In 2009, Fairey sued the AP arguing that his artistic transformation of an AP photograph was protected under the doctrine of fair use.
The AP sued Fairey arguing that he misappropriated its rights to the image when he created and sold posters and other merchandise with the likeness.
In this exercise, students learn the background of the image, listen to audio interviews with the plaintiffs, examine court documents, and debate the merits of the case.
Because the case was settled out of court, it requires students to come up with their own arguments for how the court might have ruled.
Students also explore the definition of journalism and how the image changed over time – from a news photo to a campaign poster to a work of art to a cultural icon.
The lesson emphasizes critical thinking and class discussion and requires students to consider how they use and adapt online media.
Goals for this lesson:
- Learn the definitions of copyright and fair use.
- Explore a timely and significant copyright dispute involving photojournalism, art and politics.
- Listen to how an experienced journalist questions key people in the case.
- Think critically about the definition and value of journalism.
- Develop practical guidelines for professional and personal uses of online media.
- Computer terminal for the instructor
- Internet access
- Projector and screen
- Speakers for listening to audio
- Fairey v AP Online Resource List – Provides links to web sites, images, audio clips and legal documents. [doc]
- “Lawyer Up” Exercise – Handout for in-class assignment. [doc]
- “Lawyer Up” Answer Key – Sample answers for in-class assignment. [doc]
Instructor’s Guide (designed for 1 hour and 15 minutes)
The lesson follows the chronology of the Fairey v AP legal case. Information is revealed to students in the order that it became public. Class discussion is conducted throughout the exercise.
Before the class begins, open each of the online resources in its own web browser tab. The instructor can tab through each at the appropriate point in the lesson. If students have access to Internet, instructor can also provide students with the online resource list so they can also follow along on their computers.
1. The “Hope” Image (5 min.)
View the Obama “Hope” poster from the 2008 presidential campaign. (online resource #1 http://obeygiant.com/headlines/obama-hope).
Ask students what they know about it. Do they remember the first time they saw it? Does anyone know who made it?
The visual artist Shepard Fairey, who is known for his stylized illustrations that resemble historic propaganda posters, created the image during the 2008 presidential race. The image quickly became a prominent symbol of the campaign. It was replicated on posters, stickers, merchandise, murals and news magazine covers. In January 2009, the Smithsonian Institution’s National Portrait Gallery in Washington D.C. added the Obama “Hope” poster to its art collection.
- Why do you think the poster became so popular and iconic?
- What do you think the artist wants to convey through the image?
Searching for the Source (5 min.)
Provide students with background on the image.
Fairey acknowledged that he used an Associated Press photo as inspiration for the illustration, but did not identify or give credit to the photographer. This sparked speculation about the source of the image. After several months of online debate, photojournalist Tom Gralish identified a 2006 photograph by Mannie Garcia as the source. The photo was taken at a National Press Club event attended by actor George Clooney and then Illinois State Senator Barack Obama. Gralish wrote a blog post about it.
Open Gralish blog post link (online resource #2 http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/found_again_the_poster_source.html) Read selected passages to learn how he identified the image.
- What do you make of Gralish’s search for the source?
- How does the original photo compare to the illustration?
- What do you think the photographer wants to convey through the image? How is it similar to the poster? How is it different?
Copyright and Fair Use (5 min.)
Review the basics of copyright and fair use.
Open U.S. Copyright Office FAQ about copyright web page (online resource #3 http://www.copyright.gov/help/faq/faq-general.html#what)
- Protects intellectual property including literary, dramatic, musical, artistic and other intellectual works.
- Grants the creator of a work the exclusive rights to use or not use the work as he/she sees fit.
- Covers a range of materials including print publications, recordings, photographs, videos, web pages and emails.
Open the U.S. Copyright Office definition of fair use web page (online resource #2 http://www.copyright.gov/fls/fl102.html)
- Is an exception to copyright law.
- Allows for the use of a portion of a work for the purposes of “criticism, commentary, news reporting, teaching, scholarship, and research.”
- Takes into account the context and transformative nature of the use.
Example: If a music journalist wants to review a new album, she can quote a portion of the lyrics without seeking permission.
Courts consider four factors in fair use cases:
- Purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purpose.
- Nature of the copyrighted work.
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- Effect of the use upon the potential market for, or value of, the copyrighted work.
General Advice: When in doubt, obtain permission from the copyright owner before using copyrighted material.
Fairey and Garcia Make their Cases (25 minutes)
Provide a brief overview of the lawsuits, which students will hear more about in a few minutes.
