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Introducing the Altlaw: The Shepard Fairey Obama "Hope" Poster Controversy


Wednesday, March 24, 2010

A couple of months ago, the copyright world was floored by the news that the new poster child for the fair-use movement, Shepard Fairey, had intentionally concealed evidence about which photograph he had relied upon in creating the famous Obama "Hope" Poster.  The New Yorker art critic Peter Schjeldahl praised the poster as "the most efficacious American political illustration since "Uncle Sam Wants You."  Now, reports have surfaced suggesting that Shepard Fairey is under grand jury investigation for his conduct. 

Though the merits of the copyright case have yet to be examined, Fairey has since apologized to the court and to the members of the public who supported him.  In addition, he appears to have acquired a new set of lawyers, from the Berkman Center at Harvard Law School, after his original lawyers withdrew upon learning of his deception. 

The court case came largely to a standstill after Fairey's initial admission, but whether the case goes forward or settles depends, in part, on whether the parties choose to argue about the merits of fair use, or simply to reach a financial settlement and move on. So it seems appropriate, now, to take a moment to consider what the case can teach us.

No case is ever perfect.  But there is something deeply symbolic about the fact that the image that captured an entire political generation--inspiring so many to move forward in sweeping Obama into office - has sparked one of the most controversial and high-profile copyright suits in recent history. 

From the beginning, the Fairey case has been about more than the unauthorized use of a photograph: It also personifies the problems with the doctrine of fair use, and the concomitant failures of the legal doctrine that courts have developed to surround and defend the doctrine's dwindling power. 

The Risk of Stagnating Fair Use

Countless commentators have decried the unpredictable nature of fair-use protections.  So, in one sense, Fairey's legal problems do not raise any fundamentally new questions.  But at the same time, his case is a reminder of a truth that is often forgotten: Fair use cases necessarily begin with the very kind of unauthorized uses that Fairey engaged in.  If no one were willing to engage in risky, unauthorized uses of intellectual property, then the law of fair use would be doomed to stagnate.

The easiest path for Fairey to have taken would have been to have sought the AP's permission to use its photograph as a model for his poster.  But if artists limited themselves to using images only when their uses were specifically pre-authorized by copyright owners, then countless artistic creations would never come into existence, and, even more significantly for future generations, the law of fair use would either cease to develop or, even worse, steadily erode.

Viewed in this light, unauthorized users are not necessarily thieves or "outlaws."  Those labels, as attractive as they are, are far too simplistic.  Although unauthorized uses start out shrouded in uncertainty, the unpredictable law of fair use might turn out to favor them in the end.  Thus, instead of reflexively classifying unauthorized users as "outlaws," we propose thinking of them as "altlaws," a category meant to capture the deep ambiguity, ex ante, of their unauthorized conduct.

From Civil Disobedience to Information Disobedience

In a now-classic Harvard Law Review Foreword entitled "Nomos and Narrative," the late Yale Law professor Robert Cover described the history of civil disobedience as part of a process of decentralized legal interpretation through which dissenting groups pursue their own ideal visions by structuring their lives around their own legal understandings. By choosing to honor their own commitment to an unofficial version of law, those who engage in civil disobedience remain true to their legal vision while communicating to those in officialdom a forceful message of dissent. Equally important, they force public officials to examine the strength of their own commitments to the official legal status quo--which some officials answered by embracing the protesters' legal interpretation.

Yet there is a difference between this scenario and situations like Fairey's:  Squatters or sit-in protesters frequently violate clearly-established legal norms regarding trespass.  In contrast, in an enormous number of copyright cases, it may be genuinely impossible to say, without litigation, whether the "fair user" is in fact an "outlaw." 

Although copyright owners are often eager to label all behavior that they do not specifically authorize as "illegal," and are often quick to refer to their adversaries as "outlaws" or "pirates," the murkiness of intellectual-property rights often makes it difficult--in the absence of protracted litigation--to determine conclusively that the behavior in question is actually contrary to the law.

