Is it fair use to recast an iconic photograph of President Obama to send a political message? You've got to hand it to the National Organization for the Reform of Marijuana Laws (NORML) for adding a humorous dimension to this now-familiar question:
The Washington Post reported earlier this month that photographer Lisa Jack is peeved over NORML's use of her photograph of Obama, taken in 1980 when he was a freshman at Occidental College, where Jack was also a student. The photo and others in the same series were published in Time Magazine's 2008 Person of the Year issue and are currently on exhibit at the M+B Gallery in Los Angeles.
According to the Washington Post story, NORML acknowledges copying Jack's photo for use in its annual conference poster and says its artist Sonia Sanchez made few alterations to the photo itself:
"With very little adulteration, she placed what appears to be a cannabis cigarette" in the president's hand, [NORML's executive director] said. But she made few other changes: Obama "almost made the photograph for us."
But the poster is hardly a verbatim reproduction of Jack's photo. Shaded green, the photo now finds itself in a swirl of psychedelic graphics, bubble lettering, and Rasta colors — reminiscent of a 1960s concert poster — and it is paired with a new political slogan that itself riffs on iconic Obama-ness — "Yes We Cannabis." When asked about potential copyright liability, NORML's executive director told the Post "our lawyers thought it was adulterated enough to comply with the fair use laws." Clumsily put, but probably not entirely off base.
As with Shepard Fairey's "Hope" image, a court's fair use analysis would likely hinge on the "transformative" character of NORML's poster. Beyond tweaking the image and incorporating it into drastically different visual surroundings, the poster employs Jack's photo for an entirely new purpose and imbues it with "'new information, new aesthetics, new insights and understandings.'" Blanch v. Koons, 467 F.3d 244, 253 (2nd Cir. 2006) (quoting Castle Rock Entm't v. Carol Publ'g Group, 150 F.3d 132, 142 (2d Cir. 1998)).
In Koons, visual artist Jeff Koons used a fashion photograph in one of his collage-like paintings to comment on "the social and aesthetic consequences of mass media." The court found that his use of the photograph was fair use, emphasizing its highly transformative quality. The court explained that "[w]hen, as here, the copyrighted work is used as 'raw material' in the furtherance of distinct creative or communicative objectives, the use is transformative." Id; see also Bill Graham Archives v. Dorling Kendersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) (finding that use of concert posters as "historical artifacts" in a biography was transformative).
This strikes me as an apt description of what NORML did with Jack's photo. The marijuana reform organization used it as raw material to create a political work with sharply different aesthetics and a new meaning and purpose, albeit a purpose that many — including Obama — don't take very seriously. NORML's case may even be stronger than Koons' because of its overtly political message, something that throws more First Amendment weight into the fair use calculus. See generally Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (characterizing fair use as a "First Amendment safeguard" within copyright law).
Moreover, because of its transformative character, NORML's poster is not likely to function as a substitute for Jack's photo. I would indeed be surprised if anyone would forego a trip to the gallery because of NORML's homage to stonerdom. Sure, there is always the issue of possible licensing markets for Jack's work, but we have to be careful how we define that market. She's clearly got a potential market for future reproductions in newspapers, magazines, and online publications that want to publish them because of their significant artistic merit and popular appeal, and Jack has already shown her willingness to exploit that market. But Jack seems decidedly unwilling to consider licensing for politically oriented uses. She told the Washington Post:
These photos "are absolutely not to be used in this way. ... I really made a grand effort to do this properly, and I'm very irritated. If I'd wanted these to be used for political purposes, I'd have sold them to Hillary years ago."
Courts often view a copyright holder's unwillingness to license the particular use in question as weighing in favor of fair use. See, e.g., Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 805-06 (9th Cir. 2003) (Mattel unlikely to license artistic photographs of Barbie in absurd and sexualized positions). And copyright law does not provide relief for harm to the value of Jack's work stemming from an unsavory connection with controversial or unpopular political views. See Koons, 467 F.3d at 259 ("'[O]ur concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.'") (quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481-82 (2d Cir. 2004)).