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"I think unless you?re modifying it and making it your own, you?re on very tenuous ground"

By Intellectual Property Law, Esq.

Jim Johnson, who, when he first heard about Shepard Fairey's copyright dispute with the AP, said "it seems to me that AP ... has a loser on its hands legally," is having some second thoughts:

"I am given some pause though, by this remark from a recent interview with graphics guru Milton Glaser: 'For myself?this is subjective?I find the relationship between Fairey's work and his sources discomforting. Nothing substantial has been added. . . . I think unless you?re modifying it and making it your own, you?re on very tenuous ground.' If AP were to call Glaser to testify as an expert witness, old Shepard might have a tough go defending his claim to have creatively transformed Mannie Garcia's photograph of Obama."

This relates to a question I've been meaning to put to those who believe Fairey's was a fair use because of its "transformative purpose": would the argument work in the other direction? That is, assume a well-known photographer creates an image the purpose of which is to move people, express some idea, touch our souls. Now along comes a crass commercial artist who makes modest changes to the image along the lines of what Fairey did here, and then starts mass producing and selling posters of it. Now we have a totally different purpose -- to make boatloads of money. Fair use? Or is "transformation" a one-way street?

Full post as published by The Art Law Blog on February 17, 2009 (boomark / email).