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George W. Bush – Copyright Infringer?

George W. Bush – Copyright Infringer?

A copyright controversy has erupted over the noted painter and former baseball team owner George W. Bush. It appears as though his portraits of current and former world leaders are all based on pre-existing images found through Google searches. Has the ex-President committed copyright infringement, and is his work protected under the defense of fair use?

I write about fair use a lot on this blog. Click here for a recent post that also concerns photos of politicians. For more on the subject, stay tuned in the next few weeks for the debut of my next online presentation, “What Is Fair Use?”

OK, here’s a quick review. Fair use is a defense to a claim of copyright infringement. First, there has to have been an infringement – an unauthorized use of a copyrighted work. Then we can see if the defendant can successfully assert fair use as a defense to a claim based on that infringement.

Section 107 of the U.S. Copryight Act lists four factors to be considered when determining whether a copyright infringement is entitled to a fair use defense:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Again, the threshold question is whether there has been an infringement. To start, we have to establish that the underlying works – the photos of the politicians – are subject to copyright protection. Let’s take the Vladimir Putin photo above. It’s from Wikipedia’s Vladimir Putin page. Here’s the Wikipedia page about the photo itself. The photo’s “author” is listed as the Russian Presidential Press and Information Office. I know, that’s my favorite author, too!

The photo is licensed under the Creative Commons Attribution 3.0 Unported license, which means that it can be used by anyone subject to certain guidelines:

You are free:

  • to share – to copy, distribute and transmit the work
  • to remix – to adapt the work

Under the following conditions:

  • attribution – You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

So, presumably, President Bush was free to “remix” the photo, or adapt it into a derivative work (e.g. the painting shown above on the left.) However, from what I can tell, he didn’t provide attribution, so he may have violated the Creative Commons license.

Let’s assume that this photo is subject to copyright protection in the US, and, because President Bush failed to obey the terms of the license, he committed copyright infringement. Now we can move on to the fair use question. Going through the Four Factors, which I’m going to take somewhat out of order for reasons that will become clear:

Factor 2. The nature of the copyrighted work.

Photographs are certainly subject to copyright protection. However, given the nature of the photos, which are either officially authorized portraits or shots taken at press conferences and similar events, the amount of creativity and control imposed by the photographers was presumably minimal. Only those elements that are uniquely expressive would be protected against copyright infringement. This factor weighs in favor of the owners of the original photos, but only slightly.

Factor 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

More or less all of the original works (the original photos) were used to create the unauthorized derivative works (the paintings.) This factor clearly weighs against the President.

Factor 4. The effect of the use upon the potential market for, or value of, the copyrighted work.

I’d guess that President Bush’s paintings have little negative effect on the potential market for, or value of, the original photos. In fact, this controversy might actually enhance the original photos’ market value. In any event, the effect will most likely be marginal. Point for the former President.

Factor 1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.

I saved this for last because it’s typically the factor that is given the most weight by courts.

The purpose of President Bush’s use of the underlying photos was principally for personal artistic expression. They were presented as part of a solo art show “The Art of Leadership: A President’s Personal Diplomacy” at the George Bush Presidential Library and Museum in Dallas, Texas (I’m sure the choice of gallery was just a coincidence.) They’re for sale as part of a $20 booklet: the Art of Leadership Gallery Guide. That said, the products for sale appear to benefit the George W. Bush Foundation, a non-profit 501(c)3 tax-exempt organization, which is located at Southern Methodist University, a non-profit educational institution (they don’t make this all exactly clear on the website; I’m jumping to conclusions, so please correct me if I’m wrong.) My guess is that President Bush doesn’t stand to personally profit from the sales of the book or other revenue related to the paintings.

Recent cases have focused on the first factor and honed in on the question of whether the use is “transformative.” The state of the law seems to be that if a court finds a work to be transformative, it’ll qualify for fair use protection. From a recent case (cited in my blog post linked above):

Whether a use is transformative depends upon whether the new use “supersede[s] the objects of the original creation,” or instead, serves a new purpose…Even making an exact copy of a protected work may be transformative, provided “the copy serves a different function than the original work.”

Was President’ Bush’s use transformative? Did it place the original works in a new context?

I suppose one could argue that any use of a copyrighted work by a former President is transformative. It serves the purpose of communicating some information about a notable public figure. Here, the portraits are being displayed in a gallery – and sold in a book – that attempts to tell the story of international diplomacy during the Bush administrations. Fair use is all about free speech, and political speech is entitled to the highest level of protection under the First Amendment. Information about significant historical events, provided by one of the main participants in those events, is of great public value. Fairly bland photos of world leaders have been elevated to a context where they now figure in a discussion of major events during Bush’s tenure as President. Therefore, any rational view of this topic would lead one to conclude that President Bush’s use of the underlying photos was transformative and entitled to a fair use defense.

That said, speaking of “fair,” it would have been nice if President Bush had properly credited his sources. Even if attribution isn’t a legal requirement, it’s the right thing to do.

Finally, I can’t escape this post without mentioning Shepard Fairey’s famous Obama “Hope” poster, which was the subject of a lawsuit when it was discovered that Fairey had used as the source of his work a photograph of then-Senator Obama owned by the Associated Press. Unfortunately, this case provides an imperfect analogy, because Fairey pled guilty to evidence tampering, so we never saw a final, clean resolution on the merits of the case. This makes it challenging to look at the Fairey case for instruction on how similar cases would be adjudicated.

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