When Shepard Fairey (“Fairey”) first sought a Declaratory Judgment against The Associated Press (“AP”) regarding Fairey’s use of an AP photograph, the Fair Use Project at the Stanford Law School Center for Internet and Society took the case representing Fairey. The heart of the case was whether Fairey’s use of the AP photograph fell within the “fair use” exception of the copyright law, insulating Fairey from a possible copyright infringement claim brought by AP.
The purpose of copyright law is to spur innovation and creativity by granting some protection to a creator’s works thereby giving the creator an incentive to create. Because copyright law restricts the free speech rights of others, the “fair use” exception provides balance by allowing others some access to copyrighted works so that they may create new works based upon them. As conveyed by Justice Story, “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Simply put, innovation is the building upon the foundation laid by those before us.
Fairey’s case appeared to be a good test to clarify “fair use” doctrine at a time in which digital technologies have proliferated the creation of transformative works. Fairey used an AP photograph as the foundation for a graphic of Barak Obama that Fairey used in a series of posters. Fairey’s use appeared capable of passing the courts’ implementation of the “” evaluation (purpose and character of use, nature of copyrighted work, amount and substantiality of use, and effect of use on potential market) because the highly transformative nature of Fairey’s work might have propelled it beyond reach of the other factors. Unfortunately, the case was tarnished by Fairey’s actions resulting in the withdrawal of Fairey’s attorneys and the suggestion by the judge hearing the case for the parties to settle. This does not bode well for Fairey’s case.
So what went wrong?
Fairey originally claimed that he used an AP photo containing images of both George Clooney and Barack Obama as a reference in creating Fairey’s artwork and specifically denied using an AP photo of Obama alone (the “Obama photo”). However, Fairey later claimed that there was some confusion over which photo was used and that he actually did use the “Obama photo”. The photo used was relevant because, in general, the less one uses of a copyrighted work, the better the case is for “fair use.” If Fairey used the photo of Clooney and Obama, the amount of the copyrighted work used (roughly half) would have been less than had Fairey used the entire “Obama” photo as the reference. However, even the complete usage of a copyrighted work does not necessarily preclude “fair use” so while using a different photograph might have helped the case, Fairey’s usage may have still been ruled “fair use” nonetheless. That was before Fairey’s next move.
Rather than informing his attorneys of the error, Fairey attempted to cover it up by erasing the computer files that were used to make the graphic from the “Obama photo.” Fairey went so far as to create new documents using the AP photograph of Clooney and Obama in order to support his claim of using that photograph. Destruction of evidence and deceit does not bode well when defending a “fair use” claim and it is arguably what may decide this case.
This is because the Supreme Court has stated:
Also relevant to the “character” of the use is “the propriety of the defendant’s conduct.” “Fair use presupposes ‘good faith’ and ‘fair dealing.’”
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985) (quoting 3 Nimmer on Copyright § 13.05[A], at 13-72 and Time, Inc. v. Bernard Geis Associates, 293 F. Supp 130, 146 (S.D.N.Y. 1968)).
So what exactly is good faith? As my contracts professor once said, good faith is not defined so much as what it is but rather what it is not. That is, good faith is the absence of bad faith.
Despite the Supreme Court’s affirmation of the relevance of good faith in “fair use” evaluations, the courts have not agreed upon how much weight it should be given. In the case cited by the Supreme Court in its affirmation, the Southern District of New York Court ruled that the defendant’s use was “fair use” because the “fair use” was strong enough to discount the defendant’s bad faith in appropriating the materials (which could have been appropriated by other means). Time, Inc. v. Bernard Geis Assoc., 293 F. Supp. 130 (S.D.N.Y. 1968). The Supreme Court, in its own case at hand, ruled against the defendant, in part, because the defendant was trying to “scoop” the story out from under the plaintiff who had legitimately licensed the story. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
More recently, the Second Circuit ruled in favor of a defendant despite the defendant’s bad faith in obtaining the material in an unauthorized manner, stating that “a finding of bad faith is not to be weighed very heavily . . . and cannot be made central to fair use analysis.” NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2nd Cir. 2004). The Second Circuit then stated that it awaits clearer guidance from the Supreme Court. Id. In another case, the District Court of Nevada contrasted the bad faith of the plaintiff with the defendant’s good faith stating that it added further weight in ruling for defendant’s fair use. Field v. Google, Inc., 412 F. Supp. 2d 1106, 1123 (D. Nev. 2006).
Although the impact of good faith may not be predictable in Fairey’s case, keep in mind that the good faith discussions in most of the above cases have been centered on the acquisition of the material. Fairey’s destruction of evidence and deceit are of a different type entirely and may prove to be the deciding factor.