The Best Fair-Use Controversy Ever?

[WSJ_law_blog]

Fair-use cases are often a blogger’s dream, what with their angry celebrities, well-known (or at least visible) works of art, and strident accusations of theft.

But as much fun as J.D. Salinger, Woody Allen and J.K. Rowling have provided us over the months on the fair-use front, the following just might take the cake as Best Fair-Use Smackdown Ever. Click here for the WaPo blog post.

It hasn’t yet boiled into a lawsuit yet, but it’s got serious potential. At issue: a poster created by folks at the National Organization for the Reform of Marijuana Laws (aka NORML), which uses a photo of Barack Obama as an undergraduate at Occidental College, circa 1980.



The picture shows Obama puffing on a cigarette (of the tobacco type). People at NORML took the image, dressed it up a little to make it look like Obama’s puffing on some serious Early Pearly Maui (or something), and stuck it on their Summer of Love-inspired promotional poster for their annual conference. The message on the poster: “Yes We Cannabis.”

But it’s not Obama who’s taken his anger over the poster public, rather Lisa Jack, an Obama classmate back at Oxy, who took the picture. She reportedly had no idea the photo had been used until the Post told her on Tuesday.

“They do not have my permission,” said Jack, now a psychology professor in Minnesota, to the Post. These photos “are absolutely not to be used in this way. … I really made a grand effort to do this properly, and I’m very irritated.”

NORML Executive Director Allen St. Pierre didn’t seem to troubled. “With very little adulteration, she placed what appears to be a cannabis cigarette” in the president’s hand, St. Pierre said to the Post. But she made few other changes: Obama “almost made the photograph for us.” St. Pierre admits they didn’t get permission, but “our lawyers thought it was adulterated enough to comply with the fair use laws.”

But is it “adulterated enough to comply with the fair use laws?” The standard, a copyright lawyer tells us, is whether there was a “transformative use.” And that doesn’t necessarily mean the image has to be transformed — an image can remain exactly the same and satisfy fair use if the picture is framed in a way that sends a message. In other words, its “use” is transformed. “For example, a Nancy Reagan picture on the poster would send a parodic message,” he says. “This one is a closer call.”