Last week, U.S. President Barack Obama found himself in a strange place: Plastered across a 30-foot billboard in Times Square, hawking rain coats. The depicted a bold-looking Obama walking along the Great Wall of China with his hands dug into the pockets of a black jacket with the tag line “Weatherproof: A Leader In Style”. Although the photo was properly licensed from the Associated Press, Weatherproof did not clear the ad with the White House. The billboard was eventually taken down a few days later (at the White House’s request), but the whole situation raises some interesting issues around personality rights, particularly for extremely public figures like the President.

“This ad is clearly misleading because the company suggests the approval or endorsement of the president or the White House that it does not have,” . Yet this is not the first brand that has tried to associate itself with Obama. Vancouver-based yoga clothing company Lululemon recently ran an “” magazine ad featuring a cartoon Obama sitting in the lotus position. Similarly, the Vatican has gone to great lengths to try to in advertisements and merchandise. And, of course, there was the infamous .

Celebrities in Ontario are generally protected by the appropriation of personality tort. Cases like Krouse v. Chrysler Canada Ltd. et al. (1973), 1. O.R. (2d) 225, 40 D.L.R. (3d) 15, 13 C.P.R. (2d) 28 and Athans v. Canadian Adventure Camps Ltd. et al (1977), 17 O.R. (2d) 425, 80 D.L.R. (3d) 583 (Ontario High Court) established that celebrities have a proprietary right in the marketing for gain of their personality, image and name. Comparable rights of publicity exist in most other common law jurisdictions as well.

However, the line gets blurry when the advertisements don’t actually suggest��that the celebrity is endorsing the product. In Krouse, for example, a car company used a photo of the plaintiff (a football player) in its promotional materials, but only in the form of a generic football action shot. The plaintiff’s face was not shown and he was identifiable only by his jersey number. In Athans the defendants used a drawing of the plaintiff (a famous water skier) in their summer camp pamphlets but made no indication regarding the plaintiff’s actual endorsement or involvement in the camp. In both of cases it was unclear whether there was an express intent to misappropriate the celebrity’s likeness for profit.

Things get even hazier with uber-public figures like Obama and the Pope, who to some extent live and work constantly in the public eye. It could be argued that these figures are so ubiquitous that they really have no expectation of being able to control and commercialize their images. In the Weatherproof ad there was no indication that the President was actually endorsing the jackets, nor does the ad even use his name. Furthermore, there is probably very little expectation on the public’s part that the President or the Pope would ever endorse a clothing brand. Most Americans would probably not assume that their president was acting as a Weatherproof spokesman despite his appearance in their ad. These factors make it difficult to see where exactly the misrepresentation or the damages were in this case.

Rights of personality remain a tricky issue, even more-so for the super-famous and political figures. In this case it appears the White House managed to use their political muscle to get the ads taken down, but Weatherproof certainly got more than their share of publicity out of the whole stunt. Meanwhile, here in Canada the only ads our Prime Minister has been in lately are . Stephen Harper: A follower in style?

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Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

The copyright infringement lawsuit centering around the iconic Obama “Hope” image recently took a strange turn. On one side is the controversial artist Shepard Fairey, who produced the famous poster; on the other is the Associated Press, who claims ownership of the photograph, taken by Manny Garcia, upon which the image was based. Many fair use activists hoped that the case would break new ground in defining the scope of fair use in visual media. These hopes, however, have been shaken by Shepard's admission that .

Prior to the explosive popularity of the “Hope” poster, Shepard Fairey was best known for his OBEY line of artwork and merchandise (which was itself embroiled in trademark issues in its previous incarnation, “”). �� Fairey frequently adopts pre-existing visual material into his work, and so as the “Hope” poster grew in popularity, several enterprising bloggers began to hunt for the source photograph. Eventually the Garcia photograph was .�� Garcia, at first, didn't seem terribly put out by this, and told the, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”�� The AP, however, began making threatening rumblings and entered into discussions with Fairey (represented in part by Anthony Falzone, the Executive Director of the Stanford Fair Use Project). In the first twist of the whole saga, though, it was Fairey who sued the AP in early February, seeking a declaration that his use of the Garcia photograph was protected by fair use.

