On buttons, posters and Web sites, the image was everywhere during last year’s presidential campaign: a pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE.
Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, and has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.
The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Mannie Garcia on assignment for the AP at the National Press Club in Washington…
The AP’s director of media relations, Paul Colford, said in a statement. “AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”
“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s lawyer, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School…
A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images. He released the image on his Web site shortly after he created it, in early 2008, and made thousands of posters for the street…
The image will be included this month at a Fairey exhibit at the Institute of Contemporary Art in Boston and a mixed-media stenciled collage version has been added to the permanent collection of the National Portrait Gallery in Washington.
Which side are you on?
BTW, the tilt of Obama’s head is slightly different in the poster, from the original photo. And some of the other details have been changed too. So it’s likely the photo only served as a reference for the artist. And it wasn’t Photoshopped straight from the original. Since this was taken of an historical event, and not posed in a studio. The photographer can’t really claim unique ownership of the image. But whoever can afford the most lawyers, always effects what’s considered right and wrong.
The untalented asshole that used the photo without permission should pay through the nose for the privilege.
So what, the AP has a copyright on another person’s face looking up at this particular angle?
What if I go and take a pic of Obama doing this exact pose – who gets the royalty check on “derivative” works then? Does the first person to take a pic of the Grand Canyon get royalties every time someone paints a picture of the Grand Canyon?
No question, it’s ART!
Did Campbell’s sue Warhol?
I am a commercial graphic/artist and happen to know Shepard. The law states that you only have to change an image 30% to use it without recourse. Same in music with sampling. We all learn this in art school. If it goes to court it will be up to a judge to figure out if the image was change that much. That being said Shepard has made no money off this by selling rights or by use. He has made fine art pieces based on the piece and yes you would look at the suit between campbells and warhol which campbells dropped the suit later for various reasons?
#33 whaap
Run on sentence in the passive voice. You are talentless poster.
Petty.
#36 memesisai…when you get a chance go here http://copyright.gov/title17/ and see if you can find that 30%. It’s a fabricated number. As an example, I can’t take your ten chapter book, replace three chapters, and call it mine. Try something like this Obama photo with R2D2 and watch how long it takes for a George Lucas smackdown. 😉
#34 brm…the Grand Canyon can’t be copyrighted, but descriptions and photos of it can be. It’s hard to prove violations of your own such copyright unless you’ve taken a unique and/or readily identifiable photo.
Several myths regarding copyrights are being presented as fact here…see: http://templetons.com/brad/copymyths.html
Obama was candidate for president, this type of material was used for the promotion of the candidate in a presidential election.
Clearly fair use.
It may have been derivative of a copyrighted photo, but there is an American Flag in the background so this isn’t a picture of private citizen Obama but public citizen Obama.
Link trouble…try this:
http://templetons.com/brad/copymyths.html
[Please drop the WWW from URLs as WordPress doesn’t display it properly. – ed.]
Hmeyers…Obama’s status is irrelevant. Official White House photog photos are automatically public domain once released because the Fed Gov can’t own copyrights. But, photos made by any member of the press or anyone else are absolutely copyrightable.
His status is very relevant because under normal circumstances this would be clear-cut copyright violation, instead an argument about whether it is or isn’t fair use is ensuing.
Who knows …
One legal assessment goes like this:
http://photoattorney.com/uploaded_images/Garcia-v.-Fairey-Fair-Use-Analysis-797877.jpg
Without making any unschooled attempt to apply fair use doctrine to this case, there are still some valid observations that can be made. One thing that immediately stands out is that only the angle and pose from the photo suggest any connection at all to the image. The graphic itself is such a heavily stylized derivative that the main attributes that we normally associate with professional photography were not carried over from the photo to the image.
One of the shames of this situation is that if the artist had predicted these potential legal problems, he could easily have taken some photos himself with a cheap digital camera, or picked a photo that was more clearly in the public domain. From the photo he used, it’s clear he knew the pose he wanted, and he could have imbued an image derived from a similar photo with the same artistic qualities that have made this image resonate so widely with the public.
Simply looking at the famous Obama image that Fairey created, there’s little I can see to suggest that he started out with a photo taken by a talented professional photographer.
The law aside, here is my analysis:
36. memesisai beat me to it, though I was going to refer to my understanding that industrial designs could be changed 30%.
But that said, there are plenty of big, established stock photo libraries whose bread & butter is made by selling photos. How many times have I shied away from just oh-so-easily helping myself to their luscious photos and then photoshopping them enough to then drop them into a cool and groovy demo reel or commercial production. Wouldn’t that save me the trouble and expense of traveling the world and paying photographer’s and graphic artists! Actually, I’m sure those photo businesses would be all over me like a rabid dog.
Maybe I could call it art or political analysis… then just show me the money.
