TERRY GROSS, host:

We've spent today's show talking about the legal dispute over Shepherd Fairey's famous poster of Obama with the word "Hope" at the bottom. What are the implications for the rest of us? To find out, we invited Greg Lastowka, a professor at Rutger's School of Law at Camden who is an expert in intellectual property. He's currently a visiting professor at Columbia University.

Fairey filed a preemptive law suit against the Associated Press claiming that under the fair use section of the copyright law he has the right to use and transform Mannie Garcia's photo of Obama.

Greg Lastowka, welcome to Fresh Air. Right now, looking at the law, give us the simple layman's version of what determines fair use, what your rights are for fair use.

Professor GREG LASTOWKA (Rutgers School of Law-Camden; Visiting Professor, Columbia University): Well, there are two important Supreme Court opinions on fair use. And I think what's most interesting about these two opinions is that in each step of the proceedings, they went different ways. So the first important case is Harper & Row, which is a 1985 case, where President Ford had unpublished memoirs. And the Nation scooped Time magazine by publishing about 300 words verbatim out of those memoirs. And Harper & Row, the publisher of the memoirs, sued the Nation and said this was an infringement.

So the district court level said that the Nation had infringed the copyright. The appellate court said this was fair use, it was news reporting, it was politically significant. And the Supreme Court reversed again and said that that was not fair use.

The other case is Campbell versus Acuff-Rose, where the rap group 2 Live Crew made their own version of Roy Orbinson's song, "Pretty Woman." They had asked for permission from Acuff-Rose who controlled the rights for the song, and Acuff-Rose refused permission, but they went ahead anyway and released the song. In that case, the district court thought it was fair use. The appellate court reversed and said there was no fair use. And the Supreme Court reversed again and said there was fair use. So, these are the two seminal court cases on fair use, and each step in the proceedings we have a decision one way and then flips the other way.

GROSS: So what are the principles that you're supposed to use for determining whether you can use fair use to cover your appropriation of something?

Prof. LASTOWKA: Well, before 1976, this was a matter of judicial common law doctrine. So the judges had interpreted fair use looking at a variety of factors, but in 1976, there was actually an addition to the statute that had four particular factors that courts were supposed to consider when looking at fair use. So the four factors are the purpose and character of the use, the nature of copyrighted work, the amount and substantiality of the portion used, and the effect upon the market.

So, the nature of the copyrighted work looks at whether or not the work that is allegedly infringed is a work of artistic expression or factual work. I think in this case it's photojournalism, which leans more towards factual than pure creativity. So that's a factor that probably would favor Fairey.

The third factor, the amount used, is an interesting factor because it's not necessarily looking only at how much of the copyrighted work is being used. It's also looking at how important that if it is used is to the meaning of the work. So, for instance, in the case involving President Ford's memoirs, only 300 words were used out of 200,000 in the memoirs, but the Supreme Court found that that had kind of taken the heart out of the memoirs, and that was so important that the court found that this was a substantial amount being copied.

The other two factors are more problematic in understanding. The last one is the effect upon the market. So the question there is essentially, is the owner of the copyright being harmed by the defendant's use? So, what you'd look at in that case is, is this a use that would be normally licensed by the owner of the copyright? And part of that license might be a license to create derivative work. So if you own, you know, a copyright in a book, and someone wants to make a play or a movie based on the book, you could allege that you want to be able to control that market for that kind of derivative use, and you could find harm based upon your inability to license that use.

So in this case, the AP does license its photos for use in derivative works, for, you know, tansformative uses. So potentially, the AP could claim that it was harmed on that factor.

GROSS: Can you sum up for us some of the things that you think legally will work in favor of Shepherd Fairey and some of the things that you think will work against him?

Prof. LASTOWKA: Sure. One of Fairey's claims is that with regard to the first factor in fair use - the purpose and the character of the use - he is making use of the photograph in a way that is transformative, that transforms the nature of the work, right? So he's transformed it into a kind of bold, political statement, you know, a poster, rather than news reporting. So that is a key factor in fair use today, and that could potentially count in Fairey's favor.

The other question, you know, a key question in fair use cases is whether or not the use is commercial or non-commercial. Fairey says that he took the profits from the sales of the poster and put them back into making more posters. That's really interesting. I think, you know, it could be read as a non-commercial use, but of course, he sold a lot of those posters, and it was his decision to put the profits back into making more posters and giving them away, so I'm not sure if that actually cuts in favor of commercial or non- commercial.

One thing that's really important about fair use, they need to understand, is the Supreme Court has said that each fair use case needs to be decided individually, and there are no bright-line rules. And that's one of the things that's most frustrating about fair use because if you look at these four factors for fair use, none of them are strictly controlling, and you can find a case that has, you know, one of these factors going one way or the other and a finding of fair use or no fair use.

In fact, the two Supreme Court cases that are on point, the Harper & Row case and the Campbell case, are really interesting because in the Harper & Row case, you would think that borrowing such a small portion of these memoirs should count in favor of fair use, but there is a finding of no fair use. You would think in the Campbell case the fact the 2 Live Crew was actually selling a song that's based upon Roy Orbison's "Pretty Woman" in a kind of direct way should count against finding a fair use, but actually, the court in that case says it's a commercial use but it's protected by fair use. So it's really hard to establish that any particular use is going to be fair or not fair until you actually get the decision.

GROSS: You've made the point that in a lot of ways most of us are on both sides of this fair use question, that we both appropriate content and reproduce content that can be appropriated.

Prof. ASTOWKA: Right.

GROSS: Can you describe what you're talking about?

Prof. LASTOWKA: Sure. For instance, a lot of people are posting videos on YouTube now, and occasionally you post a video, and they'll be some kind of copyrighted content within the video. Maybe there is an image in the background of the video or there is a song playing in the background of the video, and it's your original video, but there is copyright interest implicated in the video, and you want to be able to post that online.

Well, in that case, you're both an original creator of content and at the same time a potential infringer of content. And as more and more of us post video and do other forms of creative activity online, we all become potentially infringers and at the same time creators.

GROSS: You know, I thought it was interesting when Facebook decided that it was going to own the rights to all the photographs posted through Facebook. There was this huge uproar. Like nobody wanted their photographs to be owned by Facebook and to let Facebook do whatever it wanted to do with it, so Facebook had to back down from that. How do you see that or do you see that as relevant to this case?

Prof. LASTOWKA: I see it as very relevant because I think the reaction of the public to something like, you know, Facebook's changing the terms of service, the fear that someone else is going to be able to monetized the creative work that you're uploading to Facebook shows that we all feel like we are authors and proprietors of the content that we create. So, yeah, I think it's very relevant because it shows the public's reaction when their own authorial interests are at stake.

GROSS: Well, I guess, you'll be watching the outcome of this case with a lot of interest. I want to thank you for talking with us about it.

Prof. LASTOWKA: Thank you so much.

GROSS: Greg Lastowka is a professor at Rutgers School of Law at Camden. He's currently a visiting professor at Columbia University. You can download a podcast of today's show on our Web site, freshair.npr.org. We also have a link to our first interview with Shepherd Fairey, which was broadcast on Inauguration day in which he talked about creating his Obama posters. A retrospective of Fairey's work is currently on display at the Institute of Contemporary Art in Boston. I'm Terry Gross.

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