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Stephen R. Bergerson: Copyright, not greed, behind AP lawsuit

The case comes to this: Creators deserve control over their work.

By STEPHEN R. BERGERSON

Last update: November 7, 2009 - 9:14 PM

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In an Oct. 21 counterpoint, art teacher Mina Leierwood attacks the Associated Press -- which is suing artist Shephard Fairey over copyright infringement -- for reporting that Fairey, after a year of denials, has admitted using AP's photo of candidate Barack Obama as the basis for his famous "HOPE" illustration.

Leierwood characterizes AP's lawsuit as "a perfect example of corporate greed utilizing intellectual property laws to control and own American culture" and proclaims that "our freedom of creativity as a nation is on the line here."

The lawsuit doesn't put freedom of creativity on the line. It puts copying on the line.

AP wants what all copyright owners want when they believe their creative work has been pirated: for the thief to (1) stop using the copy and (2) pay for the theft.

Leierwood says that Fairey's illustration (and thus AP's photo) "belongs to the people" because it has become a "cultural icon."

If creative works that become iconic belong to the people, there would be little incentive for anyone to create and to share them with the people.

Actually, all creative works will eventually belong to the people, once the statutory copyright protection period ends. But in the meantime, the law treats them as private property. Creators own their work and can commercialize it if they -- not someone else -- choose to.

Would Andy Warhol have created his famous paintings or Theodore Geisel his Dr. Seuss illustrations knowing that if the works became icons (as they must have hoped), the public would own them?

Anyone can create a copyrighted work, often at a very small cost. And the Copyright Act's fair-use provision even allows use of someone else's creative work for purposes such as criticism, comment, news reporting, teaching, scholarship or research. Fairey can argue that his illustration is different enough from the photo to be original, and therefore is his own, but even in the unlikely event that he succeeds, it would be he, not "the people," who owns his illustration.

Leierwood disapproves, and warns that "we'd better start thinking" about "who owns music, imagery and scientific innovations."

Actually, people have been thinking about it since at least the days of the Romans, who made copying unlawful.

England's Parliament also thought copying was wrong and, in 1710, enacted its own copyright law, the Statute of Anne. It began by lamenting that "printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing ... books and other writings, without the consent of the authors ... to their very great detriment, and too often to the ruin of them and their families." The statute's purpose was "preventing ... such practices for the future, and for the encouragement of learned men to compose and write useful books ..."

Similarly, our own Constitution authorized Congress, "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," by enacting copyright laws.

Ever since the first U.S. Congress did just that, literary, dramatic, musical, choreographic, graphic, pictorial, sculptural and other creative works have been protected from copying.

AP's Obama photo, like any photo, is protected because its photographer used creativity in selecting and framing the subject and background, choosing the camera angle, lens, filter, distance, lighting, shutter speed and other elements to create an original artistic expression.

If a court decides that Fairey's illustration is different enough from AP's photo to be considered original, he will own its copyright. But if all he did was draw an illustration of AP's photo, he merely copied AP's work and tried to pawn it off as his own.

Copyright laws protect everyone by encouraging each of us to create and share our works with an appreciative public, secure in the knowledge that we won't lose our work to either the public or to copycats who cannibalize creativity.

Stephen R. Bergerson chairs Fredrikson & Byron's advertising, marketing and trademark law department.

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