While clicking around last night, I found a fair use scenario that I wish I had known about for the paper. Last August, The National Organization for the Reform of Marijuana Laws (NORML) created a poster of President Obama as a college freshman, smoking what appears to be a joint. In the original picture he is smoking a cigarette, but artist Sonia Sanchez altered the photo to make it look like a joint, and put the words “Yes We Cannibis” on the poster. The president’s classmate at Occidental College, Lisa Jack, took the photo in 1980. NORML never sought Jack’s permission, even though it is selling the poster.
The argument here is whether or not fair use law protects the poster. I think it does.
Its purpose is transformative. Initially, I was thinking it would be a parody, for a parody is defined as a “literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule” (as we read in Campbell v Acuff-Rose, who was quoting the Encyclopedia Britannica), and this poster certainly has a comic effect. However, I don’t think it is the perfect example of a parody, because Obama has admitted to smoking pot… it would be different if he had claimed not to and was then discovered to have lied. However, the fact that his signature “Yes We Can” phrase was creatively altered to fit the creatively appropriated photo to send a message is still transformative, in light of the fact that the President admitted to having smoked pot, something that politicians are known avoid coming out with. (http://www.youtube.com/watch?v=cpBzQI_7ez8)
While the poster was made for commercial purposes, we read in Campbell v. Acuff-Rose that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Besides this, the poster would not hurt Barack’s ‘market’. He has stated he is against legalizing marijuana, and no one who likes him now is going to dislike him because of this picture, which is clearly fake. Obama is a political figure, and this is to be expected for anyone who puts him or herself in the public eye.
On the other hand, I do see why Lisa Jack, the photographer of the original picture, might get upset. Sure she can argue that a substantial amount of her work was used and that those who used her work are making money off of it, but I think these factors are overridden by the fact that it is certainly transformative and doesn’t harm the potential market for her picture… if anything, it would make its worth greater. I don’t think she took this to court, though, so perhaps she realized this as well!
Here’s a link to the article that I also posted on Delicious: http://voices.washingtonpost.com/reliable-source/2009/08/rs-norml5.html
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