Copyrighting Obama

You might have read this story about how the artist who created the now "iconic" HOPE poster with Obama sort of, kind of, maybe took the photo from an AP archive and never asked anybody for permission to use it. As soon as I saw it, my law school days as a lad seriously interested in all things copyright came bubbling back to the surface, and I found, contrary to my belief for a while now, that there were still aspects of legal analysis that I actually care about.

So my copyright memory is beginning to fade, but I think that legally, the artist has a hard case to make. I mean he took this photo, in its entirety, and changed it into a multi-hued, art deco thing, really only switching the colors and adding the word "HOPE" to the bottom. That changed it around, changed the context somewhat, but the underlying photo is still a photo and its still exactly as it was. Additionally he's making money off this thing, maybe not directly but the use is definitely commercial. The thing with commercial/non-commercial is that if it's commercial, it hurts you, but if it's non-commercial, it doesn't help you all that much if you've otherwise taken an image in its entirety, and not tranformed its use in any way.

There's more to it, but those are the very general basics. What'll probably end up happening is that he'll pay out a license fee or royalties and that'll be the end of it. AP will not want to be associated with enjoining all use of what has become a pop-culture phenomenon. At the same time, you look at something like this and you think that he probably should be allowed to do what he did with it, legality aside. I have major issues with copyright law, and what exactly it protects. I mean here you have a news photo that's relatively unremarkable and happens to be one of probably thousands of photos of Obama taken on just one day. An artist grabbed it and changed it into something that's more than just a news photo, albeit without altering the photo in any way. I mean, I wonder how many other photos taken that same day, taken any day, have Obama in pretty much the same contemplative pose but from a slightly different angle or different lighting. What are we protecting here? Maybe it's one thing if someone took the photo and started showing it as-is and saying its their photo. That's obviously bullshit. But this guy took an otherwise unremarkable photo from a massive archive of photos and made it into something more and maybe he should be allowed to do something like that without having to secure licensing rights.

The news aspect of copyright is another issue. Imagine you have an event that occurs and only one news station is there to capture the event. Technically they own the copyright to the footage and if they choose never to show it to anyone, they technically have that right (unless it needs to be subpoenaed in court or something). But is this proper? I mean on the one hand we want to encourage news stations to take photos and film and to be able to own the rights to their stuff. But can we comfortably say that this filming of news should garner the same level of protection as, say, a film developed out of the creativity of a group of people? Is there a creative element that comes into play if someone is standing at the right place and at the right time with a camera that he uses to capture something?

Food for thought.