The Associated Press is on the wrong of a fair use argument again. It is actually going after artist Shepard Fairey for his iconic Obama poster, which it recently discovered was based on an AP news photograph by Mannie Garcia. The poster is clearly based on that photograph (see comparison at left), but this is exactly the kind of use of copyrighted works that is meant to be protected.
The poster is art. The image it is based on has been sufficiently transformed that even the AP did not know it owned the copyright to the underlying work until a few weeks ago. And Fairey says he hasn’t made any money from the poster, although others have. You can buy the image on posters, stickers, coffee mugs and T-Shirts, and copies of the poster signed by Fairey sell for thousands of dollars. Still, the AP is wants money from Fairey.
I’d link to the AP story describing the dispute, except that we’ve banned the AP for exactly this kind of behavior in the past. The AP has a history of making copyright infringement claims that push the boundaries of the law. Last year, it went after Websites that copied its headlines, even if they had links back to AP stories. (The AP syndicates its headlines to news organizations, that’s how it makes money, but using headlines as links is also common practice on the Web).
Fair use is under attack, and the AP is leading the charge. Artists like Fairey take copyrighted images and reinterpret them all the time. Many argue that is what art is. Fairey’s Obama poster certainly made a bigger impact on our culture than the original image, which he reportedly found by doing a Google image search. He is being represented by the Stanford Fair Use Project.
I hope he tells them to go to hell, because if this isn’t fair use, I don’t know what is.
Update: This gets worse. It is not even clear that the AP owns the copyright to this photo. The photographer, Mannie Garcie, says he was a temporary staffer when he took it and never signed the AP contract. In a Q&A with Photo News Forum, he throws doubts on the AP’s claims of ownership:
2) Where you either an employee, or a freelance photographer, as defined by their contract, for the AP when you took this image?
I was a temporary hire, filling in for a staffer at the AP. It is my understanding that I was neither a freelancer nor a staffer, but rather a temporary hire. I have never been an AP staff employee, and no, I have never signed an AP contract.
3) So, you own the copyright to the image?
The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.
I wish that there was a sort of Anti-SLAPP law for fair use copyright issues like this.
Anti-SLAPP laws are state laws on the book in like 30-ish states that provide a safety valve for defamation lawsuits against folks who are simply exercising their rights of free speech (SLAPP = Strategic Lawsuit Against Public Participation).
The idea being that when big bad Phillip Morris sues you for demonstrating on the street corner that cigarettes kill, you’re simply fold up shop and go home, rather than eat the expense of fighting the suit. Anti-SLAPP laws compel the plaintiff to demonstrate that they have a high likelihood of winning, by showing that . This before the trail ever gets to discovery and such (the expensive part).
Even better, there are SLAPPback laws that make it such that if someone is proven to have engaged in a SLAPP, they are compelled to pay legal fees for the defendant, and other damages.
I would love to see something like this for Fair Use issues, because at this point, you see a similar dynamic shaping up: a larger organization can see an individual because they have the resources to bring to bear, and in so doing, they chill fair use and the societal benefits associated with it.
Do you seriously think it is considered fair use to take a picture from a mainline news source, make some basic changes in Photoshop and then sell that as your own under the guise of art? What if the original had been on the front cover of Time magazine?
Then again, Obama is a public figure and the original picture is not all that unique or interesting.
He wasn’t selling the image.
He might have not sold it, but he definitely made a gain out of it which will result in financial gain. His name is now on every news website and I am sure that more and more people are interested in his other art. Overall, the publicity that he got from this is worth more than he would sell the image for.
His name has already been made famous.
Have you never heard of “Andre the Giant Has a Posse” with the tagline “OBEY?” There were posters, stickers, T-shirts and other paraphernalia that was copied guerrilla style and became ubiquitous.
By the way, haven’t you ever heard of Andy Warhol? He took the Campbell’s Soup can, Brillo Box and other copyrighted images and made an entire body of work from them. Appropriating images from news and other public sources is the domain of art, at least Pop Art, of which Sheppard Fairey is definitely a part.
@ Erik,
Your understanding of transformation is flawed. See Art Rogers vs. Jeff Koons. Turning a picture into a illustration does not constitute transformation.
The selling argument is flat as well because giving something away can harm the potential market for the copyright holder just as much as selling it.
Tom’s right – selling isn’t necessary to constitute copyright violation.
