Fair use is far less shapeless than Wu suggests. The starting point for fair use ought to be "what does the law say?" 17 USC 107 does not just adopt Story's principles; it sets out four factors to be considered:

(1) the purpose and character of the use, including whether such use is of a 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The big one that weighs against Fairey, and which Wu omits from his article, is the commercial nature of his work. He didn't use the AP photo for art school; he used it for personal profit. That's not dispositive in itself; as Wu notes, the 2 Live Crew case found fair use in spite of the commercial purpose, because the other factors weighed that way. But Fairey's case is a lot tougher than 2 Live Crew's, it seems to me. 2 Live Crew only used a small portion of the original song, while Fairey recapitulates almost all of the AP photo. They produced a rap that sold in a very different market, while the AP probably has a decent argument that its photo was sufficiently iconic that it could have been the subject of T-shirts and posters that instead went to Fairey's image. The nature of the original work is mixed here; the AP photo is neither wholly factual nor wholly artistic.

I don't think Fairey's case is frivolous by any means; there are many good arguments that he can make. But I do think that the legal analysis is much simpler and much more tilted against Fairey than Wu suggests.

Additionally, I think Wu gets the law wrong regarding the Abu Ghraib photo. There's no fair use issue with regard to that photograph because the law expressly states that works produced by US Government employees in the course of their duties are not copyrighted.

Moreover, I don't think it's correct to say that there is a blanket fair use exception for news reporting; the Supreme Court, in the 2 Live Crew case, gently mocked that notion. Indeed, the primary way the AP makes money is in selling its news reporting, as I understand it.

Interesting question whether the Abu Ghraib photos were taken by US government employees in the course of their duties. But, of course, a question that will only be discussed over dinner tables, as it were.

*** the AP probably has a decent argument that its photo was sufficiently iconic that it could have been the subject of T-shirts and posters that instead went to Fairey's image. *** Uh, no.

*** Moreover, I don't think it's correct to say that there is a blanket fair use exception for news reporting; the Supreme Court, in the 2 Live Crew case, gently mocked that notion *** Uh, no they did no such thing. In fact, the law itself, quoted in the decision, says: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, NEWS REPORTING, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

jj64:

*** Moreover, I don't think it's correct to say that there is a blanket fair use exception for news reporting; the Supreme Court, in the 2 Live Crew case, gently mocked that notion *** Uh, no they did no such thing. In fact, the law itself, quoted in the decision, says: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, NEWS REPORTING, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

In fact, the "Pretty Woman" Court did indeed "gently mock" the notion that there is a blanket fair use exception for news reporting. The portion of the opinion that does so is also sufficient answer to your quotation, which begs the question of which uses for purposes such as criticism, comment, news reporting, etc., are "fair" uses, as not every one is:

"The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and non parodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law."

Yes, but if 100% of the song 'Pretty Woman' had been copied, instead of just a portion as in that case, one could expect a far different outcome. Nothing justifies taking ALL of an author's work and then hiding behind 'fair use'.

PREACH!

Wu's article is a mess. They should have found a lawyer to write it.