W’s Portraits of World Leaders Are Not Infringing
Has W infringed anyone’s copyright in taking the sources of his portraits from Google Images, including images owned by the Associated Press? To answer this question, you have to ask what original authorship did W take from the copyrighted works? From what I can see, other than his subjects’ faces and their generic, centered, full-face compositions, W took very little. And none of those things are proprietary to a photographer. Moreover, most of the photos look like they were taken from press conferences, where photographers do not control the lighting. At the risk of alienating my photographer friends, what then is creative about the original works? Yes, the photographers may have set the shutter speed, F-stop and ISO, but if that’s all they did, the subject is centered, and they didn’t control the lighting, then there is a strong argument that the photographs are not sufficiently original to qualify for copyright protection–not that many courts would have the courage and integrity to find so.
But we don’t even need to go that far. Assuming that the photographs are sufficiently original, again, what did W take that was original? Perhaps I don’t understand photography well enough to say what is original about a centered, full-face portrait taken in what is probably a flutter of quick shots without controlling the lighting. But it is not fair to put such snapshots on par with the work of Christopher Williams or Cindy Sherman. We owe it to ourselves to ask first what is original about a photograph. Here, I would argue that given how ham-fisted W’s portraits are, it is difficult to argue that he took enough of the originals even to support a claim of substantial similarity. If the portraits were photorealistic, the substantial similarity would probably exist, but the paintings’ amateurishness precludes it here.
But even if we assume substantial similarity, the use is fair on the four factors: (1) This is not a commercial use, and even if you try to argue that it is commercial to some degree, a single painting is vastly different than a photo mass-reproduced in a newspaper or advertising campaign. (Courts need to do better at recognizing this enormous difference in the context of unique objects–the Second Circuit in Cariou v. Prince seems to have done so, but not explicitly.) (2) Further, the underlying works are closer to fact than fiction, and there is a strong public interest in allowing people to make artwork based on existing images of world leaders given how difficult it would be for someone who doesn’t work for the New York Times to take such photographs. (3) And again, W has taken little if any original authorship. (4) Finally, I don’t think anyone would argue that someone might buy a W portrait instead of a reproduction of, say, the original AP photograph. The two things serve entirely different aesthetic purposes–one politically newsworthy, the other arguably humorous to just about anyone other than W’s nuclear family. Yes, you could argue that W is usurping the photographers’ market to license work for use in unique artworks, but as I’ve argued elsewhere, doing so would largely eviscerate the fair use defense for artwork and at negligible economic gain to photographers.