Those who engage in intellectual-property disobedience are therefore often in a position to claim that their actions are perfectly lawful under the doctrine of fair use. As Robert Cover said, "The transformation of interpretation into legal meaning begins when someone accepts the demands of interpretation and, through the personal act of commitment, affirms the position taken."  Property altlaws play an essential role in this process of converting legal interpretation into legal meaning.

The Altlaw in Action

Fairey's case, we think, represents a powerful example of the altlaw in action.  In the context of tangible property, we have a decent idea of the boundaries of the owned object and the content of the legal rights conferred by ownership.  But in the context of intellectual property, as Mark Lemley has noted, the boundaries are not always so clear, and it is more difficult to tell whether a person is trespassing upon another's intellectual property.

There are several reasons for this. One stems from the intangible nature of intellectual property, which makes it difficult to identify the boundaries of the owned thing.  In addition, the dynamism and complexity of intellectual property law render its prescriptions less legible to ordinary actors, making it hard for them to tell the difference between legal and illegal conduct. Related to these points is another point:  The social and cultural norms that govern authorized uses can be murky, particularly in the areas of copyright and trademark.

Consider, for example, the number of times that many individuals have copied, shared, or distributed copyrighted music without acquiring permission to do so. Were these acts of sharing always illegal?  And, even if they were, were they clearly perceived to be illegal by the people engaging in them?

The defense of fair use shares all of the pathologies of murkiness and ill-definition typical of intellectual property law.  Instead of establishing clear rules regarding which uses of copyrighted material are permitted and which are not, the fair-use test sets forth a series of factors for courts to weigh in determining whether a particular use is lawful or infringing. Consequently, the fair-use test offers prospective users little guidance in determining how far they can go without crossing the boundary between lawful fair use and unlawful infringement. 

This is why Fairey's case is so important. Where social norms are undefined, the law has to do more of the heavy lifting in establishing the precise scope of property rights. For intellectual-property law, however, the work of formal legal definition has not (yet) been done comprehensively.

Given the ambiguity that pervades much of intellectual-property law, those making unauthorized uses of protected information, like Fairey, will often be able to make at least a colorable claim that they believed their activities were protected by fair use. Should the issue ultimately come before a court, a copyright user's argument will be that the law already allows his conduct -- rather than that a new legal rule should be created to protect or ratify (after the fact) the challenged behavior.

Put another way, copyright altlaws are more likely to be able to claim that their particular interpretation of the law is consistent with the "official" law as it already exists than are, say, those who engage in civil disobedience, who typically understand the official law to be against them, as much as they would like to see it change.

Despite this difference, the risks confronted by an altlaw are not necessarily very different from those confronted by the civilly-disobedient outlaw. The cost of vindicating uncertain fair use rights through litigation can easily eat through the net worth of even wealthy individuals, while barely making a dent in the litigation budget of large-scale intellectual-property owners. Without breaking a sweat, the recording industry, for example, can bring families to the verge of bankruptcy, putting enormous pressure on them to forfeit what might well be legitimate legal defenses in order to avoid the crippling cost of protracted litigation.

Given this risk, the expansive legal claims of intellectual-property owners tend to take on the force of law, even in the absence of an objective legal basis for those claims. From the point of view of the intellectual-property consumer or the small-scale creator, disobeying the commands of entrenched owners can feel just like (and have precisely the same consequences as) violating a clearly-established legal norm. 

Of course, in the intellectual-property context, there are obviously some legal rules whose boundaries are clear enough. Even in the uncertain domain of copyright, for example, a great deal of the music-file-sharing over peer-to-peer networks cannot now arguably be claimed as fair use. So there surely is such a thing as an intellectual-property "outlaw" or "pirate."  

But the domain of legal uncertainty is significantly larger in the intellectual-property context than it is for tangible property, and as a consequence, the greatest potentially creative disobedience (with "disobedience" here understood by reference to the desires of intellectual-property owners) has tended to arise in less determinate areas of intellectual-property law. 

In other words, the boundary between the altlaw and the outlaw can be an uncertain and porous one, as Shepard Fairey's case so clearly demonstrates.

