You may be familiar with the Palin’s-head-on-someone-else’s-bikini-wearing-body Photoshopped image. I’m not sure of its actual provenance, but since I’m only using it as an example of my question, assume for the moment that it was done for commercial purposes, and was done by a non-affiliated person (i.e., not part of any news, political organization, group, etc.).
As a celebrity/politician, it’s probably safe to say that use of Palin’s image falls under fair use. But what about the girl in the bikini? Could she have a reasonable claim against the Photoshopper? What about the original photographer? Would it make a difference if the photographer was an amateur who posted to Flick’r or a professional photographer who was otherwise selling the image? What about future use of the image? That is, now that the original photograph has gained some notoriety (and assuming it’s use was unlawful in the first place), could a subsequent work using it as a parody of the initial coverage — such as pasting the World Trade Center tourist — fall under fair use?
Sorry to use a political example, but it’s how the question came up. Feel free to tweak the conditions, assumptions, and example as needed to answer variations on the theme.
As a politician, it could be used as a political piece, but not for advertising or profit making…then they’d need a model release just like anyone else.
Because the body is no longer identifiable, if the photo was taken on public property, the original model would have little ability to get compensation. However, the photographer would be entitled to royalties, and most likely copyright violation.
Remember, fair use is for non-profit, news, or satire. Commercial enterprise does not fall under fair use.
I was under the impression that satire that was commercial in nature could still sometimes fall under fair use, as shown in the ruling for Campbell v. Acuff-Rose.
Satire has traditionally been given fair use protection, since you can’t satirize something without some sort of use. Campbell vs. Acuff-Rose, however, was not really a fair use case. 2 Live Crew paid the proper royalties for the use of the song (all during the court case, they sent checks for payment to Acuff-Rose, who refused to cash them). Normally, if you do that, you can perform it. But Acuff-Rose still wanted it banned because of what they did with the song. The result was that you could perform a song with your own lyrics as long as you paid royalties, and the songwriters had no right to stop it.
Stated so baldly this is flatly false. Here are four factors relevant to fair use, from 17 U.S.C. § 107:[ol][li]the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;[/li][li]the nature of the copyrighted work;[/li][li]the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and[/li][li]the effect of the use upon the potential market for or value of the copyrighted work.[/ol]The first factor does not forbid all copying for commercial use; it merely states that non-commercial copying is more likely deemed fair. These are not the only factors, of course: A judge has leeway when determining fairness and when handing out damages. They do seem to hit the high points, though.[/li]
One of the big points not listed is whether the new work is transformative, as opposed to merely derivative. Obviously a transformative work (like a parody) is more likely deemed fair than a merely derivative one. (This has never substantially hurt Hollywood due to some odious loophole in 17 U.S.C.) Remember the true purpose of copyright law: [del]Propping up oppressive monopolies.[/del] Encouraging the creation of new works via [del]eternal[/del] limited-time monopolies and [del]unconditional[/del] fair-minded censorship of new works.
Copyright establishes two things, which I’ll take in turn:
[ul]
[li]Limited-time monopolies, where only Disney and licensees can distribute copies of their Peter Pan movie for a certain amount of time after the creation of said film.[/li][li]Fair-minded censorship, where the creators of new works are constrained from using Peter Pan in their own works without passing rather stringent tests that ensure their use of someone else’s copyrighted work is fair.[/li][/ul]These features are meant to encourage the creation of new works by ensuring compensation for the artists and their business partners (mainly via the first part) and by guaranteeing artists will have a solid chance to get their interpretation of their works into the public eye first (mainly via the second part).
Loaded? I suppose ‘monopoly’ and ‘censorship’ are scary words, but that is what copyright provides and it is incumbent on lawmakers to see these powers are not misused. The expansion of censorship is particularly worrying.