Shortly after Gralish published his blog post, the Associated Press contacted Fairey claiming copyright infringement and requested compensation for use of the image. On February 9, 2009, Fairey sued the AP arguing that his artistic transformation of an AP image was protected under the doctrine of fair use. In response, the AP sued Fairey arguing that he misappropriated its rights to the image when he created and sold posters and other merchandise with the likeness.
Play the audio interviews with Fairey and Garcia that aired on NPR’s “Fresh Air” on February 26, 2009. Instruct students to take notes on key facts and quotes.
Listen to audio interview with Fairey (7 min. 15 sec.) (online resource #5 http://www.npr.org/templates/story/story.php?storyId=101182453)
Start audio at 12:35. Stop at 20:50.
Listen to audio interview with Garcia (7 min. 40 sec.) (online resource #6 http://www.npr.org/templates/story/story.php?storyId=101184444&ps=rs)
Start audio at :00. Stop at 7:40.
- What facts or quotes stand out from Fairey’s interview?
- What facts or quotes stand out from Garcia’s interview?
- What stands out about the interviewer’s questions?
- Note the choice of words that each person uses to describe his process. Fairey said he “illustrated the image.” Garcia said he “made the image.” How are these similar? How are they different?
- One image is considered journalism and the other is considered art? Why?
“Lawyer Up” Exercise (15 min.)
Divide the class into two groups. One group will act as the lawyers for Fairey and the other will act as lawyers for the AP.
Provide each group with the “Lawyer Up” Exercise Handout.
Provide each group with the link to their plaintiff’s lawsuit:
Fairey v. The Associated Press (online resource #8 http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv01123/340121/1/)
The Associated Press counterclaim against Fairey and Obey Giant (online resource #9 http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv01123/340121/13/)
Review the instructions on the handout. Each group will answer the following questions.
- Was the use of the image for commercial purposes?
- Did the use transform the copyrighted work?
- How much of the original work was used?
- How did the use affect the original’s value?
Give groups 15 minutes to research and summarize arguments.
Hold Court (10 minutes)
Bring students back together as a class. Ask representatives from each group to answer each question for their respective clients.
See “Lawyer Up” Answer Key for sample arguments.
After the arguments are finished, ask the class to rule on the case based on the facts and their understanding of the law.
- Who rules for Fairey? Why?
- Who rules for the AP? Why?
Breaking News in the Case (5 min.)
Present new information in the case.
In October 2009, Fairey admits that he knowingly submitted false images and deleted others in the legal proceedings in an attempt to conceal the fact that the AP had correctly identified the photo that Fairey had used as the basis of his work. Some legal experts who had supported Fairey’s fair use argument distanced themselves from the case. For more details, see AP press release (online resource #9 http://www.ap.org/pages/about/pressreleases/pr_101609a.html)
- Fairey admitted he lied to the courts and the public. Does this information change your view of the case? Why or why not?
The Resolution (5 min.)
Present the resolution of the case.
The legal dispute was settled out of court. On January 12, 2011, the AP and Fairey announced that they agreed to settle the pending copyright infringement lawsuit. The two sides agreed to “work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on Associated Press photographs,” according to a press release. The financial terms of the agreement were not disclosed. Neither side surrendered its view of the law. For more details, see AP press release (online resource #10 http://www.ap.org/pages/about/pressreleases/pr_011211a.html)
- Is this a satisfying resolution to the case? Why or why not?
In February 2012, Fairey pleaded guilty to one count of criminal contempt for destroying documents, manufacturing evidence in the case and other misconduct in the case. The charge carries a maximum sentence of six months in prison and a $5,000 fine.
- Does this change your views in any way?
Wrap Up (10 min.)
In the closing discussion, review the definitions of copyright and fair use and asks students to think critically about their professional and personal use of online media.
- Has this case changed your view of copyright and fair use?
- Do you think Shepard Fairey should have acted differently in the case?
- Do you think the Associated Press should have acted differently in this case?
- As a journalist, how does copyright and fair use apply to your use of online media?
- How does copyright and fair use apply to your personal use of online media?
Mark Berkey-Gerard is an Assistant Professor of Journalism at Rowan University in Glassboro, New Jersey. In 2011, he received the university’s Frances S. Johnson Faculty Innovative Teaching Award. From 2000 to 2006, Berkey-Gerard worked as the City Government Editor for GothamGazette.com, an award-winning news web site on New York City policy and politics. His research interests include multimedia storytelling and emerging local news initiatives in the Philadelphia area. He is a graduate of the Columbia University Graduate School of Journalism.
Questions for reviewers:
1. Are the goals/objectives of the lesson plan clearly and persuasively stated? If not, what needs clarifying?
2. Are the teaching materials easy to access, easy to use, and represent ideal examples of what student can do?
3. Are the steps and instructions for putting these various teaching tools and strategies clear and easy to follow? Any suggestions for improvement?