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Copyright Law in the United States Research Paper

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Updated: Nov 1st, 2021


What could be your concerning the case of Shepard Fairey vs Associated Press in terms of media ethics? Is Fairey’s step to sue Associated Press justifiable? Or should Fairey have politely accepted to comply with the Associated Press and settled the matter privately knowing that he had infringed the rights of the Associated Press? What does copyright law entail? Does it include all the aspects of the article in question including meaning, pictures, the intended message, and all other dynamics of the article or does it take each aspect as an independent entity? This is an issue that needs insight into all the dynamics of the issue of copyright including what it entails and what it covers. However, to apply it to the case of the Associated Press and Shepard Fairey, one also needs to understand the plot of this case.

Fairey Vs Associated Press

In early February, a lawsuit was filed by an artist by the name Shepard Fairey against Associated Press asking for a federal judge’s declaration that his use of a news photo of President Barrack Obama as his basis for a campaign poster was not an infringement of the copyright law and that he was well protected under fair use (Kennedy, 2009). The controversial photo was taken by an AP photographer by the name of Mannie Garcia in April 2006 at the National Press Club. Earlier, AP officials had visited Fairey’s studio claiming to have determined that the source of the photo was theirs and that they needed payments for having used their photo. In addition, they needed that a portion of money accrued by the artist from the photo be handed to them.

On his part, Mr. Fairey denied having infringed the copyright law citing that all he had done was use the photo as a source of reference. Antony Falzone, an executive Director at the fair Use Project and a lecturer of Law at Stanford University, and who acts as his lawyer purported that the photo was only used by Fairey as a reference but was converted into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.” (Larson, 2006). This according to him was a very different message as compared to Mr. Garcia’s shot. What they purport is that Fairey’s use of the photo only falls under the fair use of exceptions of the copyright law. This exception allows for the use of copyright materials in a limited way in such cases as criticism and comment.

In March, AP sued Fairey for willfully using their photo in a campaign poster for Barrack Obama. They claimed that Fairey had the habit of failing to recognize the rights of other people’s property, something that has led to several arrests in line with the same. In addition, they claimed that the Obama photo has a patriotic theme an aspect that makes it unique, and therefore Fairey should have given credit to Garcia for using it on his unlicensed products. Fairey’s use of this photo on his merchandise, as purported by the AP was a full copy of the entire meaning of the photo as portrayed by Garcia and therefore should face the arm of the law for infringing the copyright law.

From the case above, one could be left in the state of limbo not knowing exactly where the judge of the case should lean. Fairey on his part is convinced that he has not infringed any copyright laws because the image was only used as a reference to the new theme that he brings out. To justify or disqualify this stand, one has to understand the definition of copyright, what it entails, what aspects are covered by it, and what the exceptions are.

The US copyright office (2009) defines copyright as, “a person’s exclusive rights to authorize certain acts (such as reproduction, publication, public performance, adaptation, etc) about his or her original work of authorship.” There are other aspects of creativity that are not covered under copyright law. These are facts, methods of operation, systems, and ideas. This is not to say that these few things mentioned cannot be considered under protection from copyright law. The US copyright office stipulates that the law may protect how these issues are expressed.

What makes the photo unique, according to Associated Press is its theme of patriotism. This means that the main idea in this photo was patriotism. The belonging to America. Therefore, Fairey has used this theme to incorporate it into his theme of hope in the Obama campaign poster. However, how does copyright law in the United States approach the issue of protecting an idea? Superficially, an idea, a system, or a concept are not protected by the copyright laws but how they are expressed is protected (US copyright office, 2009). This means that one can develop an idea and bring it out through writing or drawing. In this case, the idea itself is not protected. What is protected is the description in the writing which in other terms is the way the idea has been brought out. In the case of a drawing, the idea will be open for other people’s use without the owner’s acknowledgment but the drawing itself which is the way your idea has been brought out is protected.

What can this express in Fairey vs AP case? The clear point is, Garcia, AP’s photographer made a shot of Obama at the National Press Club. This photo carries with it as its heart the idea of patriotism (Larson, 2009). Fairey on his side paints the same photo and uses it to portray an entirely new meaning which is not mentioned except that it was meant to help Obama win the presidential elections and that it was not meant for commercial use. He says that its proceedings were donated to charity and not for personal benefit.

