NORML Stops Obama Poster Sales

Posted on 8/12/2009 by Julia Dudnik Stern | Printable Version | Comments (0)

As first reported by The Washington Post last week, a Getty Images-represented photo of Barack Obama by former schoolmate Lisa Jack has been used on a poster produced by The National Organization for the Reform of Marijuana Laws without obtaining a license for the image. On Tuesday, a Getty Images spokesperson told Selling Stock that NORML has ceased selling the poster.

The 1980 photograph, which the poster places under the headline “Yes We Cannabis,” shows the current U.S. President smoking. NORML has characterized the use of the image as political parody, a pun on Obama’s campaign slogan. While the use of the image in this context—implying Obama’s approval of NORML’s political agenda, which is not the case—may pass First Amendment scrutiny, there is still the issue of copyright infringement.

Jack, the copyright owner, has told The Post that she did not give NORML or its graphic designer Sonia Sanchez permission to use the image. Last Friday, a Getty spokesperson confirmed that the photograph was not officially licensed. NORML has not only used the image for self-promotion, it also made the poster and other merchandise with the same visuals available for sale. Getty, the sole representative of Jack’s collection of Obama photos, told Photo District News that the stock agency was pursuing NORML for copyright infringement.

Discussions between Getty and NORML have been ongoing, and Getty has declined to offer further comment. It is not clear if this will escalate to legal action. Similarly unclear is who bears responsibility for the copyright violation: the NORML poster carries a Sanchez copyright notice, and NORML has asserted that the designer has claimed ownership of the artwork. It is not known which of the two had made the decision to use the Obama photo without licensing it, and whether the other party was aware of this decision—a hair likely to be split by the courts, if they are forced to decide whether the infringement was direct and willful, contributory or vicarious.

Many observers have likened this situation to the three-party lawsuit among Shepard Fairey, Manny Garcia and The Associated Press. Fairey’s fair-use defense is premised on degree of modification: the artist claims that his artwork has so substantially modified the Garcia original as to create an entirely new work of art in which the photographer has no rights. Whether or not this stands up in court remains to be seen, but Sanchez and NORML cannot make a similar claim. The NORML poster uses Jack’s photo without modification; the satire is contextual and is directed at the photo’s subject, not the work itself.

Copyright © 2009 Julia Dudnik Stern. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


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