As for the “transformation” argument, I’m on the fence. While this clearly looks like the photo, it’s mostly because Obama (who is not copyrighted) is the subject of the painting, and he has that characteristic head-tilt. Who’s to say that it isn’t just as inspired by any number of other pictures;
http://tbn1.goo...arack_obama.jpg
http://www.topn...e-Primaries.jpg
http://www.topn...John.McCain.jpg
http://tbn1.goo...-335a011706.jpg
This is not my specialty, but it would seem to me that there is certainly an argument to be made that the amount of “transformation” of a picture of a public figure in a characteristic pose necessary to constitute an original, non-infringing work is less than the standard than Rogers vs. Koons would suggest.
Erick, there are conflicting reports about Fairey’s intention for creating the image in the first place. Some suggest that he was already using the photograph before being involved with the Obama campaign while others suggest that he used the photograph after being contacted by two individuals who were employed by the Obama campaign.
This is not fair use and I can tell you why point by point. However, in court each case is looked at on a case by case basis. However, I know enough about fair use, having been involved in the arts for over a decade, to tell you that at face value this is not fair use.
Plus, Fairey did profit from the poster and from the shirts… he may have passed all of that money on as a donation, but it does not matter what he did with the money after obtaining it. Profit is profit.
If you want to talk about fair use from the position of someone involved with the art community you are more than welcome to contact me. Fair use in art, for the most part, involves making a comment or parody about another image or artwork. Obviously, based on your article as well– the connection was lost. The dialogue between the two images was not established. Thus, it does not fall under fair use in my opinion. If we accept that view of fair use it would mean that everything is fair game under fair use and that is simply not so.
Furthermore, the majority of artists do not support Fairey’s view of fair use. As Senior Editor of myartspace I receive emails from concerned artists all the time. Many artists feel that copyright is constantly under attack. Why should someone work on a painting for months if they know that someone like Shepard Fairey will scan an image of the painting, make a stencil over it, and call it his own. That is free use more than fair use and the end result could greatly harm the creative community in the United States and elsewhere.
Your understanding of copyright is somewhat flawed.
The AP, or the photographer, owns the copyright in the underlying work.
The basic analysis is correct, but you ignore that Fairey, or whoever made the stencil-painting, does own the copyright to the stencil-aspects of the derivative work, b/c those are clearly not in the original photograph. The AP does not have a copyright in those aspects of the work, nor does it have any legal basis for doing so…it is merely asserting its copyright over the underlying image which forms the basis of the stencil.
Erick’s problem is that he doesn’t understand copyright law at all.
Not really overlooking anything–copyright also covers the right to derivative works, and the U.S. Copyright Office makes it clear you can’t claim copyright to a derivative work you create unless you had permission from the original copyright holder. So in fact, Fairey wouldn’t own the copyright to his “art” at all in this case if it didn’t fall under fair use (and I don’t buy for a second that it does).
Also, I “love” the way folks are acting as though his rip is “art” without giving the same consideration to the art of photography. I know plenty of professional photographers, and not a one would be OK with this. Copying something belonging to someone else and making relatively minor changes that add nothing of value or any truly new elements is not art – a change of medium isn’t enough to qualify it as such. Otherwise I could print up some poems on pretty posters with new fonts, give them away, and make the same claims–doesn’t work that way.
Yes, this is a great example of fair use. Fairey never sold the image. I think the AP needs to reevaluate their priorities.
Is ObeyGiant a nonprofit organization? Does it have non-profit status? Not that I’m aware of. So he did profit from selling Obama prints and merchadise on his site. What he decided to do with the profit does not matter. Profit is profit. I’ve also read that he sold exclusive limited rights to the image to Urban Outfitters. Again, profit is profit. It is great that he decided to donate all the money to a cause he believes in, but that does not make it right as far as copyright is concerned. Your position suggests that it is OK to infringe as long as you donate the money to something. Furthermore, it appears from past articles that Fairey did profit off of some of the original images before working directly with Yosi Sergant and the Obama campaign. So either the media does not have their facts straight or Fairey and others are covering that fact up.
Except he isn’t selling it, and he drew it by hand using the photograph as a guide.
The thing is, no one gives a damn about the original picture. It is Fairey’s illustrated interpretation that everyone fell in love with.
Anyways, the angle of Obama’s head tilt is different. I’d argue that the artist just imagined this pose.
This is so stupid. AP’s trash and has been so for a long while.