These arguments put Fairey in a precarious position. One thing that has to be noted is that AP licenses all its photographs that are meant for both commercial and noncommercial purposes. Among the non-commercial purposes is the political campaign (Larson, 2009). This means that from AP’s point of view and of cause from an objective point of view, Fairey infringed the copyright law by using the AP photo without having to get permission from the source. In addition, Fairey argues that he only reproduced the photo to help Obama win the elections. What, therefore, within his painting, helps Obama win the presidential elections? It must be the core idea behind the image. This is the idea behind Garcia’s photo which is patriotism. The idea then incorporates with hope and progress for any patriotic Americans lies in the election of Barrack Obama. This justifies AP’s position that Fairey’s use of this photo squarely uses the idea of Garcia without excluding anything.

Why exceptions?

Fairey’s main argument as portrayed by himself and his lawyers is that he used the photo under one of the exceptions which is fair use. This leads us to a new dimension of copyright law. What are the exceptions to copyright law? Do the exceptions support Fairey’s use of the photo under fair use? According to IFLANET (2008), there is a need for exceptions in copyright law. Even though it prohibits the use of original intellectual property, there has to be a balance of interests between the owner of the property and the society at large. Without exceptions in the copyright laws, there could be a problem in learning and research. This process relies on the available knowledge base to develop new inventions. In addition, exceptions give room for the flow of information within the society. This is an essential part of the growth and development of any society. Other important issues that promote the need for exceptions are that exceptions are necessary for the promotion of culture and heritage and the encouragement of freedom of expression. In precise, the main importance of having exceptions is to promote knowledge advancement and to encourage innovation.

Fair Use as Fairey’s Defense

Fair use is one of the exceptions that are found under copyright law. This is what Fairey has taken as his defense against the claim of infringement. He purports that the use of this photo was done to a small limit that qualifies to fall under the exception of fair use. The only use, according to him, was reference but the rest of the painting gives a very different idea as compared to the original idea by Garcia. What are the specifications of fair use? Do they justify Fairey’s use of the photo?

The copyright Act (title 17, US Code) outlines the copyright law specifications to the owner of the intellectual work and to the person who wants to use the work. In section 107, it gives the instances by which one can use copyrighted material in one of the doctrines it terms “fair use.” Seemingly, the doctrine was not originally mentioned in the previous law of copyright, its birth came as a result of consistent court rulings for a while that eventually led to its codification in copyright law’s section 107. This section outlines several uses through which one can justify himself as fair use. These are the reproduction of a work for criticism, news reporting, scholarship, comment, teaching, and research. These are the instances that work can be reproduced and termed as fair use (US copyright office, 2006).

To determine whether the use is fair, the same section outlines four core factors to be considered to determine whether the reproduced work qualifies to be classified as fair use. These factors include the purpose for which the work was reproduced. In this factor, the reproduced work should not have been done for a commercial purpose. Instead, it should be proved that the reproduction was meant for non-profit making projects like educational purposes (US copyright office, 2006).

Other factors to be considered before ascertaining fair use are the original work’s nature, the amount of reproduced work about the size of the copyrighted work, and finally the effect that the reproduction can have on the market value of the potential market of the copyrighted work. These are the main factors to be considered according to the US copyright office (2006).

This is what Fairey is taking as his defense for the claim of infringement of copyright law. One cannot judge yet whether he qualifies to be protected under the fair use exception because AP still should convince the Court that the reproduced work by Fairey can be considered to exceed the de minimis. In this argument, the copyright holder must have, quantitative prove to show the court that the reproduced work is more than what can be termed as trivial. As per the standard of the law, the doctrine of de minimis non-curat lex that applies to other cases also applies to the case of copyright.

This doctrine dictates that the law shall not concern itself with issues that are too small to be of concern. In the cases of copyright, the law of de minimis non-curat lex has been applied to mean that the court shall not uphold a case if the infringer is seen to have used a potion that is too small to be of concern to the court. This is to say, the case was below the standards to be referred to as de minimis. In this doctrine, it is believed that the law does not depend on truffles. One must have a satisfactory quantitative threshold to win a case of copyright infringement (Meiselman et al, 2008).

A good example of the application of the case of de minimis can be found in the case of Bridgeport music inc. vs No limit films where a sample of the song ‘Get off Your Ass and Jam’ which was an original composition and production of Bridgeport inc. was incorporated in the production of the movie ‘, I Got the Hook Up’ by No Limit Films. At first, the case was dismissed thanks to the doctrine of de minimis where the court found that the use of the song was so minimal that it could not be found to be within the level of de minimis. It was only after an appeal and a rehearing of the song that the court ruling was changed making No Limit Films accountable for infringing the copyrights of the song owed by Bridgeport records (US Court of Appeal, 2005).

