(This is the sixth in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)
This is a (second) unplanned additional post in my series on the copyright and litigation issues raised by the Obama “Hope” poster case. One of the key fights in the case is going to be over what, exactly, the relationship between the two images above is. Is it the use of a photograph for a transformative purpose, or is it merely plagiarism for commercial benefit?
One hint at how Fairey’s lawyers are going to argue this question is in the complaint‘s use of the phrase “used as a visual reference.” (Compl. ¶¶ 18, 34.) In a previous post, I expressed puzzlement at that phrase, which appeared to me to be just a way of obfuscating the creation process behind the poster. The AP’s lawyers may have been puzzled too, because they did not refer to the term at all in their lengthy counterclaims; instead, they simply referred to Fairey’s “copying.” (Answer ¶ 129.) But I’ve since come across an indication that “reference” may be a technical term in the art world, one that appears to mean the target of an intended visual allusion.
Assuming that’s what it means, I’ve got three quick comments on the use of the term “reference” in the complaint.
Here’s an explanation of “referencing,” which seems to be an integral part of “appropriation art,” from J O’Shea at the Supertouch blog (O’Shea is responding to this critique of Fairey by Mark Vallen, which I noted in previous posts):
[T]he concept of using reference images in the context of modern art seems to have eluded Vallen completely in regards to Fairey’s art. When he claims that Shepard strips away historical meaning and context in his artworks, he’s missing the entire point of referencing: By taking precisely the elements of an image that speak of its historical meaning and original context and incorporating them into a new image, an artist creates a visual comparison, juxtaposing new and old. Such a contrasting is inherent in the act of referencing, and the intended result is for viewers to consider the relationship of the two images and hopefully spark a dialogue: Are they really distinct, or just symbols of the same phenomenon? Is the artist saying the two images are similarly or differently relevant? Is the older image outdated and in need of an update, or is it a commentary on society’s perverse obsession with overhauling classic works? Does this new recontextualized image make me feel any differently than the old one did?
These are questions most people consider, usually subconsciously, when looking at images that employ references as visual cues. . . .
The complaint’s claim that Fairey used the Garcia photograph as a “visual reference” now seems a little clearer. My first reaction, however, is that the purposeful use of an art-world jargon term in the complaint without explanation (or even an indication that it has a technical meaning) still suggests to me an intent to be vague rather than clear about both the creation process and the nature of Fairey’s fair use argument, at least at this stage of the proceedings.
Second, and relatedly, even if the Garcia photo was “referenced,” we still don’t know how the Obama “Hope” poster was created—that is, whether or not the original photo was copied by hand or digitally copied and then edited. As I indicated in a prior post, that shouldn’t matter as a theoretical matter, but it might shape people’s reactions to the photo anyway.
Third, I’m not sure the Obama Hope poster “references” the Garcia photograph even in the technical sense. If I’m understanding “referencing” correctly, it should produce in the viewer, if not a specific memory of the original, at least some sense of the original. E.g., even if you’ve never seen the Yellowstone National Park stamp, Fairey’s “Welcome to Iraq” poster should at least evoke 1940s vacation posters. Does “Obama Hope” evoke news photographs? It doesn’t seem to me that the poster refers to the original in any way, either specifically or as an archetype. That is, given the lack of familiarity with the original photo, I don’t think the poster provokes any of the questions O’Shea lists above. Rather, it’s just a good image of Obama. AP’s counterclaims hammer home this point, although they don’t acknowledge quite as broad of a right to comment as I’m suggesting. This could nevertheless be a big problem for Fairey, one that I’ll discuss further when I get to the fair use issue.
Other posts in this series:
- Why did Fairey file in the Southern District of New York?
- Does AP actually own the copyright in the Garcia photo?
- Is Fairey’s suit doomed to fail before it even gets off the ground?
- What’s the “original” photo?
- What does the complaint say about the poster creation process?
- The AP Strikes Back
- What’s a “visual reference”? —This post
- What if anything is copyrightable about the photo? Does the poster infringe on that?
- Is the poster subject to a fair use defense?