The portrait is a stencil portrait. Meaning that aspects of the portrait were made by using a stencil that was created over a printed off version of the photograph. If I turned my computer sideways TechCrunch would look sideways on my end. Does that mean I can post a sideways view of TechCrunch articles under fair use? No.
not only is he not selling it, he didn’t just “make some basic changes in Photoshop”, he’s one of the most famous and innovative silk screen and printmaking artists (those are old fashioned “use your hands” style mediums, look ‘em up).
Sale is irrelevant under copyright law; it’s a matter of distribution (whether or not for profit).
WHO he is also is irrelevant; copyright is about the work, not the author. Otherwise, Steven King could get away with plagiarizing some unknown author’s work on the basis of being Steven King.
What matters are the changes he made.
Sheppard has a video on the making of the Image. He use TWO sepparate photo graphs and drew new guides in pencil. From that he cut his screens by hand.
The use of two source images and the manual recreation of the image certainly constitutes fair use. This is no reproduction.
Public figure has nothing to do with copyright. that’s “publicity rights”. Also, interestingly enough, just because President Obama is President and a public figure, does not mean he gives up his publicity rights, the rights to commercialize his image.
And when was this video put out? In his first few interviews about the poster he said he found a random photograph, scanned it, and made a stencil over it. So when was the video showing how he made it released?
And this is exactly what’s wrong with us – god forbid someone might paint a portrait of a public figure or celebrity even. Unthinkable.
should be interesting to see the outcome. It is APs photo and the guy has made some money off of it…
on the other hand- its a hand drawing- its not like a filter has just been applied…
That’s ridiculous. The lawsuit should be dropped.
For some reason, Andy Warhol comes to mind.
say the secret artist’s name and divide a hundred dollars
I’d love to believe that this news coming into the mainstream would infuriate the newly empowered electorate.
Can those people that feel like we have ‘a new hope’ take it local, make the calls to their representatives and stay as involved in politics as is necessary for government by the people to succeed?
It was originally thought that the original was taken by Reuters—they would have been much more chill about the whole thing.
I think these types of fair use claims will only rise as companies think they even have a *chance* of getting some extra money in the bank.
Link to reuters story re “We thought it was our photo” http://blogs.re...-reuters-photo/
Has Fairey said the AP photo is the one he used because that Reuters image looks MUCH closer!
@Facebook User: That is a poor argument. No way AP makes short-term money off of this. Where would it come from? The legal fees for this case are probably more than this Shepard Fairey is worth.
It’s more about them making a stand, but really it’s a bad move. Why would you sue someone who created the single most popular artistic image in America in years? It makes about as much sense as suing puppies and cute little bunnies, at least from a public-opinion perspective.
Legal issues aside. I have always found that poster creepy. I always find myself thinking, “Commrade Obama”.
I support the ban on AP, Fair use is fair use, Fairey interpreted the photograph in his own style, it’s not like he auto-traced it and called it his. Artist interpret the world around them, images, buildings other art, all contribute to their expression. Fairey took a mediocre image and made it into a great icon, AP is just jealous and greedy. they should be ashamed!
nice painting ,forever a classic. who would not be jealous of its success. if ap wins hopefully they will split any monetization 50-50. a painting is worth many times more when the artist is behind it.
JudgeLocator.com – justice served
Oh hey look it’s the locator spam guy again.
SpamLocator.com – you’re annoying
…annoying… more like nauseating
I third that, this guy is pathetic.
It was great art. Leave them alone!
cooljobsalways
http://tinyurl.com/7uj5ay
Hey Erick, You can toggle between the original Garcia photograph and the Fairey poster to see exactly how they line up using Idee’s image recognition technology: http://blog.ide...graph-stand-up/
Thank you, thank you, joe spake for actually having a sense of art history. Andy Warhol is *exactly* the correct example.
The AP’s photo of POTUS Obama is no more protected from fair use than is a Campbell’s soup can or a photo of Marilyn Monroe, both subjects of Warhol’s art.
Actually, the works created using photos of Monroe or James Dean or Elizabeth Taylor are probably even more germane, because like Mr. Obama, they are public figures.
Copyright law was different when those photos were taken.
The problem is that 1) the painting is very similar to the photo and 2) the artist admits basing the painting on the photo, which is per se copyright infringement.
