In 2008, artist Shepard Fairey created the now-iconic "Hope" poster, (1) a closely cropped image of presidential candidate Barack Obama, composed in geometric forms of red, white, and blue. The Hope poster was wildly popular with Obama supporters, selling thousands of copies. (2) Proceeds from these sales were used to produce thousands more posters, which were given away for free. (3) After Obama's election, the original work was acquired by the Smithsonian Institution's National Portrait Gallery for its permanent collection. (4)
The Hope poster was created using a reference photograph of Obama. (5) In 2009, The Associated Press ("The AP") claimed copyright ownership of that photograph and sought to obtain licensing fees and royalty revenues from Fairey for its use. (6) Those initial efforts failed and ultimately led to litigation. (7) The AP claimed copyright infringement, and Fairey raised a fair use defense. (8) At the heart of that defense is the issue of transformativeness, a key factor in those infringement cases in which protected works are used as raw material for the creation of subsequent works. Copyright doctrine accommodates transformative new works because, rather than merely superseding the original work, the subsequent work alters the original with new "expression, meaning, or message." (9) Evaluation of a new work's transformative value traditionally requires an examination of the new work and the transforming artist's process of creation for evidence of authorial purpose, process, and activity. (10) As with many postmodern pieces, however, the traditional transformativeness analysis does not favor Fairey's Obama posters. Copyright law--stubbornly clinging to romantic ideals of authorship and originality as the exclusive grounds for protection--appears unable to acknowledge the social value of Fairey's work.
In this case, evidence of the Obama posters' social value is all around us. The Hope poster was not only popular with Obama supporters, it was also a lightning rod for his detractors. As discussed in Part III.C.3, Fairey intended the image to convey a message of idealistic leadership potential, and for most supporters this was precisely the meaning derived. But for other, differently situated audiences, the meaning of the work was quite different. These various interpretive communities engaged the Hope poster as a symbol of socialism, communism, religious idolatry, anti-Americanism, and elitism. In essence, the effect of this single work was to cultivate multiple meanings, each of which can be seen as a new form of expression. The transformative nature of the poster is evidenced in mash-ups produced by Obama supporters, who took Fairey's intended message and made it their own, producing both pro-Obama and anti-McCain or anti-Palin derivatives. obama detractors did the same, alternating both image and text to produce mash-ups that reflected their own interpretations of Fairey's work. This is precisely the transformative effect that should be accommodated through the fair use doctrine. Under conventional fair use analysis, however, these dramatic transformative effects are nearly irrelevant.
Fair use is perhaps the most contested doctrine in all of copyright law. (11) New technologies that not only enable increased audience engagement with cultural works, but also facilitate the use of these "raw materials" to produce new works have made fair use more controversial. (12) At another level, these technologies have made visible an audience, not of passive content consumers, but of active participants in discourse around and about those works.
This Article presents an argument for an expansion of fair use based on social semiotic theory, rather than on theories of authorship or rights of autonomy of subsequent authors. Instead, it employs a theory of the audience linked to social practice. The Article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often independent of the creator's intent. …