RBG
#31
Thank you, I would take a bow but with this lot I am worried what would happen to me when I bent over.
#32
We have gone back to the old days of ‘trial by combat’. We don’t have two burly blokes with swords whacking at each other in a field, oh no no no…. we are civilised, we have 2 law teams sparring by distorting laws in a court room.
Same thing, bigger better practiced paid team wins, nothing to do with justice or who is right, examples are endless. This case is just one.
46 hazza. Sheesh, far be it for a main-stream straight-arrow like me to agree with an anti-establishment rabble-rouser like you, but I do. I mean, about the bending over thing.
RBG
#18
So who owns the copyright of my post here that keeps being distributed to others without compensation to me?
Huh ?
Steve, you’re talking on a party line. Hang up.
RBG
HMeyers…the artist and his potential fair use of the AP image is one thing. Unlike many here seem to believe there are no simple rules for fair use, such as 30% or non-commercial copying or educational use or some other other BS. Your linked chart implies that. It also demonstrates that the artist is on shaky ground.
But, photos of the prez are NOT automatically public domain. Otherwise, why would AP even bother?
Obama is a public figure and its NOT a private photo – NO royalties to Obama
The painting/grafitti is INSPIRED by the photo. NO royalties to AP. If he had photoshopped the image then maybe AP would have a case…
@ #2 (myself)
“Even an Idiot can see that the picture is “inspired” by the picture and not edited/photoshopped.”
I must admit that I was wrong after reading the comments. Idiots are just idiots, they clearly cant see anything obvious… Not even their own stupidity..
What’s the problem? The angle of the head is slightly different and the expression in the eye is different. It is not a copy of the photo. Close but not a copy.
“private photo”? What the hell does that mean? There’s no such thing!
filo you’re right one one point, Obama cannot own his likeness such as Madonna, John Lennon or MLK Jr. But. Others can absolutely make photos of him and copyright them. For example if he sits with Annie Leibovitz for a session, she owns those photos and you can’t use them without her permission. End of story.
Derivative work IS a copyright violation. There is an exception for parody, but you can’t just take someone’s stuff, tweak it a bit (30%?), and call it your own.
Wow, the level of copyright ignorance in this thread is astounding!
The photographer is the original copyright holder, and apparently he approves of the derivative work.
End of story.
Folks, research “Fair Use” – our lawyer has. This is clearly a “tranformative work” as outlined in the Fair Use doctrine. There is a famous case involving Grateful Dead posters being used in a book about the history of the Grateful Dead. Do some Googling, you should be able to find it (Graham vs Kindersly Publishing). You can give speculative examples here if you like or offer your opinion, as long as everyone reading this blog understands that most of these comments are just that.
Li, are you sure? An employee doesn’t own work created for the employer. There seems to be some dispute between AP and the photog regarding ownership, but that’s incidental to what I’ve been writing.
@ #54 (myself)
A private photo in this case is a photo taken and owned by the Obama family themselves… There are thousands of trillios of these photos in the world…
#27, hazard
1. How many tabloids pay Britney “royalties” …
None. As a news item that is “fair use”. Anyone may comment on it too. BUT, you still need permission from the photographer or videographer to use the pictures.
2. Similar enough? You retard.
Similar enough to what?
3. Anything created by an artist is copyrighted by the artist.
Not true. Coldplay is currently being sued by two other artists for stealing their work. The work still has to be original in order for it to be copyrighted.
4. The photo was inspiration, the work was wholly and solely a creation of the artist.
The photo was the basis of the artwork. It doesn’t matter if the final work was the original photo “photoshopped”, or hand drawn. It took the essential elements of the original picture for its own.
5. Do you even know what the term “commercial use” is?
I do. Do you? The posters were sold. That makes the art a commercial enterprise. Profit is a totally different thing.
6. My mum could not give a pinch of cock sucking monkey turd what sort of language I use on a blog.
It sounds like your mummy has a cock sucking monkey turd for a kid. I assume she is very embarrassed by you too.
I strongly suggest you read Mr. Baggins link for the common myths about copyright. You will learn that nothing you claim is correct. Well, maybe the part about your mummy doesn’t care how her cock sucking monkey turn kid behaves.
#41, Mr. Baggins,
Very good link. Once again I bow to your superior talents my good sir. If I wore a hat I would remove it and sweep it before in my humbleness.
🙂
Bob…good point, but fair use and “clearly” don’t fit together except in some narrow situations. Check out HMeyers #43 link, a nice visual reference. Your use of a work without permission has to address the four categories and only a judge ultimately decides what’s OK. Transformative alone is not enough, nor is any other single criterion. There’s a pile of case study on this, some of conflicting, especially with digital media.
Lawyers readily spin fair use to mean anything, depending on who’s paying the bill. 😉