Fair use only comes into play once copyright infringement is proven; fair use is DEFENSE to infringement (if there’s no infringement proved, then there’s no need to prove fair use).
Fair use has several defined categories, which the painting/whatever may or may not fall under. Mere transformation is not enough; in a nutshell, some new communicative aspect (such as critique, commentary, satire/parody, teaching, analysis, etc) must be added to the COPIED ELEMENTS. (Infringement only applies to the copied elements, not to the elements added in the new work.)
I leave to you the exercise of determining how the graphic transforms the COPIED elements of the original phot.
I’d say to “comment” was the purpose of Fairey’s piece. His use of color as a second order signifier can be argued as comment on Obama’s patriotism as opposed to views which labeled him unpatriotic. The poster is a political statement, no longer an objective photograph.
I hope Fairey wins! AP is just trying to get more money. I doubt that Fairey hasn’t made any money off of it-but who cares, it’s his work of art.
An artist is not allowed to paint and then SELL someone else’s photograph without permission!
This is the way it’s always been! Nothing new here, sorry bloggerz!
Sorry, Randy. As long as the artist sufficiently alters the image in such a way as to create a “new” work, his doing so is protected by copyright law.
Sure, except this is not a new work. It’s a painting of a the original portrait, duotone. No changes were made.
It’s been altered. The original was not a “duotone” [sic], but a full-color photograph. The artist isolated blocks of color, creating a completely new image. The highlights, midtones, and shadows are original to the new piece, as are the colors and the overall effect of the image.
Simple.
LOL. You mean he painted it? Yeah, we’ve established that. Still illegal, because he didn’t alter the work, nor got permission.
Hey, perhaps he should have just painted his own photograph? Gosh, JG, what *is* so special about THIS photograph?
“Oh, well, it’s ….. …. …. … …… …” and “……”, you say. “It’s special.”
Yes, exactly! The original’s got something special, je ne sais quoi.
And that something special belongs to the photographer, NOT the artist who ripped it off.
You’re actually laughing?
In creating an artistic work sufficiently removed from the original photograph–in color, details, effect, contrast, etc–he’s made a new, completely original image. “He didn’t alter the work”? Of course he did. He didn’t take a copy of the photograph and simply throw “HOPE” at the bottom of it. He could’ve made his “iconic” poster from any number of photographs of Obama [and he did]. It’s what he’s done to it that makes it special. Nobody would be buying prints of the original photograph. It’s not poster-worthy.
All I’m saying is that Fairey’s poster is completely legal, under copyright law. There is some gray area in said law, but this is a pretty black-and-white case.
That being said, I’ve never particularly enjoyed Fairey’s work–and perhaps for the same reason you seem to believe his work is illegal. But it is legal. He’s protected, inasmuch as he makes the work “his own”.
AGAIN, the image of Obama’s head was one of three heads in the shot. This was not a portrait to begin with, it was a documentary photo at an event. George Clooney is in the original photo as well. Simply by cropping the image so drastically it is significantly changed. And while I admit that alone is not enough of a change to warrant fair use, the argument that SF’s work is a reproduction or copy of that particular photo is moot. It’s not the entire image. So let that go.
Next, consider the addition of the word “HOPE” into the composition. Would we be arguing about this image if SF had used it in a negative light? No. People who make images, shirts, posters etc with GW Bush’s image, taken from some media source, with negative slogans on them are not given this kind of attention. That would be considered “protest” and therefor covered by the first amendment. And so one could argue that the positive message on SF’s work not only is a specific political sentiment, (1st ammnt) but changes the intent and content and concept of the original image well beyond what fair use dictates.
If you disagree with SF’s right to produce this image, good luck in the future when designers and artists aren’t allowed to use an image of anything to do any work. And I thank you kindly to send Bill Waterson a big fat check for that sticker on your truck window depicting Calvin urinating on a Chevy or Ford logo.
Do some research.
JG, take away the stencil work and what do you have? Fields of color with Hope. The stencil that Fairey made over the photograph plays a vital role in the image itself. Without the stencil outline the image would fall apart. In a sense, the stencil holds the image together.
What is odd is that up until now the press and Fairey reported these posters as being stencil portraits. Now some people are reporting it as being a drawing by hand or as a painting involving no stencils. Looks like someone is covering their tracks maybe.
