Archive for February 16th, 2009

That Obama poster

Monday, February 16th, 2009

Hyperlinking off the reference to the new President, you’ve no doubt heard about the copyright infringement allegations Shepard Fairey‘s Obama poster¬†apparently based on an Associated Press photograph has generated.

Nic Suzor thinks this is unfair and shows why we need a broadly based “fair use” defence or a transformative use defence.

Now, this is a very important problem and I personally don’t have a problem with a broadly based “fair use” defence, but I wonder where Nic’s idea fits in in a world where authors have moral rights – which just happens to be the world Australians live in?

Now, I guess if you were more or less leftish (bit hard to know where on the spectrum Democrats in the US might fall anywhere outside the USA), you might well think favourably of both the poster and the photographer – who doesn’t seem to get acknowledged in the poster, but I may be wrong about that.

What would happen, however, if the photographer was strongly left leaning in principles or smitten with the President and the transformer used the photograph to make some sort of criticism of the President by putting him in that Bansky or the Rudd “homage“.

At the moment, the photographer might well be outraged and concerned that fellow Obama-ites might think less, very much less of him/her.

That seems like the very sort of thing that moral rights might well be designed to protect the author against.  Shostakovich famously successfully stopped the use of his music in some paen to Nazidom, at least in part because of the damage it would do to his reputation in his USSR homeland. And that is even without the droit de divulgation and the right to withdraw a work from publication.

Which policy would win out? ¬†Which should win? The “reasonableness” defence (here and here) might be open, but how does one apply it in this context?

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