The 2 Live Crew "Pretty Woman" Case:  An Instance of the Altlaw Triumphing

Consider a case that was handed down by the Supreme Court fifteen years ago, involving  a different group of renegade artists: the rap group 2 Live Crew, who parodied the iconic song from Roy Orbison, "Pretty Woman."  The rap group originally requested permission from Roy Orbison to satirize the song, even offering to pay a fee for permission.  But Orbison, through his agent, refused to grant permission, informing them, "I am aware of the success enjoyed by `The 2 Live Crews', but I must inform you that we cannot permit the use of a parody of `Oh, Pretty Woman.'  Undeterred, 2 Live Crew released the parody that same month, in a collection of songs entitled "As Clean As They Wanna Be."

Did 2 Live Crew think they might be breaking the law when they proceeded without Orbison's permission?  Yes.  And yet they won anyway. 

In a unanimous decision, the Supreme Court issued a powerful defense of the right of artists to appropriate--and parodize--original copyrighted works.  The Court observed that "parody has an obvious claim to transformative value [and] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works."  In making this observation, the Court established that parody can be protected by fair use, inspiring countless parodies since.  (One only has to imagine what YouTube might look like had this decision come out the other way).  In other words, had 2 Live Crew decided not to go forward and test the law in this area, one of the most important fair use opinions in the history of copyright law would never have been written.  Shepard Fairey's case illustrates a similar dynamic.

The Danger of a Clearance Culture

Ask any documentarian, and she will tell you stories of the pervasiveness of the "clearance culture" that permeates the film industry, often adding crippling costs to film productions.  The high cost of licensing led a film like Eyes on the Prize, arguably the greatest civil rights film of our time--to languish for over a decade--until money could be raised to pay for licensing the archival footage. 

As law professor Peter Jaszi told the New York Times, "It's not clear that anyone could even make 'Eyes on the Prize' today because of rights clearances."  The "clearance culture" is so pervasive that it creates a suspicion that when users engage in unauthorized activities, they must be breaking the law. 

This is increasingly the case as the law of intellectual property shapes itself around the claims of intellectual-property owners.  Given their enormous resources, and the legislative influence that those resources purchase, copyright owners are able to convert their characterizations of certain sorts of borderline conduct as "illegal" into legislative reality. And in the meantime, copyright owners can shape the public perception of what "the law" is through their expansive access to the means of mass communication. Even when the courts, for example, ultimately conclude that space-shifting  (i.e., moving content from device to device) constitutes fair use, the recording industry can still subject us to a protracted media campaign to convince us otherwise.

If the law is to avoid being completely captured by the expansive claims of intellectual property owners, it needs more plaintiffs--and more cases--that enable courts to clarify the boundaries of fair use for the future.  That is why Fairey's case, whatever the outcome, remains so crucial. 

No matter what Fairey's deception might have done for his now-ailing public image, one thing remains clear: his case for fair use protection remains a powerful one.  Just as 2 Live Crew's ideas about the legality of their parody were (rightly) not decisive for the Supreme Court's ultimate conclusion about the fair use question, Fairey's deception, while not trivial, should not be fatal to his claim of fair use. Should embarrassment over his deception cause him to settle the case, then the loss of legal precedent - a precedent that would be of great value to copyright lawyers, artists, and all sorts of public-minded appropriators of art around the country - will be significant.  

Fairey's actions before the court are more than just a disappointment; they are an instance of deception.  But we should still be careful to recognize the ultimate significance of Fairey's transformation of a prior image --  not just for his considerable artistic skill, but also for his willingness to challenge the boundaries of copyright clearance in court.  His artistic gifts have yielded an iconic image for our generation, but his willingness to create art without prior authorization  could wind up creating a more powerful case for fair use - one that will benefit generations of artists to come. 

Sonia K. Katyal is a Professor of Law at Fordham Law School.  Eduardo M. Peñalver is a Professor of Law at Cornell Law School.  They are the authors of the book Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership(Yale University Press 2010), from which parts of this article are excerpted.  

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