That is Obama’s signature look – I did a two second google image search and there are ton of them in this same style. He has a good profile and that is the way he looks.
http://www.bold...times_photo.jpg
http://upload.w...the_Primary.jpg
http://i93.phot...-obama-bw-1.jpg
Withering dinosaurs like AP that can only think of fighting for their kingdom using lawyers instead of trying to innovate are so painful to watch. It is a hand drawn sketch of a popular profile which has been stylized. It is just ridiculous.
Cheers – Eric
Yea the AP definitely needs to take a chill pill. You could literally find hundreds of pictures that resemble Fairey’s sketch.
Erm… it is a stencil portrait. get your facts straight. Plus, as mentioned already, Fairey and a gallery representing him have both admitted that he used the Garcia photograph based on articles that have been published about it.
Actually, this article –> http://blog.ide...graph-stand-up/
Pretty much proves that that particular photograph was used. No question about it.
Can’t wait to see how little of any “winnings” the AP gives the actual photographer. I’m betting ZERO.
Obama himself has publicly thanked the artist. Can the AP people even prove it’s their photograph this was taken from [it could honestly have been taken by any guy near the photographer]?
bsides, this guy has also made posters in other poses. i don’t think AP stands a chance
From what I’ve read both Fairey and a gallery that represents him have stated that the photograph Fairey used was indeed the Garcia AP photograph of Obama. I’m sure that will come up in court if it gets that far.
The could be the year we see fair use defined in a way it has been lacking. One one side you have this potential case and on the other you have photographer Patrick Cariou filing against Richard Prince and Gagosian Gallery for copyright infringement.
i wonder what the president will say on the issue.
it’s his face in anyway
Ban the AP, greed can only get you so far.
Good artists copy. Great artists steal.
-Pablo Picasso
Immature poets imitate; mature poets steal.
-T. S. Eliot, in Philip Massinger, in The Sacred Wood (1920)
i seriously think the AP is out of line… it is there picture that he painted off of but it wasnt there thought. Fairey came up with this new creation of the origional picture making it his own. but he will probably lose because it is a David vs. Goliath trial… which is really screwwed up because he will just end up getting screwwed again and again. i am an artist myself and this makes me not want to put out any work anymore if this shit is just going to happen. GO FAIREY GO.
am I the only one who noticed the misspellings and the broken link at the end? Whats up Erick?
How can the AP prove he “stole” the image…? It seems to me you could probably find hundreds of pictures of Obama with his head titled….. Seems like the AP is going after the artist for no good reason.
http://blog.ide...graph-stand-up/
That article pretty much proved it.
All you need to do is a layover in photosho and bam, proof.
This whole thing is crap, the AP needs to get over themselves.
How long till an Andre The Giant photographer comes after Fairey for the unfair use of that photograph?
I think you mean “in the wrong” or “on the wrong side of”
I love the AP overall but they seem to be stuck in some quixotic war they’ll never win.
I agree that AP is not being smart by pursuing the matter in this way. But I’m not sure they are necessarily wrong either. Since there’s probably not a lot of money to be had in this instance, their biggest benefit here would be to make a public point about AP photos getting ripped off. This could be done without trashing AP’s brand goodwill by making a no-cash deal with Fairey where he acknowledges their copyright and AP allows usage. AP would look like a good guy but would still gets media coverage about the issue of their stuff getting ripped off.
So AP is dumb to not take the high road but Fairey was equally dumb here. He’s an experienced artist and should know better. He probably could have licensed the photo (or a similar one) for a couple hundred bucks at most (possibly only a couple dollars). If you’re an unknown amateur artist then that might be overkill but if you’re a very well known pro artist like Fairey, you cover your bases up front on everything you do because the odds of it getting exposure are high.
I’m a strong advocate of protecting fair use but in this case the issue isn’t quite as clear as I’d like. Looking at the hover-swap image between the photo and art, you can see that they are identical in terms of position, angle etc. It looks to me like the art might be largely the result of applying Photoshop filters to the photo. Legally, it matters how much originality Fairey brought to the final piece.
I’d prefer that a high-profile fair use test case like this be on something that was hand-drawn based on a photo. It seems to me that there’s less original contribution in moving parameter sliders than in hand drawing. Obviously Fairey applied new colors and had to mask the background and remove it, so there was some hand work done. If the case proceeds to trial it may come down to how much originality is enough in this particular instance instead of a more useful precedent around using copyrighted photos as direct inspiration for art.
