Twice Adapted, Once Stolen
There are four criteria which a court may consider in determining whether a reproduction amounts to a fair use of a copyrighted work. The four concepts
are: 1) the purpose and character of the work—which looks at the transformation made; 2) the nature of the original work—which considers the protectability of the prior work; 3) amount and substantiality of the portion of the work used; and 4) effect on the market for the value of the copyrighted work. The importance and sufficiency of each point is flexible, and no one factor is uniformly more significant than another; different cases can dictate that different points are focused on.
In considering whether Mesfin’s adaptation was a fair use of the original photo, a legal analysis would likely focus on the first two criteria. That is, whether her work changes the original work in such a way that adds something new and tangible to the original photo, and also if there are parts of the original photo that are not protected. On these two points, the scales are tipped in Mesfin’s favor.
Her use of Schorr’s photograph shines a new light on the image of Obama, and undoubtedly involved skill and creativity. And while Schorr’s image is copyrightable, its protectability is somewhat limited to the positioning and lighting of the photo, since Michelle Obama as a person cannot be copyrighted. In this respect, while Mesfin did use the entire photograph, one could argue that her work incorporated elements of Schorr’s work that are unprotectable under copyright. And the fact that Mesfin created a digital work with limited commercial impact is also likely to weigh in her favor.
In contrast, Devins’s mural use is less likely to be considered transformative. Substantively speaking, his changes to Mesfin’s work are minimal. For all practical purposes, he has simply reproduced a digital work in a physical space. Devins claims
that he spent all of the funds raised by the GoFundMe, but it is unclear whether he took payment. Whether or not he garnered a commercial benefit from the placement of the mural may have an impact on his fair use defense, but it would not, on its own, compel the end result.
Given that Devins is an experienced muralist, it’s perplexing that something as basic as ensuring an artist’s permission would have fallen through the cracks. But with billions of images circulating online, determining a work’s true source can be difficult and the rules around reproduction murky. Although he originally saw the image in thumbnail form on Pinterest, we don’t know where exactly Devins obtained the full-sized image he adopted into the mural given how many times Mesfin’s work was reposted. And if Devins had simply shared the work to his own Instagram feed it would’ve likely gone unnoticed. Still, in creating the mural, Devins unfortunately, but perhaps unintentionally, crossed a very real legal line.