The case of Fairey and AP tends to be somehow complicated on the side of Fairey. The problem arises in the context that although the court wants a quantitative threshold, the superficial similarity between the two images is a white elephant. This comes in terms of the position argued above. AP purports that the main theme of Garcia’s photo that makes it unique was its aspect of patriotism while Fairey argues that he only used the photo as a reference to a different theme but intending to make Obama win the presidential elections. As argued above, the theme of hope being expressed under a photo that was originally meant to bring out the theme of patriotism can show a lot of similarities. This is very likely to be proof enough to show that the reproduction exceeded the de minimis.

Another very important factor to be considered when trying to ascertain whether the reproduced work qualifies to be classified under fair use is the size of the reproduced work about the original work (US copyright office, 2009). The comparison of the means of expression of the two ideas in the photo by Garcia and the painting by Fairey is similar. Both of them show President Barrack Obama in a pensive position. It is the same picture. Furthermore, the theme of the original photo by Garcia looks very similar to the theme of Fairey’s painting. The only difference comes in terms of the reason as to why Fairey used the image. This forms the only difference. Garcia took the shot with its main theme being patriotism while Fairey’s main aim was to help Obama win. This leaves a very small difference in the meaning and appearance of the original work and the reproduced work.

Unfortunately, this could not be applied as directly as it appears. Meiselman & Carton (2008) identify another weakness in the field of ethics concerning copyright law. According to them, the similarities alone might still pose no weight enough to prove that there exists an infringement. This comes up in terms of what is referred to as Scenes a fair. This means that the similarities in original work and the reproduced work may fail to be of consequence if they come in terms of being a standard element. These are scenes that are common in normal day-to-day life. These are not protected under copyright law.

A good case concerning this stand was between the movie John Q acted by Denzel Washington and for New Line Cinemas and Kharisma Heart of Gold by Chitunda Tillman. According to the plaintiff, the movie John Q took most of its storyline from his movie. The grant summary judgment by the seventh circuit was in favor of John Q asserting that the scenes of controversy which included a caring father, problems with medical cover, sickness in children, hospitals, and substantial crying and praying were all scenes a faires in that they contained standard scenes that are commonplace in the day to day life (Meiselman, 2008).

This ruling could be detrimental to the case of Fairey and AP. It could lead to the justification of the theft of ideas. Ethically, AP is bound to benefit from the idea they created from the photo by Obama. Unfortunately, if the courts decide to use the scenes as a fair principle, it could end up justifying Fairey’s reproduction as Obama’s photo being a standard scene because he is the president of America.

The controversy arising from this case could be attributed to the inadequacy during the formation of the copyright law. It is clear from the source of the law that most of the cases cannot be comfortably handled because of the indefinite nature of the application of this law. For example, the US copyright office clearly defines that it is better for a person reproducing a copyrighted work to ensure that he does it away that will not lead to a controversy. This is because the copyright office cannot determine whether the work reproduced can qualify to be included under fair use or not. In addition, they cannot offer any advice concerning copyright violations. (US copyright office, 2009). In addition, copyright law imparts little power to the copyright office. For example, to seek permission to use copyrighted material, one does not go to the copy-right office because this office has no power to offer permission. One has to get permission from the owner of the copyright.

What impact has this had on the artists? As shown in the case, Fairey can reproduce Garcia’s photo and use it for a political purpose without having to fear dire consequences. This he knows will be defended under the fair use shield. This means that the inappropriateness and the inadequacy of the copyright law to clearly define the limits of fair use encourages reproduction of intellectual property by other people who later benefit and also temper with the sales of the original work. Furthermore, the incapacity of the copyright office to have powers enough to ascertain the limits of fair use also gives power to copyright infringement. As in this case, AP’s copyright was infringed but the copyright office will not be in a position to intervene in the case neither are they in a position to advise AP concerning the violations (US Copyright office, 2009).

The commercial part of the copyright law also works as part of the controversy that makes copyright owners incur losses because of the incapability of the law to protect them. In 2002, for example, congress tried to enact a law that would protect the rights owners from incurring losses in terms of using appropriate technology. In the bill, entertainment and technology industries were to ensure that they came up with a form of technology that would not give room for illegal reproduction of music or videos. Although this could have been appropriate for the copyright owners, the technological industries found it inappropriate to argueCongress, that this would be a move meant to undermine their creativity and would impact negatively on their performance (Evangelista, 2002).

