Susan M. Kornfield, J.D.skornfield@bodmanllp.com

My post about Mr. Obama’s face and the copyright dispute between the Associated Press and artist Shepard Fairey has generated some great discussions off line. Here is a more detailed explanation for my position.About 125 years ago, the U.S. Supreme Court looked at the photograph, below, and explained why the photograph was protected by copyright law:

To justify its conclusion, the Court had to identify the “authorship” choices embodied in the photograph. The Court specified the following:

• A useful, new, harmonious, characteristic, and graceful picture
• Made by the photography entirely from his own original mental conception
• Posing Oscar Wilde in front of the camera
• Selecting and arranging the costume, draperies, and other various accessories
• Arranging Oscar Wilde so as to present graceful outlines
• Arranging and disposing the light and shade
• Suggesting and evoking the desired expression

“and from such disposition, arrangement, or representation, made entirely by [the photographer] he produced the picture in suit. These findings, we think, show this photograph to be an original work of art.”Now, compare this to the photo snapped by Manny Garcia (agent for the Associated Press) at a press conference. The requisite elements of “authorship” are not present in the AP photograph. It is a terrific photo, to be sure. Because the subject, Mr. Obama, has a great face with a great expression at that moment. I haven’t heard Mr. Garcia assert that he “evoked” that expression. Captured it? Yes. Evoked it — no. I haven’t heard him assert that he arranged props, or the light and shade, or that it was created entirely from his mental conception. So I learned yesterday that Mr. Fairey has filed a lawsuit against the AP, seeking to have a federal court declare that is not infringing the copyright of the AP. I hope the court asks the deeper question — just what copyright does the AP hold in that photograph that was copied by an artist using the same individual as the subject of the artwork?There are many interesting discussions about this topic, most of them making excellent fair use arguments (which should clearly succeed if a court found that the photo is copyrightable, the AP actually owns the copyright (Mr. Garcia says he was a freelancer and did not transfer his rights to the AP), and Mr. Fairey acutally copied authorship from the photo). I just want us to start out with a strong legal framework, asking first questions first: what is ownable, who owns it, was the copyright registered, and was actual authorship copied? Only then do we get to “was the copying lawful?”

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