He was selling the image. Check his site. Therefore AP can demonstrate Damages and it directly infringes on Mannie Garcia’s ability to make a living.
Opinions of AP aside, it is the right of the photographer to make a living creating his own original images and photos. AP is acting in their own interest but also inadvertently protecting the rights of Mannie Garcia and others. What this amounts to is…. Finally someone calls out Shepard Fairy for what he is, a copy and paste photoshop hack. It is sad that popular culture has latched on to this guy calling him an Artist and holding him in high regard as if what he does is some how original. It never was original, not the images he churns out and licenses to be sold at Malls and certainly not the medium in which he has used Photoshop and Illustator vector outlines. I can stand outside a local Junior college and find 100’s of students who are more talented and technically better at using Adobe software. He is not a graffiti Artist, he could not free hand something to save his life, he can only ride on the back of the talented and copy and paste.
Except that nobody wants Garcia’s image – they want the one that makes a political statement.
originality has nothing to do with this. read the copyright law for more details. The questions are whether or not Fairey had access to the original image (check – he admitted willfully taking the miage from a Google image search); and whether or not his verison is substantially similar to the original (duh!). Generally, most fair use (or as it is known in the artistic rip-off artist community, F.U.!) apply a multi-part test (see other posts here) with an emphasis on whether or not the infringer profitted from the use (Fairey DID sell many copies of this and, at the very least, has garnered a carreer-making amount of great publicity out of the unauthorized usage). Even applying the other fair use factors, this case is a no brainer – Fairey will lose bigtime. Don’t be surprised if he settles this quickly and quietly to save his reputation.
(linkback) Fair or Foul? AP goes after Obama poster artist for copyright infringement [VOTE] – http://www.thri...rfail.com/bef90
Also from the Garcia interview, for context of Erick’s excerpting:
“I honestly believe that AP is doing its best to resolve this situation in a fair way. I mean fair with Mannie Garcia, fair with Shepard Fairey, and all of that. Basically, I hope that all turns out well with all parties concerned.”
Also, Fairey’s Web site (http://obeygian...headlines/obama) says the HOPE prints “will be distributed by the OBAMA Camp as an awareness campaign.” Prints using the same photo but the word PROGRESS were sold out direct from Fairey’s site.
http://en.wikip...Derivative_work
Wow. Lot’s of opinions and very little fact. Let’s clarify a few things:
-This doesn’t have anything to do with “Fair Use”. Here is the fair use clause in the Copyright Act:
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 determining whether the use made of a work in any particular case is a fair use the factors to
be considered shall include—
(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 copy- righted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copy-
righted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
- Just because the work is derivative does not mean the original copyright holder gives up copyrights to the original work.
- He was selling this image on his website ( I would have bought one but they sold out.)
-Whether he profited or not in not germane to copyright violation.
I’d recommend anyone who has a strong opinion about this actually read some of what the U.S. copyright laws say:
http://www.copy...le17/circ92.pdf
Any Copyright attorneys want to weigh in on this.
I believe you are correct. This is not a fair use issue. The issue is who owns hte copyright to the poster. Is it sufficiently different sfrom the photo so that it is not subject to the underlying copyright to the photo? That is a legal question.
Good post. People who are ignorant of copyright law are confusing the issues. Fair use is not an affirmative right, but rather a defense to a charge of copyright infrigement. Fairey was selling, or was otherwise benefitting from his admitted, willful theft of the image that was used as a the basis for an unauthorized derrivative work. The owner of the photo has a great case here and I predict that Fairey will lose, despite having some strong fair use arguments. I think the parties will settle, as Fairey won’t risk looking like an asshole who rips other artists off.
Right. I think there are some fair use affirmative rights; education, archiving, etc. But surely not in this case.
My guess is that there is more here than we are hearing about. Sounds like Shepard got the photo from the campaign, and thought he had permission to reproduce. Also, it’s not clear who owns the rights to the original. The whole situation does make the AP look petty though.
Keep in mind that this time it was an AP photograph. In the past Fairey has infringed on artworks that are protected by copyright. Such as the poster by Rene Mederos that he infringed upon and quickly settled out of court over. He not longer sells the Cuban Rider shirt because of that.
I was at the opening of Shepard’s new show at the ICA in Boston on Tuesday. On display was a personal letter from President Obama thanking Shepard for his contribution to the campaign.
I suggest the AP sue Obama and have him recall the letter and write a new one for them!
