Miami Blog

The 2 Live Crew case has little to do with Fairey's. First, as you said, 2 Live Crew's work was a parody. Second, while impact on the market of the copyrighted work certainly is a significant part of the copyright analysis, in the 2 Live Crew case the Supreme Court DID not find that there was no commercial impact on Roy Orbison's song. Rather, the Court remanded the case to the trial court to for the trial court to determine whether there was a commercial impact.

But, most imporantly, Blanch v Koons, a decision of the 2d Circuit Court of Appeals case from 2007 addresses the real issue: is Fairey's work so "tranformative" of the AP photograph that Fairey's work stands as an original creation in its own right. I think there's no doubt it does. In the Blanch v. Koons case, in which Jeff Koons had used part of the plaintiff's commercial fashion photograph in a painting, the court put the issues this way:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use"