This is where Fairey started the deceptions which have now come to light. The AP claimed that he used a close-up shot of Obama. Shepard claimed that he used a different picture from the same event – one that portrayed both Obama and George Clooney. Almost immediately, however, Daryl Lang overlayed the various pictures on top of each other, showing that while there were significant differences between the “Hope” image and the Clooney picture, the close-up was a .�� Despite this, Shepard maintained his version of events, until, presumably, pressure applied during discovery forced his hand. In his statement, Shepard claimed it was an innocent mistake, but that to cover it up he destroyed evidence and gave fabricated evidence to his counsel for production. The AP, in their Oct. 20 , dispute this and maintain deliberate deception. After all, who misremembers cropping out George Clooney?

Why did Fairey do this? The substance of the case relies upon fair use; exactly which of two very similar photographs he used seems a little besides the point. Either it was (originally) an honest mistake, or he thought that the Clooney photograph provided the basis for a stronger fair use argument. One of the statutory considerations for a fair use defence is the amount of the original work used; while the close-up photograph was used almost in its entirety, the Clooney photograph would have required substantial cropping (and other modifications) to produce the “Hope” image.

No court appreciates being lied to, and Fairey's deceptions risk overshadowing the fair use argument. Opinions on the strength of this argument are .�� Since the degree of transformation has arguably been the central question in fair use arguments. Some suggest that because the “Hope” image contained no commentary on the original photograph, it is not transformative in purpose, and so not protected by fair use; or that, simply, changing the colours of a photograph is not sufficiently creatively transformative.

I should admit that I believe in giving fair use a wide ambit, and hope that Shepard wins this case. The transformative nature of the “Hope” image can be seen from the effect it has had, from its immense popularity and impact. It became iconic of Obama's historic presidential campaign and has spread around the globe. The original photograph did not – could not – do that. Does that not in and of itself point to a profound transformation?

That being said, I find Fairey difficult to view as a hero of copyright reform, as some seem to. Despite his own liberal use of the work of others, Fairey didn't like it when Baxter Orr slapped a SARS mask on the OBEY Giant. This parody didn't seem like fair use to Fairey, .

Legal squabbles aside, Fairey also raises some difficult ethical questions about the scope and values of copyright. The decontextualization of politically charged art and photography can fundamentally change the impact of a work, as Ed Nachtreib observes regarding (without acknowledgement or credit).

Mark Vallen has put together that highlights his appropriation of images used in political struggles from around the world (Jamie O'Shea posted a reply to this criticism ; Brian Sherwin's rounds out the debate). Do (relatively) privileged artists from wealthy nations have any ethical (if not legal) obligation to marginalized artists? Where are the lines between fair use, plagiarism, and cultural appropriation?

The immediate future of the litigation is uncertain, and the harm done by Fairey to his own case remains to be seen. Although they have not done so yet, his counsel will almost certainly withdraw, with Anthony Falzone “at the appropriate time.”�� Just to keep things interesting, , disputing both AP's ownership of the copyright and Fairey's fair use argument.�� The case will certainly continue to be closely watched by artists, copyright commentators, and Fairey's supporters and detractors. I suspect that Fairey will ultimately emerge from all this relatively unscathed, however; between a at the Boston Institute of Contemporary Art, designing for Saks Fifth Avenue, and a with Levis jeans, the “world renowned street artist” is at the peak of his career to date.

��

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If you are not already familiar with the Shepard Fairey v. The Associated Press controversy, hop over to this and take a look at the two pictures. The original photo of Obama was taken by Mannie Garcia and is owned by the Associated Press (AP). The other photo is the Obama Hope poster created by Shepard Fairey. If you noticed the similarity, so had Garcia and AP, who called Fairey on his copyright infringement. While Fairey admits that he had used Garcia's photo without his permission as the basis for his now famous Obama Hope, he claims that he had taken the basic idea of the photo and artistically transformed it into a different form of expression to be used for the Presidential campaign. As a result, Fairey claims it should fall under the fair use framework outlined in the US Federal Copyright Law.

