Obama poster in Australia: we still don’t have a transformative exception

Poster of Obama and the AP original on which it is based

The original Associated Press photograph of Barack Obama and Shepard Fairey’s “Hope” poster (compilation from NYT blog story).

(I originally wrote some of this content for EFA's submission (PDF) to the Department of Broadband, Communication and Digital Economy’s Future Directions review.)

In a major review of Australia's copyright law in 2005, the Attorney-General's Department determined not to introduce an open ended copyright exception like the US fair use defence. This decision resulted in Australia adopting some of the harsher measures from US copyright law without the corresponding flexibility that provides a balance for users and rights holders. This balance directly affects free speech and innovation – it is the balance between providing the incentive to create and reducing the barriers to create new works. If this balance is not achieved in either direction, both innovation and speech are likely to be greatly restricted in Australia.

As you may be aware, Shepard Fairey, the artist responsible for the powerful 'Hope' poster, has sued for a declaratory judgment that it does not infringe copyright in the original AP photograph that he used for inspiration. The Stanford Fair Use project is supporting the suit, and claim that:

There should be no doubt about the legality of Fairey's work, […] He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.

A major flaw in Australia's copyright regime, as compared to the United States, is that we lack an exception to infringement for transformative reuse of copyright material. In the US, transformative use is a factor in the four-factor fair use defence, and allows some latitude for innovative repurposing of existing expression. In Australia, our fair dealing exceptions limit unlicensed reuses of copyright material to a small number of allowed purposes. Innovative acts of reuse that are not able to be pushed into one of these categories generally require a negotiated licence, which is often not forthcoming or prohibitively expensive. Because the fair dealing provisions are so narrowly interpreted, a large proportion of new creative expression is inhibited by our copyright law.

So it would appear that Australian copyright law would essentially prohibit the unlicensed creation of this type of poster. It is hard to see the justification for this result. We see time and time again that copyright owners often refuse to license their material on reasonable terms. It is probable that this sort of poster has no adverse effect on the market for the original – it is certainly not directly substitutable. It does however, have a very positive effect on public discourse – this icon has proved to be one of the most powerful of the recent campaign.

We introduced a parody and satire exception to copyright infringement to create a space for some transformative works, but this is a clear example of important speech that simply can't fit within one of our purposive exceptions. It shows that there is something fundamentally skewed within our copyright policy if this type of speech – speech that engages individuals in a public political discourse – is not permissible.

I argued in my masters paper that we ought to introduce a transformative use exception into Australian copyright law. If we tried hard enough, I'm convinced we could come to agreement on a balanced exception that would prohibit mere repackaging but allow unlicensed repurposing of copyright material that is not directly substitutable for the original. As we argued again in the EFA submission to the DBCDE consultation paper, such an exception could introduce much needed flexibility in Australian copyright law and provide some additional scope for innovation without compromising the incentives to create original expression.