Outside the Beltway

Yes We Cannabis

James Joyner
15

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Lisa Jack, who snapped this picture of Barack Obama in 1980 while they were students at Occidental College,

is a wee bit irritated that NORML repurposed it to create this poster:

Fair use satire? Or theft of intellectual property?

I’m not an attorney and intellectual property law is particularly complicated.  NORML is engaging in political satire, for which the courts have tended to grant substantial leniency, but also selling the posters for profit, which tends to limit fair use claims.

Regardless, it’s amusing that NORML has prominently placed a copyright notice on its creation.

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15 responses to “Yes We Cannabis”

  1. sam Avatar
    sam

    The “Yes We Cannibis” is kinda neat in a Peter Max sorta way.

  2. odograph Avatar
    odograph

    IANAL (one of the internet’s oldest acronyms), but I’d think Jack’s lawyers would have to prove a different classification, implied endorsement perhaps.

    Note also that it isn’t a satire of Jack’s work.

    If shoot a rugged landscape, you can’t use it just because you re satirizing the state of Colorado.

  3. PD Shaw Avatar
    PD Shaw

    I don’t know what the answer is, but I strongly hope Jack is wrong. The piece seems to be highly transformative and therefore fair use. Link

    But this situation points to the problems with the strong copyright position. Jack objects to the political purpose the picture is being put to, or that Hillary Clinton would have put it to. So we’re not simply talking about fair compensation to someone providing economic value, we’re talking about using the government to direct and control political speech.

  4. odograph Avatar
    odograph

    I agree that Copyright is way too broad in the US, but it is interesting to note that the European view is more about the creative rights of the artist, and less about just money.

    We’re a money culture, but there sure, it was “her” picture and her wishes would matter.

    (If it was me I’d allow strong Copyright to authors who claim it, but all works of any type would expire to public domain in 50 years.

    I have also supported the Center for the Public Domain, at Duke.)

  5. kth Avatar
    kth

    Strange poster, odd to contemplate who the intended audience is (other than stoners).

    As to the merits: there probably aren’t a lot of other pictures floating around the internets of a future President smoking pot. And that fact has a lot of political implications, or reverberations, to a lot of people across the political spectrum. To limit the use of the image would be to limit political speech, basically.

    The significance of this picture, it seems to me, is more as a reported fact than a work of art (or even a found iconic image). The rule ought to be like that for performing someone else’s song: you have to pay a fair price, but the songwriter has no right to stop you from playing the song.

  6. kth Avatar
    kth

    btw, actually not a joint, I find by RTFA. So that changes it a little: there’s not a shortage of pictures of Obama smoking cigarettes at various stages in his life.

  7. PD Shaw Avatar
    PD Shaw

    odograph, I think it would be more fair to say many European countries favor the first artist over the second.

    But ultimately there are some problems with photographic copyrights that are unique. This photograph is not valuable for it’s art. It’s the subject and the subject’s pose. It’s the access to Obama which contains the chief value.

  8. PD Shaw Avatar
    PD Shaw

    I notice this quote from Lisa Jack when her pictures were published in Time magazine:

    I’m not political,” Jack says, “(But) these are historic photos and they should be shared.”

    Obama: The College Years

  9. coyote Avatar
    coyote

    Clearly promotional and not fair use. This poster is not educational. It is intended to promote NORML. That this organization would do this without consulting the artist is wrong. Their self-interest clearly trumps their consideration of others, and I can no longer support them.

  10. Justin Levine Avatar
    Justin Levine

    Coyote – The fact that the poster has a “promotional” aspect to it in addition to the obvious political commentary does not necessarily negate fair use. Fair use can also apply in many contexts outside of educational ones – though who is to say that this poster isn’t also “educational” for those who are unfamiliar with the photograph?

    Fair use is a far more complex and elastic concept than you and others give it credit for. Anyone who claims that definitely isn’t a case of “fair use” is simply expressing a personal political preference – not a legal analysis.

    The unfortunate aspect of today’s fair use law is that nobody can say for sure if it applies in this instance one way or another until a judge decides it. That’s a bad system to adhere to where matters of speech are concerned, but that’s the current state of things unfortunately.

  11. wp3 Avatar
    wp3

    Unfortunately, Justine Levine hit the nail on the head. My gut reaction is that this is sufficiently transformative and is making a satirical social/political statement that would be less effective without using a picture where the current president looks like he’s smoking a joint (even though in this instance it is in fact a cigarette).

    But I could almost as easily see a judge go the other way on that one, since “fair use” is such a wishy-washy area.

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