Under of the Copyright Law, there are four factors to be considered when determining whether a reproduction is fair use: (1) the purpose and character of the use (i.e. commercial v. ��non-profit/educational); (2) the nature of the copyrighted work (i.e. how transformative or how much creative contribution); (3) the amount and substantiality of the portion used in relation to the copyrighted work on a whole (how much was taken, how important); and (4) the effect upon the potential market for, or value of, the copyrighted work.

In a hosted by UCLA Professor, Doug Lichtman, both perspectives of the perpetually controversial fair use analysis are presented from the representatives of Fairey (Mark Lemley) and the Associated Press (Dale Cendali)

One of the main assertions that Fairey makes is that his artwork was transformative. Lemley supports his argument by stating that Fairey had taken a rather generic photo of Obama and transformed it into a socially iconic work of art. It was also transformative in the sense that the purpose for the piece was non-commercial and was intended to benefit the public interest (campaigning for Obama). Where Fairey had contributed substantial artistic creativity through the colours, shape, and expression of the poster, Garcia's actual contribution of creativity in taking the photograph was quite minimal.

In contrast, Cendali argues that Fairey had deliberately picked the particular photo because Garcia had skilfully captured the specific hopeful expression that Fairey was looking for. Cendali described Fairey's downplay of Garcia's contribution to his work as quite unfair and questions why "graffiti" artists such as Fairey deserve a first-rate artist recognition and photographers like Garcia get second-rate copyright protection for their work.

Another argument in the Fairey camp is the fact that his work was intended to be non-commercial in nature. Any profits Fairey initially made from his work were spent on reprinting posters to be distributed for free during Obama's campaign. Lemley argues that during the time that Fairey chose to do the work, it was impossible for him to know of the future success of Obama Hope. His commercial success now has nothing to do with the non-commercial intentions he originally had. If anything, Fairey's success has given AP increased licensing profits through demand for the original Obama photo.

Cendali counters by stating that Fairey has of September 2008 made over $400,000 in profit from selling Obama Hope merchandise.�� Despite the basis on non-commercial intentions, Fairey's actions have tremendous damaging effects to AP's potential market opportunities and profits on a broader scale. By encouraging other artists to ignore the copyright requirements to obtain licensing for photos, AP loses a substantial portion of revenue, which for a non-profit entity is what helps keep them afloat in the industry. Furthermore, such ignorance of copyright protection destroys the incentive system for photographers and other such artists, leaving broad social policy concerns for Cendali.

On the opposite end of the spectrum, Lemley fears the social policy concerns of an over-aggressive enforcement of the licensing market. With a licensing market that trumps all other factors of fair use, Lemley argues that we would fall into a culture of permission. A permission culture is corrosive to art and creativity - not only is there a problem of timing (it may take weeks or months to get permission), for many artists there may be great difficulty in attaining permission or finding the right people to attain permission, especially for beginning or lesser known artists.

Although Lemley and Cendali may differ on their views of the details of the Fairey case, there is no doubt that they both agree that on the broader scale, striking the right balance between protection and freedom is essential. What the right balance would be, is of course, the controversial bit. However, as far as the Fairey case goes, I would tend to agree with Lichtman's conclusion that the fair use path that Fairey chose was not necessary. As Cendali pointed out, it would have been in good faith for Fairey, in his professional endeavour to create meaningful art, to have at least attempted to attain permission from Garcia or AP.

However, I disagree with both Lichtman and Cendali's downplay of Fairey's transformative efforts. While Fairley clearly got his inspiration from Garcia's photo, he was able to take a subtle expression and create so much more. The extreme popularity of Obama Hope - and in contrast the most likely forgotten status of Garcia's original, had it not been for Fairey's work- is evidence of Fairey's success in transforming the original into a substantially different and recognized work. As such, I believe Fairey's approach and the influence that his work has attained in society would have satisfied the first three fair use factors. The immediate effects of his work on the market system (factor four) for AP and the industry would not on its own be enough to trump the first three factors. I fear that should even Fairey's use be shot down as copyright infringement, our culture of social commentary, remixing, and our ability to get inspired from others will be severely limited. While keeping in mind Cendali's fear of a broad disregard for licensing, I do not believe Fairey's use was an intensive enough of a blow to the industry at large.

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