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?
Fusion…You’re welcome. That link has long been in my favorites. For anyone who is a teacher/trainer, here’s another one:
http://education-world.com/a_curr/curr280a.shtml
Copyright and fair use are probably two of the most misunderstood topics on the ‘net.
#62 Key words “on the net.” A lot of misinformation can be found on very convincing looking websites – just because you read it on the web doesn’t mean it’s true. You are correct in that there is never anything “simple” when lawyers are involved. You seem knowledgeable on this subject – do you have first hand experience or have you just looked around on the web?
Bob, I create IP every day. My employer develops tech training materials, we have to be clean with our info sources and watch how customers use our materials. Teachers can be the worst: “Information is free!!!!” and “I can copy anything for non-profit education” or “I’ll give attribution then it’s OK” and crap like that. So we’re fairly well-informed regarding the basics.
A bit of shaky discussion:
I would guess that, in the end, Fairey might be completely off the hook.
If the crux of copyright is “have you hurt the commercial value of the property for the copyright holder?” then Fairey will surely be able to prove to any reasonable man that he has not. In fact, the opposite by a long shot.
But that determination could only be made now and certainly not at the time of Fairey’s original copyright violation, perhaps making all the difference.
Meantime the copyright holder has had to take time, trouble, $, & anxiety to launch a legal action – which certainly contributed to the photo becoming famous.
So then hypothetically I would ask: If Fairey’s artwork had immediately become famous, bringing immediate and monstrous riches to AP,and let’s say nothing to Fairey, could AP still have technical grounds to sue for copyright violation?
Would a judge ever accept that in spite of these riches, perhaps AP theoretically had their own plans to make even more off the photo?
Can someone show me how “commercial value” is not the only key or test for launching a successful legal copyright action which, I would guess, requires at least a wronged party looking to be made whole again?
RBG
[Duplicate comment deleted. Please don’t double post! – ed.]
Now there is also this issue of “moral rights” that I know to be a big thing in countries such as France in Canada. For example in Canada a number of decades ago there was the precedent-setting case where Toronto’s old Eaton’s shopping mall wanted to “express” themselves by tying colorful Christmas bows around the necks of twenty or so Canada goose sculptures suspended from the ceiling of a large open space. Can’t do that said the courts – it violated the original artists “moral rights.”
Has Fairey’s enhancements violated the original photo-artist’s “moral rights?
RBG
RBG: the wiki on fair use includes some US case history.
http://en.wikipedia.org/wiki/Fair_use
BTW…reading that wiki it appears the artist may have some precedent on his side–so long as he doesn’t foul up any other factors. Hmm.
I’d be really really surprised if there isn’t already a well-established case law regarding art that uses pre-existing material due to art of people like Warhol and Lichtenstein. This guy takes a lot of stuff from other people but he clearly isn’t the first person to do that. Surely there has to be some artist out there who has been sued in a situation like this.
#68, jc,
The goal of any artist is NOT to get sued. Reading so many of these posts and, as Mr. Baggins has so correctly said, there is a lot of ignorance out there.
For instance, there is no magic “30%” rule. If you take some music and drop it to a lower key but keep all the notes, that is not an original song but would far and away pass the 30% mark. Or change half the chapters in a book. The rest of the book would still be significantly similar to the original.
A better marker is how much of the copied work captured the essential elements. In this picture the tilt of the head and shadow are so significantly similar to call it a derivative. It is exactly those elements that made the photo and the same elements that make the poster.
As far as AP holding the copyright, many news organization buy the photo from freelancers. AP might be thinking they bought the picture while the photographer could be thinking he didn’t sell it. AP would want the copyright on the picture since it would allow them to charge every outlet that uses it a fee without the hassle of keeping track of every freelance photographer.
Obama did not give up the rights to his likeness when he became President. If this poster is being sold, Obama can ask for a royalty or even that it not be sold. He owns his likeness and you simply can not use someone’s likeness to sell products without their permission (and probably royalties). Fair Use for the artist would be creating the poster, but he can’t allow others to see it or gain commercially.
There have been several cases where likenesses of dead actors were used commercially. The estates sued and won. The estates still own the likeness and characters of those that were portrayed. You still need permission and to pay for commercial purposes.
A simple line would be, if it is derived from something else, it is probably an infringement. If it is a news story or commentary, it is fair use.
I would expect that a large news organization like AP would have contracted the photographer specifically for the shoot (if he wasn’t already an employee) requiring him to sign a full release as is standard for such shoots. He either signed “everywhere in the world in perpetuity” or he didn’t.
AP is not going to be without full ownership of such photos.
RBG
#71, RBG,
Large organizations will also buy photos from freelancers. More and more news services are going with freelancers and stringers over staff photographers.
I have sold some photos that way. They will usually send a contract along with the check that buys the picture from you if you cash the check. I always send it back and tell them not to print the picture then. Since by that time they will have inevitably already done so, they instead return the check and let you keep the copyright. To become a stringer for most news agencies requires you give up the rights to the photos but you get paid assignments.
Some pictures, and this is one, can reap the photographer serious money. It is, in my opinion, an excellent shot of Obama.
I’m sure you are correct for clearly unique photos especially with uneconomical-to-reach locations involved. But in instances like presidential photo ops and sites with easy access, certainly they would opt to use their own people.
Any organization that would dare use a photo without clear ownership is just begging for trouble.
For corporate use, reasonably savvy clients not only absolutely insist upon all-encompassing releases, they want releases from anyone who appears in the photo.
RBG
#73, RBG,
Most news organizations find it much cheaper to pay free lancers that actually have some pictures then to send one person and hope he gets a good shot. That gives the photo editor many more angles and locations from which to chose a picture.
I remember someone telling me back in the early ’80s that he was hired by a magazine to take pictures of a community Easter Passion Parade. He shot 7 rolls of film. He picked the best 40 and gave them to the photo editor as slides. He winnowed that down to seven pictures, and three made it into the magazine.
Today five photographers would show up and submit their best shots electronically to the editor. He would look through them and pick what he likes and then pay for the ones he used. If he doesn’t pick your picture you don’t make any money.
I’m sure you’ve seen pictures of the paparazzi trying to get that money shot of some celebrity. If they can get that one memorial shot, such as a pantyless Brittany Spears, you can earn a ton of money.
As I say: I’m sure you are correct for clearly unique photos.
RBG
In this case, AP contracted the photographer.
“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.”
CNN: http://tinyurl.com/cuo4c2
“I am Centurion trained and certified, and available for local, national and international assignments.”
Garcia’s web site:
http://tinyurl.com/cbeguy
RBG
“As the essential global news network, AP employs more journalists than any other news organization.”
“Headquartered in New York, but with bureaus across the world, AP photographers and editors work around the clock”
AP Jobs
http://www.ap.org/apjobs/index.html
It is fair use. IT is an interpretation of a photograph, (remember, parodies are considered separate entities of artwork from the original) IT is augmented over 30% (hello, non realistic painting), and is in a different medium. Now that someone in the design field has spoken, you kiddies can get back to playing xbox and porn sites
orangetiki
Feel free to read the rest of the blog.
RBG
#81, ron,
Actually, he is a Ron Paul supporter.