a distant point, the word hope or progress printed beneath. Well, that image by the graphic artist Shepard Fairey was taken from an Associated Press photograph without permission. And now, the A.P. wants credit and compensation. The A.P. says it's reached out to Shepard Fairey's attorney and hopes for an amicable solution. Fairey's attorney says the work is protected by fair use.
Now, we're going to get some guidance now from Margaret Esquenet, a lawyer who specializes in intellectual property issues. Welcome back to the program.
Ms. MARGARET ESQUENET (Attorney): Thank you, Melissa. It's good to be back.
BLOCK: We should say that Shepard Fairey acknowledges that his work is taken from an A.P. photograph taken back in 2006 that he found searching through Google. Let's listen to what he told NPR's Alex Cohen about how he chose it. This is from an interview last August.
Mr. SHEPARD FAIREY (Artist): I searched through hundreds of photographs of Obama before I decided I'd found the right one to be the point of departure for my illustration.
BLOCK: And, Margaret Esquenet, I think the key words in that quote there might be point of departure.
Ms. ESQUENET: I think you're right. The point of departure brings up the fair use defense, which is a statutory defense for copyright infringement. And the fair use defense, as I mentioned, is statutory and it has four factors. The first is whether the work was used commercially or if it's not for profit, that is the allegedly infringing work, and whether it's transformative. Did it do something different to the original that makes it substantially different from it?
The second is whether the original work was factual or creative. The third is how much of the original work was taken, both qualitative and quantitative. And the fourth is the financial impact of the existence of the allegedly infringing work on the original work.
BLOCK: Well, let's take a couple of these. Was the original work factual or creative? This was a photograph taken at a news conference at the National Press Club about Darfur.
Ms. ESQUENET: I think that the artist here would have a good argument that the photograph is factual. It's of a real person at a real event in a news context. It doesn't appear that the photographer spent time posing, or arranging the lighting, or arranging the background, that sort of thing that would give it the creative elements that you'd normally see for a photograph.
BLOCK: And the commercial question gets a little thorny, I think, because the artist, Shepard Fairey, has said, at least last year he said, he had not made a dime off of Barack Obama. But this image is everywhere. It's on his Web site, on posters for sale. They're now out of stock. I have it right here on the cover of Esquire magazine attributed to Shepard Fairey.
Ms. ESQUENET: The issue is, what is the financial impact on the original? So, I think what we're going to be looking at is, does the fact that Esquire chooses to use Shepard Fairey's image impact their decision not to use the image that A.P. took? In other words, is it a substitute for the original image? And what kind of economic impact did that have on A.P. that this new image exists?
BLOCK: But it's not as simple, it sounds like, as the Associated Press saying, Shepard Fairey, looks like you're making a whole lot of money off of an image that a photographer took for us. We get a cut of that.
Ms. ESQUENET: That's definitely a part of that analysis, but it's a little bit more than that, because this isn't a copy. This isn't, hey, you took exactly our photograph unlicensed. This is not on exactly that track. And because of that, you're going to need to be a little bit more nuanced in the way you evaluate the economic impact.
BLOCK: When the Associated Press says it's hoping here for an amicable solution, Margaret, can you imagine what that amicable solution would be?
Ms. ESQUENET: I think a reasonable solution would be to ensure that the A.P. gets credit every time this is used. So, for example, on your Esquire magazine, it would credit both the artist, as well as A.P., because they created the original photograph.
BLOCK: And in terms of A.P. getting some money off of this, though, you'd think maybe not?
Ms. ESQUENET: It's so difficult. There are so many factors that go into the money issue, not only how much money has the artist made, but whether the A.P. has lost any sales, whether the work was registered prior to the infringement. So, there are really too many variables on the money issue to be able to predict that with any accuracy.
BLOCK: Sounds like it could be keeping lawyers busy for a long time.
Ms. ESQUENET: Well, I wouldn't be surprised if they settled on this quickly. I'm not sure that there's a lot to be gained by dragging this particular case out. And it does sound like they're talking to each other. I wouldn't be surprised if you saw a resolution to this one pretty quickly.
BLOCK: Margaret Esquenet, thanks for coming in.
Ms. ESQUENET: Thank you.
BLOCK: Margaret Esquenet is with the law firm Finnegan Henderson here in Washington. By the way, the photographer who took the picture for the Associated Press, his name is Mannie Garcia.
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