Unlike companies like Walt Disney which found the move very appropriate, other manufacturing companies like IBM, Intel, Dell and Hewlett- Packard opposed the bill (Evangelista, 2002). This shows that the commercial aspect of the entertainment industry and the variety of the stakeholders make it difficult for an appropriate and more definite law to the issue of copyright. Both the industries, those that benefit through technology and those that directly manage the production of these creative ideas, have parallel interests that make it very difficult for a step forward in the management of this issue.

According to Kennedy (2009), the source of the painting used by Fairey in his campaign poster was found on the internet. Fairey claimed to have found the picture from the Internet making bloggers embark on the effort to get the exact source. It was here that it was ascertained that the photo was from AP’s photographer, Mannie Garcia. This leads to another controversy in copyright law. One of the most controversial issues has concerned the digital world. This arose from the European Union’s directives in their effort to harmonize the different aspects of the copyright laws in the different member countries. In their directives, the EU provided several exceptions that are non-mandatory of which the member countries could implement or fail under their own volition.

The exceptions included temporary reproduction, private use, photographic reproduction, religious celebration use, for people with disability’s benefit, for public security, and many others. While the importance of exceptions is noted, it is still important that decisions be made to help the rights owners to benefit from their works of creativity. The internet is one of the most recent inventions that were not well covered by the copyright laws calling for amendments that could serve as a form of protection for both the owners of copyright and the good of the society (IFLANET, 2008). With the internet becoming one of the most dependent news sources, it is therefore important that definite and precise copyright laws be enacted that are harmonized in all the states.

The internet, therefore, remains the most popular source of copyright infringement. While millions of people surf the net which contains all materials including music, graphics, videos, games, and many other things, the rights owners feel that they are being short-changed in terms of profit. The case of RIAA v. Napster shows the difficulties caused by the advent of the internet. In this case, Napster who is the defendant is sued by RIAA for starting a site that enabled peer-to-peer connection all over the world. On this site, the youth could easily use mp3 formats to download audio files and also send them to friends all over the world. This caused an outcry from companies like Bertelsmann, Time Warner, Sony, etc who were under the RIAA. These corporates purported that their rights were being infringed by the free distribution of audio files by Napster online. They decided to file an appeal in the court f law (Straggas, 2000).

In 2000, Napster got the mandate from the court to continue oa wayperating while the appeal was being heard. In October, Napster signed for a joint venture with Bertelsmann to continue with the same activity but charge the users a registration fee. This still caused an uproar from other companies purporting that the joint venture does not highlight the issue of the copyright laws infringed before the merger (Straggas, 2000).

Apart from Napster, there are many other free cities that are offering the same services. This means that the copyright law must take the necessary step that will help rights owners to avoid the losses that they are incurring currently due to the inadequate protection and also the controversies associated with the use of the internet concerning copyright.

This uncertainty in the covering of the digital world could have acted as an incentive for the action taken by Fairey. As a result, this led to the unfair utilization of AP’s property and using it for his purposes. This shows that inadequate covering of all forms of intellectual property also leads to losses being suffered by copyright owners because they cannot be protected adequately. AP had to suffer as a result of the incapability of the copyright law to precisely highlight the issue of the internet under their umbrella.


From the issues highlighted by the case of Fairey and AP, it is evident that AP could suffer loss to Fairey who would benefit because of the inability of the copyright law to protect the rights adequately. This marks the weakness as portrayed by the media ethics framework. Although most of the loopholes are a result of fair use, they could easily be sealed if a better way of defining the limits of fair use was enacted. Otherwise, more rights owners will continue to suffer loss just like AP while scrupulous people continue benefiting through minor diversions of an idea and protecting themselves under the fair use exception.

In addition, as the world advances technologically, it calls for organizations to be vigilant and receptive to remain afloat. The media is not left outside this bracket. Constant readjustments should be made often to include the new inventions in technology. The advent of the web, for example, marks one of the technological inventions that the media’s ethics have not covered adequately. Without a good outline of how the use of the internet will be accounted for within the media ethics, cases like Fairey and AP’s will continue to frequent the news and the media as a field will remain outdated and incapable to serve its functions.


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