Katyal and Peñalver: Shepard Fairey a Necessary Altlaw

My two good friends, Sonia K. Katyal and Eduardo M. Peñalver, authors of Property Outlaws, have just written a lengthy article applying their notion of the intellectual property outlaw to Shepard Fairey’s use of the Associated Press’ (or Mannie Garcia’s) Obama photograph.

Katyal and Peñalver’s article is quite timely, and perfect for those looking for a counter-argument to my blog post, Are We Really Headed Toward Permission-Based Art Making? I want to note that my article focuses on (and at this point limits itself) to visual art, for I believe that the mediums of film, video, and music dictate a different fair use application and analysis.

Nevertheless, they make an argument for the “Altlaw” benefit(s) in testing the fair use doctrine and what that testing means to artistic creations.

Fair use cases necessarily begin with the very kind of unauthorized uses that Fairey engaged in.  If no one were willing to engage in risky, unauthorized uses of intellectual property, then the law of fair use would be doomed to stagnate.

Katyal and Peñalver also question a “permission-based” system:

But if artists limited themselves to using images only when their uses were specifically pre-authorized by copyright owners, then countless artistic creations would never come into existence[.]

I agree. However, I do think that pre-authorized or permission-based structures are not necessarily always devoid of value (aesthetic or financial).

Their article raises questions which are not easy to answer, and they do raise a crucial issue which continues to occupy my mind: do we really want to establish an artistic space where artists wait for others (artists and “non-artists” alike) to create content so that they can then use this “found” content without fear of infringement?

Good food for thought, and I welcome any thoughts or questions. Definitely read their article, Introducing the Altlaw: The Shepard Fairey Obama “Hope” Poster Controversy, via FindLaw, here.