Copyright law: artists vs. the press

I am writing this post in response to the new found legal troubles that street artist Shepard Fairey finds himself in with the AP. Shepard Fairey became a household name after creating his marvelous HOPE and Progress art pieces that went viral and played such a major role in this past election. Now they might cost him in court.

I should start by saying that I am not a lawyer. However, I have read up a little on copyright law (most notably from the book “Electronic Highway Robbery” by Mary E. Carter) and I have been in contact with lawyers about copyright, patents and trademarks. So with that background and what I consider to be common sense, I have reached the following conclusion.

News organizations such as Reuters and the AP (the press) should not be fully covered by US copyright law, at least when it comes to art.

Why? Well first, let’s examine the copyright law.

To quote Electronic Highway Robbery by Mary E. Carter:

What can be Protected by Copyright?

Section 102(a) of the Copyright Act states:

Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

The basic requirements that a work of art must meet to qualify for copyright protection are that:

– It must be original. The artwork must be an original.
– It must be creative. The artwork must show at least a minimum amount of creativity.
– It must be fixed in a tangible medium.…

My argument hinges on the part of the law that says “mediums of expression“, which Ms. Carter refers to as “creative”.

Press photographers should be excluded from this category. They given special access to the President of the United States, not for “creative” purposes or a means to “express” themselves, but to inform the public.
In other words, the press acts as our eyes and ears receive information from the President because our real eyes and ears cannot legally be in attendance. Not every Joe blow with a camera has the privilege of gaining such close access to the President. In fact, it is my understanding that the press even accompanies the President on Air Force one.

The only reason that press photographers have the privilege of being so close to our politicians so that they can snap those close up shots, is because they are licensed for the purposes of serving and informing the American public. If that was not the case, then I and half the rest of the country could (and would) grab the Nikon or Canon, head to Washington, and take a front row seat at the next Obama press conference. In that context, I honestly could take “creative” pictures or use my photos as “expressions”. After all, they are my photos, my camera, so I can do with them as I please and I have no obligation to our nation at large.

But what’s not fair is to say only special licensed photographers can gain close up access to the President, and then turn around and treat their photos as art. These photographers are not there to make art. Again, if they are, then I should also be given access. I should have been there when the man shoes were thrown at Bush, so I can “express” how I saw it with my photos. I should have been there when Obama was meeting with all of the governors for the first time, so I could snap shots of Palin’s first facial expressions when meeting the President who “pals around with terrorists” and isn’t from “real America”.

I could take much more artsy photos than what comes out of the AP, guaranteed.

So do not tell me that the same copyright laws that protect Mickey Mouse (a true creative work), such that I cannot just draw up my own Mickey cartoons and sell them on DVD, also protects an AP photographer’s photos when they are only licensed to serve & inform the American public.