Thanking him for his official work that was done unofficially alongside three former campaign media consultants and the director of communications for the campaign. Yeah, I know… it is a mess.
My oh my. YES WE CAN… sue anybody for anything nowadays!
First of all, the issue of ownership of the copyright is up for debate. Just because she was a temp doesn’t necessarily mean she can’t be treated as an employee.
Second of all, people commenting here obviously don’t understand copyright law. Here are the four factors that are considered to determine if it was fair use.
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
That being said, if he has permitted the public to use the image for profit, he could be liable, even if he didn’t get any money. A copyright grants the copyright owner and no one else the right to copy a work.
On the other hand, if he has never given permission even if he never sued anyone, he might not be liable. Interesting legal questions.
Is the AP trying to make money, sure but don’t all news organizations?
“Just because she was a temp”
Mannie Garcia is male.
Most of us get copyright law… we take issue with the law is the thing, and it should be challenged, in my opinion.
I’m don’t think this comes close to a derivative. The photo and drawing aren’t at all the same, except their both of Obama.
Even if Fairey used it as a point of reference for his hand-drawn one I still don’t see it as a copyright issue because there’s no originality in it: it’s just a snapshot of Obama. Are they claiming anybody who draws a photo of the US flag they snapped a photo of is making a derivative? If they win this do they realize the can of worms they’ve opened on their own work (ex: being forced to clear copyright for every item in every AP photo before publication).
That’s the issue… the media and corporations can use whatever imagery they want… its the little guy who doesn’t get to do the same. It’s stupid and insidious.
I’m shocked! When is this going to end? I understand that companies need to protect their assets, but this is too much! It would be great to have some kind of universal fair use policy that could end this excessive protection…
As an artist and artist rights advocate I do think there needs to be a universal fair use policy– but not in the way that you are thinking. Rights under fair use are limited for a reason. I think it needs to be made more clear that fair use is not meant to be a catch all for using the work of others. It is not just companies– artists need to protect their work.
Oddly, on the Charlie Rose program a couple nights ago Fairey clearly stated that the poster was based on a photo that the “Obama campaign had rights to use.”
Did Mannie offer up the photo for use by the Obama campaign before Fairey even created the illustration?
Fairey made two other posters from images provided by the Obama campaign, which contacted him after he made this poster from the AP photo.
The Editors, the whole story has contradictions. Fairey has said in some articles that he contacted the Obama campaign and others it is stated that the Obama campaign contacted him. At the same time, Yosi Sergant says he never mentioned “art stuff” to other Obama campaign workers, but other articles stated that Fairey created the ‘Hope’ poster with guidance from Obama’s director of communications. So it is had to know what is fact. I do know that Progress and Hope appear to have used the same exact portrait as the second version of Hope, which as I recall Fairey had to do because of legal issues– which were not mentioned at the time– concerning the original Hope poster. Something tells me that Fairey new all along that eventually he would be exposed and it seems like he and a few other peope are stepping lightly.
Sorry for the typos. Need coffee.
AP is one of the worst companies ever to exist and we should ALL ban their photos!
The AP are idiots. How could they possibly prove that the artist’s work came from that particular photograph? Is that the only photo of Obama in existence taken from that angle?
A gallery representing Fairey told Garcia that his photograph was the photograph that Fairey used to make his stencil. Apparently Fairey has also admitted that it was indeed the Garcia photograph.
I am a graphic artist for a large ad company. There is no way my legal dept would ever allow me to do what Garcia has done with this AP photo without permission. They would have told me to locate the owner and see if it can be licensed. Based on my experience this would have cost less than $300.
Its not a matter of is it legal or can I do it under fair use, its just the rule of ‘cover your ass’ so what is occuring now with AP vs Garcia just never happens.
AP should sue Obama for using a picture of himself in his own campaign
I suppose we should be glad Campbell’s Soups didn’t sue Andy Warhol over use of their image in his classic pop-art works circa 1960! I’m tired of big organizations like AP holding a gun to the head of others in an effort to quash creative efforts.
This argument is a red herring. Andy Warhol painted the soup can. He didn’t make a derivative work of a copyrighted photograph. Campbell’s can’t claim copyright on a soup can. They could claim “trade dress” or trademark violation if the Campbell’s logo, but those don’t fall under copyright law and so were most likely not violated by Warhol’s original painting.
