http://www.myartspace.com/blog/2009/03/my-response-to-shepard-fairey.html

“58. Fairey could have selected from any one of countless images of
President Obama in making his posters and other merchandise, or simply drawn him from life or taken his own photograph to use for his posters and other merchandise. Instead, Fairey was drawn to the unique qualities of this particular photograph, made distinctive by Mr. Garcia’s creative and artistic input, including (1) his deliberate selection of a specific moment in time to capture President Obama’s expression; (2) his choice in using a particular type of lens and light for optimal impact; and (3) his careful and unique – 13 – composition of the photograph. These facts, combined with Mr. Garcia’s experience, skill and judgment, resulted in the creation of a distinctive image of a unique moment and expression of President Obama.
59. The Infringing Works do not alter any of the distinctive characteristics that make the Obama Photo so striking — from the selection of subject matter, to the composition, to the exacting details of the photo. All the recognizable elements remain completely and unmistakably intact in the Infringing Works, including the angle and slant of President Obama’s head, and his gaze and expression; the contrast, focus, and depth of field of the photograph; as well as the shadow lines created by the lighting in the original photo. Fairey even used the red, white and blue flag imagery that Mr. Garcia worked to capture in the background of The AP’s photo.”

For me – this is the heart and soul of their argument. I’ve heard many people say the photograph is generic, just one of many of Obama. But I have to disagree – Fairey, as an artist, saw the unique artistic merit in the photograph. That’s why he not only used it, but all but duplicated it. And besides – I thought the idea wasn’t to qualify art, but rather to protect artistic expression. If it was an individual trying to protect their assets, rather than a big company like AP, people wouldn’t be giving Fairey so much breadth. According to the claim, Fairey profits from the reproduction and distribution of the infringing works have exceeded $400,000. He sells a hoodie w/ the Obama image for $60.00 on his website. I just cannot see Fair Use in this case. WHY OH WHY is the Fair Use Project helping Fairey???!!!

“The Copyright Act of 1976 protects published works that are “fixed” – I wonder if by publishing something on the Internet in a form that is inherently not fixed, does this negate copyright protection?”

Unfortunately this argument is essentially foreclosed by precedent which establishes that even a copy held ephemerally in RAM for the purposes of making a machine function is “fixation” for the purposes of the statute. (MAI Systems Corp v. Peak Computer, Inc. from the 9th Circuit most clearly).

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sandy

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Yes, something about the rule of law seems to be important.

Might be nice if a copyright lawyer would explain transformative use to these amateur experts, that changing every pixel is not a transformative get out of jail card, (all but mechanical copying changes every pixel or sound byte) rather than pontificating on issues out of his area of expertise.