“Transformative” Or Not Revisited

Earlier this year, I wrote of an impending legal battle between Shepard Fairey, the artist of the iconic Barack Obama “Hope” painting and the Associated Press who owns the photograph upon which the painting was based. I questioned whether any artist could commandeer the President’s likeness, and whether President Obama could stop the use of his likeness if he was so inclined. As discussed in my previous article, the answer likely depends on how “transformative” of President Obama’s likeness the work of art is.

A similar issue recently emerged in the context of political advertising created by the National Organization for the Reform of Marijuana Laws (“NORML”). As reported in the The Washington Post earlier this month, photographer Lisa Jack is upset with NORML’s use of her photograph of a young President Obama, taken in 1980 when he was a freshman at Occidental College. The photo taken by Ms. Jack depicts a teenaged Obama decked out in a Panama hat, coolly drawing on a cigarette (presumably of the tobacco variety).

NORML apparently decided that a young cigarette smoking Obama could lend support its marijuana legalization cause. Recalling a vintage 1960’s psychedelic rock poster, NORML used Ms. Jack’s picture as the centerpiece of its annual conference poster distributed to NORML members and sold to the general public. The original photo was shaded green, altered to make it appear that Obama was puffing on a marijuana joint, and placed amidst a swirl of psychedelic graphics, bubble lettering, and a marijuana leaf. Above the picture appears NORML’s Obama inspired slogan — “Yes We Cannabis.”

According to the Washington Post story, NORML readily acknowledges copying Ms. Jack’s photo for use in its annual conference poster and says its artist, Sonia Sanchez, made few alterations to the photo itself:

“With very little adulteration, she placed what appears to be a cannabis cigarette” in the president’s hand, [NORML’s executive director] said. But she made few other changes: Obama “almost made the photograph for us.”

Despite the admission that Obama “almost made the photograph for us,” when asked about potential copyright liability, NORML’s executive director told the Washington Post “our lawyers thought it was adulterated enough to comply with the fair use laws.” The question remains whether NORML’s lawyers were right.

As with Shepard Fairey’s “Hope” painting, a court’s fair use analysis of NORML’s poster would likely hinge on how “transformative” the poster is deemed to be of Ms. Jack’s photo. Of critical importance is whether the allegedly “transformative” use by NORML imbues the original Jack picture with “‘new information, new aesthetics, new insights and understandings.'” Blanch v. Koons, 467 F.3d 244, 253 (2nd Cir. 2006) (quoting Castle Rock Entm’t v. Carol Publ’g Group, 150 F.3d 132, 142 (2d Cir. 1998)). In Koons, visual artist Jeff Koons used a fashion photograph in one of his collage paintings to comment on “the social and aesthetic consequences of mass media.” The court found that his use of the photograph was fair use, emphasizing its highly transformative quality. The court explained that “[w]hen, as here, the copyrighted work is used as ‘raw material’ in the furtherance of distinct creative or communicative objectives, the use is transformative.” Id; see also Bill Graham Archives v. Dorling Kendersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) (finding that use of concert posters as “historical artifacts” in a biography was transformative).

Putting aside NORML’s likely view of the “new insights and understandings” to be gained through marijuana legalization, the NORML poster would appear to sufficiently “transform” the original Jack photo. NORML used the photo as “raw material” to create a communicative statement with 1960’s psychedelic aesthetics, and a new meaning and purpose than the original photo by Ms. Jack. Regardless of the popularity of NORML’s goal of marijuana legalization, NORML’s fair use argument is enhanced because of the clear political purpose associated with the poster. The more an accused infringer such as NORML can raise First Amendment arguments, the more likely its use of the copyrighted work will be deemed to be a “transformative” fair use. See generally Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (characterizing fair use as a “First Amendment safeguard” within copyright law).

Furthermore, Courts sometimes view a copyright holder’s unwillingness to license the particular use in question as weighing in favor of fair use. See, e.g., Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 805-06 (9th Cir. 2003) (Mattel unlikely to license artistic photographs of Barbie in absurd and sexualized positions). After learning of NORML’s use of her photo, Ms. Jack told the Washington Post:

These photos “are absolutely not to be used in this way. … I really made a grand effort to do this properly, and I’m very irritated. If I’d wanted these to be used for political purposes, I’d have sold them to Hillary years ago.”

Ms. Jack may be confusing a “political campaign” use by would-be president Hillary Clinton with a “communicative political use” protected under the First Amendment. NORML has clearly drafted the Occidental College era Obama in support of its underlying political cause to legalize marijuana. This is entirely different than a hypothetical use of the photo by Hillary Clinton during the 2008 presidential campaign to support a campaign argument that, unlike Bill Clinton, Barack Obama did in fact inhale. Although Ms. Jack’s may not approve of the use of her photo in NORML’s annual poster, as a practical matter, there may not be much that Ms. Jack can do about it.