Is the “Hope” Poster Copyright Infringement? t became an iconic image in a hurry. Los Angeles artist Shepard Fairey started with a photo of Barack Obama. He colored his version in tones of red, white, and blue, with a style like an old propaganda poster. Fairey placed the word “PROGRESS” under it, and then more famously, the word “HOPE.” Associated Press photographer Mannie Garcia took the photograph of Obama at a press conference in 2006. Garcia was quoted recently as saying that if he spoke to Fairey about it, he would tell him “Your poster’s way cool, man.” Way cool or not, the AP did not appreciate that Garcia’s photograph was the basis for Fairey’s poster. The AP believes that Fairey’s copying amounts to infringement of the AP’s copyright. After a series of demands that reportedly began shortly after Obama’s inauguration, the case is now in court. Interestingly, it was Fairey who brought it there, filing an action to determine whether he has a copyright problem, and seeking a judge’s determination that he does not. Fairey has asked the court to find that he
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Marketing Maven You’re An Expert and You Didn’t Even Know It (Nor Do Your Prospects...) hether you’ve already started your own business, are considering starting one, looking to market yourself for a new career, marketing your special talent or skill is going to be key to making you stand out from the crowd. The following is an illustration of understanding this concept. A friend of mine is an amazingly talented artist, mostly self-taught. She can work in any medium (paint, clay, fabric, yarn) and create something beautiful. In fact, she decided to paint a jungle mural for her son’s room and the outcome was jaw-dropping. Then she was inspired to paint a mural of a scene from Peter Pan in the hallway leading to her children's room. It resulted in another jaw-dropping creation. We chatted about it one night, trying to figure out how she could get paid for doing what she loves. What I learned from the conversation was she had a low level of confidence in her artistic skills because it came so easily to her, and she assumed most anyone could do what she does. This was a profound concept for me because she appears to be very a self-confident person.
has not infringed any of the exclusive rights the AP has in the photo, and if not that, then to find that his copying is “fair use” under copyright law. (Perhaps to avoid losing on the first question of the AP’s exclusive rights, Fairey’s court papers admit that he used the AP photo as a “visual reference” for his works, but do not say that he “copied” it.) So are you allowed to copy a photo if what you do with it is “way cool”? In the Fairey case, it is shaping up to be a close question. If you ask exactly what fair use is and whether it justifies any particular copying, you will probably get that familiar lawyer’s answer—“it depends.” So here is what it depends on: (1) Whether the copying use is commercial or not; (2) whether the work being copied is purely creative as opposed to more factual; (3) how much of the work is used; and (4) the effect of the use upon the potential market for the work.
By demonstrating your knowledge and giving away some of it for free, you increase your value and your credibility.
W
Spring 2009
Your advice may be your best marketing tool.
Knowledge is Power This revelation about talent and skill can easily be applied to how you can market yourself and your business. For example, say you own a painting company and have a client that has watched one too many episodes of Trading Spaces on TLC. They may think they know what it takes to paint a red dining room, but they don’t understand that you shouldn’t use a neutral base paint if you don’t want to apply seven coats of it, even with a coat of red primer applied to it. This is an expensive and time-consuming lesson to learn that you, the expert, www.workmagazine.biz
BY CHRIS GATEWOOD
Chris Gatewood is a lawyer with the firm of Hirschler Fleischer, P.C., in Richmond. Chris tweets @gatewood5000
The interesting thing about the Fairey case is that while Fairey has said in media reports that he should have at least credited Garcia for taking the photo, Fairey has something to say about all four of the fair use factors. On the commercial question, he sold several thousand posters, but has said that he used the money to give away even more of them for free. The work being copied was a news photo, which may seem to a judge to be more factual than some other works would be. Garcia’s whole photo was not used, as the whole photo also included actor George Clooney, who was beside Obama at the 2006 press conference. Finally, the extent to which the use by Fairey has impacted the AP’s market for the photo is an open question. It is very early in the case, and the parties have yet to develop whatever evidence they can muster for or against the fair use question. But the PROGRESS of this case, we HOPE, will be interesting to watch. (Full disclosure: Columnist Chris Gatewood worked for the Richmond office of the Associated Press as a reporter and editor in the 1990s. He did not take any photos of Barack Obama.)
BY JENNIFER YEAGER
Jennifer Yeager is the Marketing Communications Manager for the Greater Richmond Partnership Inc.
could have told them. People will pay for your expertise because it will save them time and money. (In this example, I am unashamed to admit that I was the person applying seven coats of paint.)
Increased Value It’s a simple example, but think about it in the context of your own business or your resume. You can market your expertise by sharing tidbits of your valuable knowledge either by doing speaking engagements or writing an article, column, newsletter; or updating on Twitter, LinkedIn, Facebook, etc. By demonstrating your knowledge and giving away some of it for free, you increase your value and your credibility. Knowing your target market and the associations they are involved with allows you to focus your marketing energy on those people who will then begin to perceive you as the expert. The end result? More business and opportunities for you. My friend took photos of her mural painting skills to the local schools and was PAID to add fun to their student halls. She also now owns and runs a highly successful craft store. Don’t underestimate or undervalue your knowledge base—what comes easily to you may be your target’s Achilles’ heel. WORKMAGAZINE
M O M E N T U M
Legal Brief
Mr. Gatewood’s self-portrait, Obamatized.
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