This was an interesting article I found when I was looking for a fair use case. It hasn’t yet been brought to court and I’m not sure it ever will be. But here is what happened: Lisa Jack took a series of photographs of Barak Obama in 1980 when they went to school together. They were never published or formally exhibited until recently. In 2008 the photographs were used in Time Magazines “ 2008 Person of the Year” issue. Sense then, the National Organization for the Reform of Marijuana Law (NORML) appropriated one of the pictures in 2009 for an annual conference poster. One of the photos Jack took showed Obama smoking a cigarette. NORML digitally altered the photo to show Obama smoking a blunt with the caption “Yes We Canabis” written at the top. The posters were handed out to attendees and are also available for purchase on the web ($15-25). So the question is whether or not this is considered fair use. NORML never received permission to use the photograph. However, the intended use, which was obviously transformative, makes the infringement somewhat acceptable. Personally, I was wondering if the poster is considered slanderous to Obama’s reputation, and if so, how does that affect NORML’s case for fair use.
Here is the link for the article: http://voices.washingtonpost.com/reliable-source/2009/08/rs-norml5.html
And this is a link showing the photos Jack took: http://www.time.com/time/photogallery/0,29307,1866765_1815160,00.html
Just to note, it couldn’t be slander- slander is spoken, libel is printed/displayed; both are variants on the legal claim of defamation. There’s also a more permissive standard for public figures in this area; NY Times v. Sullivan is the leading case to look at it if you’re interested.
Do you think that defamation of the subject of the work would/should affect a fair use determination? Which factors do you think would it involve and how?
Also, please add a title to this post. It’s important for the navigation in various parts of the blog.
I just posted on this same story on the 26th! Check it out, it’s titled “Barack Oh-Ganja” =)
Aside from this being funny, I do think that the use of the photo was fair. The altered photo of Obama is certainly not one that the President or his administration want floating around or associated with his overall image/brand. Nonetheless, the people who did alter it did so with the purpose of transforming the photo; they did not have any intentions of conveying a similar message as the original photos did.
In my opinion, this time of transformation is deemed parody, because the people at NORML know that Obama would never outright support their cause.
Sometimes I am not sure if cases like this are funny or just sad
to use the oldest trick of rhetoric, taking statements, pictures and the like out of context and use them for a personal agenda. My roommate recently told me about a journalism class he took in college and how a professor told him that the press and the white house came to an agreement to not publish any pictures of him smoking. Since word of mouth isn’t an empiric source whatsoever, I tried searching for such an agreement online, finding a myriad of magazines judging the fact that he smokes. As Miles Davis would say: So What?
One magazine in particular, that labeled itself as unbiased and depicting the real, in between the line news of mass media used the fact that he smokes and and admittedly used cocaine in his youth, to go on and mention the fact that he studied the Qu’uran.
Although they do not explicitly pinpoint him as the evil president, they take the fact that he smokes and tried cocaine (like a big amount of other young Americans) and depict him as ad president. Catchy lines, like “his smoking habit has blown into an addiction” don’t sound very objective.
To cut a long story short, the picture in question was barely altered and used for the a commercial purpose, since they are sold on NORML’s website.
Possible libel aside, I don’t see a compelling reason, why the use of the picture in question should qualify as fair use and therefore think Ms. Jack’s copyright has been infringed.
I’m curious how you might distinguish the commercial use here from the commercial use by 2 Live Crew in Campbell. If anything, isn’t 2 Live Crew’s use more commercial, because they are a for-profit entity?
Well, NRML did use the poster for profit- it is available for sale on their website. But selling the posters was a secondary purpose to their primary goal of making a political statement. I believe any judge who examines the circumstances surrounding the photo would draw a similar conclusion. In the case of Campbell V. Acuff-Rose, the court held that 2 Live Crew’s song was a parody. But after listening to 2 Live Crew’s lyrics I think it is pretty clear that the song was never intended to prove a point or be taken seriously. In this instance, profit arises because of the purported amusement of the song or because buyers wanted the other tracks on the cd. Thus, I would have to differentiate between NRML’s and 2 Live Crew’s commercial use in that the former initially created the poster for a select political following, later making it available to the general public, while the latter released the song for sale immediately to the general public.