They didn’t sue him because in the past people didn’t get that bent out of shape if someone represented something they found in their kitchen cabinet.Try it these days and see if they don’t try to sue you for infringing on their trademark – particularly if they don’t like your angle.
Bill B, does that mean you are upset at Shepard Fairey for telling Baxter Orr to cease-and-desist when Orr created a perfectly legal– under fair use — parody of Obey Giant? Fairey is a hypocrite.
“wrong of” should be “wrong end of”, no?
“Yes We Can” t-shirts are still available though
http://bit.ly/1EVJXw
I <3 the AP. What a bunch of tools. I mean really? They need to chill out. Thanks TechCrunch for covering their abuses of the law. I always get a good chuckle.
This is NOT Fair Use. If it was a one time fine art Painting/Poster well then maybe. Possibly. But it is like music sampling. Yes maybe nobody cared about the original photo and maybe they did but Fairy used it as his basis for his “poster.” When a musician samples another recording and releases it commercially, the new artist must get permission and/or pay a one time fee or % royalty.
I’m tired of those who feel the original photographer has no rights to his original creation. Even if you hate AP who is the photographers representative, who have to protect the original creator.
When you include an old film clip in your new motion picture, you get permission and pay a fee.
Yes Fairly created a more interesting “version” of the photo, adding his contructivism take to it. but even Fairy has gone after artists who have copied his look and ran with it.
one more thing.. I despise this new attitude (over the past ten years or so) where people feel they have rights to everything for free. From using other peoples artwork to downloading musician’s work for nothing and watching TV shows and films on line for free.
If you were the creators of these things and made your living from them, you might feel differently. Next will you steal meals from restaurants and so on?
I completely agree…sort of. The flip side of that coin is that, counter to our founding fathers’ views on copyrights, our government has basically put in place, via extensions to the copyright acts (Sony Bono, etc.) a system of perpetual copyright. Artists who create new works should retain the rights to benefit from them. At some time though, it is of greater benefit to society, if those works become public domain. At this point it has been stretched to somewhere in the neighborhood of 95 years.
And the copyrights are sold and exercised by
corporations and generations of families long after the original artists are dead.
If the copyright laws of today were in place when Disney was alive, there would be no Snow White and the Seven Dwarves.
Technically you can do a parody of Mickey Mouse under fair use and it would be legit. Anyways, a work of art is protected by copyright the moment it is created and remains protected by copyright for about 70 years after the artist dies. At which point the copyrighted material becomes public domain. The reason it is protected for 70 years or so is so that the direct family of the deceased– spouse, children, grand children — can continue to profit off of the work and also help to make sure that that the work is used in a way that the deceased artist would approve of. So in a way it allows the artist to provide for his or her family after death and allows the family to help establish the legacy of the deceased. So basically anything older than 70 years is open to public domain. However, photographs of artwork by musuem officials are not public domain– the photographs are technically protected by copyright. Which is why most museums will not allow you to take pictures of the displayed art or if they do they often will not allow tripods– they don’t want you to have a marketable photograph of the art.
Forgot to mention this… so technically some of the original Disney cartoons might be up for grabs– however, re-recordings of the originals are not. In other words, unless you can get your hands on the original film and make a copy you most likely would not get away with selling recordings of those first cartoons. I’m sure they keep the original films under lock, key, and guns for that very reason. Hope I’m being clear… this new set up makes it difficult to see what all I’ve typed.
That’s great… except that these days, corporations are extending copyright to 200 yeasrs with extensions and have even taken copyright-free material out of the public domain and copyrighted it, including works that are hundreds of years old.
oooo and you can create a parody of Mickey Mouse or technically any popular cartoon character to your heart is content. That falls under fair use because the public will be able to make the connection upon viewing your parody. For example, people will know that you are make a parody or social comment about Mickey Mouse if you draw him snorting a line. They will know that it was not created by Disney and will know that you are commenting on in regards to society.
Actually the Sony Bono Copyright Extension Act
extended the terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978 was increased by 20 years to a total of 95 years from their publication date.
And the last time sobody did that, Disney sued and won.
So, what is the status of the AP boycott?
Is my blog the only one still doing this?
the president stands for change, but scum sucking lawyer assbags are in the way. DOWN WITH AUTHORITY!
Forget about your dislike of AP and lawyers. One artist lifted from another artist without asking. We called that stealing when I was kid.
http://www.art-...Obey/index.html
check that!