Last week marked the end of a long standing legal battle between the Associated Press and artist Shepard Fairey over the latter's "Hope" poster of President Obama. Although neither side was willing to concede its legal position, the fact that they choose to settle rather than let the courts decide says a lot about the current state of copyright law. Simply put, no one really knows where they stand.
Copyright laws were initially designed to protect every "original" work that constitutes an "expression". The statutory definition is difficulty applied, however, in cases like that of Fairey & AP, where it is unclear whether a subsequent work is "transformative" (i.e. permissible) or merely derivative (i.e. infringing).
As such, the courts have often employed the notion of creativity to differentiate between works that merit protection and those that don't. Much like beauty, however, creativity is in the eye of the beholder and thus far has produced an inconsistent body of case law depending on the judges' artistic preference.
In light of all this uncertainty, the choice of Fairey & the AP to cut their losses, split the profits and move on makes a lot of sense. What's worrying is the growing incapacity of the current copyright regime to address this type of issue in a way that offers practical guidance to those involved. Maybe it's time to rethink things...
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