Chicagoist: AP Claims Iconic Obama Poster Is "Copyright Infringement"

bob aganouj

Fri, 06 Feb 2009 11:11:04 -0600

I don't think this is anything new. http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/

oz115

Fri, 06 Feb 2009 10:36:08 -0600

The photographer SHOULD have lost - that was a photograph of the graffiti. It incorporates someone else's artistic work. Again with the Bean analogy, this is why people aren't allowed to sell pictures of the Bean. But, Fairey isn't doing that. It isn't a copy of the picture. I think what is getting Fairey in trouble is that he admitted to using the picture. It still doesn't make it a copyright infringement. Not only is this what I personally believe, it is my interpretation of the law. He didn't simply "take" the picture - he used it, if anything, as a basis for his own rendition of Obama. As others have said, there are differences between the two images beyond the color scheme. While I see your point, it simply should not stand to reason that Fairey infringed the AP's copyright.

jackson93

Fri, 06 Feb 2009 10:33:49 -0600

Profit is just one factor to consider when determining fair use. It is not the deciding factor.

jackson93

Fri, 06 Feb 2009 10:26:50 -0600

You'll have to ask him. Maybe he wanted to avoid trouble who knows. As far as I know this the only time he was successfully sued for copyright infringement - considering most of his works were based on copyrighted images or objects, this is remarkable. Campbell's sued him as well, but they dropped their lawsuit when they saw how his work was actually benefiting them. Warhol's work gave Campbell's free publicity much like Fairey's work is giving AP publicity and is actually increasing the "value" of the original work, not detracting from it (this by the way is an element of fair use). My point is that according to your ideas of fair use and copyright there are museums full of art by countless artists that are violating copyright. Fair use exists to give people the room and tools to express themselves creatively and to use works for educational purposes. Warhol's and Fairey's work are perfect examples of fair use and why fair use is an important legal principle.

BlueFairlane

Fri, 06 Feb 2009 10:09:19 -0600

Again, the issue isn't the transformative use of an image for the enrichment of society, which I do believe was Fairey's original purpose. It is the fact that people--not Fairey, but others--made money off it, which is outside the protection offered by Fair Use. The big question in my mind is whether AP can hold Fairey liable simply for creating the image, or if they will have to go after those who profitted. I have spent far too much time searching -ist archives for a story I think I read on LAist a few months back, which I think correlates. If memory serves, a photgrapher had taken artistic images of graffiti, which she then placed in a show. Through her photographic process, she altered the medium, the angle, the method of presentation, and other factors, but she did not credit or seek permission from any of the graffiti artists. During her show, she sold many of her prints, making a profit in the neighborhood of six figures (I don't recal the exact number). The graffiti artists sued, and she was forced to close the show. I don't recall the outcome of the lawsuit, or whether it was even decided at that point. So, assuming my memory of the post is not faulty, would you say Fair Use should have covered the photographer?

BlueFairlane

Fri, 06 Feb 2009 09:54:05 -0600

So why did Warhol settle out of court? If his altered reproductions of the orginal image made the image his, why didn't he press the matter?

Rob Christopher

Fri, 06 Feb 2009 09:46:48 -0600

It's called Fair Use, and the AP don't have a leg to stand on. According to the case Campbell v. Acuff-Rose Music, Inc.: [If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses. As DailyKos says, "How the AP can argue that use of this picture hasn't been transformed by Fairey to offer 'new information, new aesthetics, new insights and understandings' is beyond comprehension."

BlueFairlane

Fri, 06 Feb 2009 09:42:45 -0600

But the key is that this isn't about what's fine as far as you're concerned, but what's fine as far as the law is concerned. Copyright law does not allow the copying of other people's work, regardless of whether you change the medium, regardless of whether you change certain aspects of the original. It still is using another person'd work. And again, this wouldn't be as much of an issue were it simply a matter of artistic license, but as I've said, people have profitted off this. As such, AP deserves compensation.

oz115

Fri, 06 Feb 2009 09:21:09 -0600

Again, I think it all depends on how much he used the photo. Seeing the photo, and making an image based off the photo, is fine as far as I am concerned. Even if he had taken the picture, and photoshopped it up - which I don't think he did - it still might be okay. Even though he saw the pic, and based his work off it, the AP shouldn't be able to say that is their picture. It's too strict of an interpretation to say otherwise.

jackson93

Fri, 06 Feb 2009 09:16:32 -0600

Blue, It absolutely is debatable. Yes he admits to using the photo for inspiration, but he significantly altered the content. By making changes to the color, angle, and media used, he transformed the contents of the photo into a new and distinct work, with a different intent and message than the original work (which is a factor in determining fair use). Let's think about Warhol. Warhol used other people's photographs (for which he did get sued at least once and settled out of court) and products (campbell soup cans, brillo, etc), but transformed them into something else. Artists use copyrighted images and objects all the time in their work. One of the reasons behind fair use laws is to prevent copyrights from smothering artistic endeavors, which is exactly what the AP is doing.

BlueFairlane

Fri, 06 Feb 2009 08:05:32 -0600

This isn't really debatable, as Fairey has admitted he used the photo. If Fairey wanted to take a similar photo himself, that would be fine. Or if he wanted to use a similar photo with permission of the owner--say, the campaign, which he in fact did do--that also would be fine. No, the AP does not hold copyright on all similar photos ... just that one. Which by his own admission, Fairey used.

oz115

Thu, 05 Feb 2009 23:38:02 -0600

I have to disagree with you, BlueFairlane. Yes, it's the same pose and angle and the guy even admitted he based his work off the AP photo - but that doesn't mean he violated AP's copyright. Does the AP have a copyright to all pictures of Obama in that pose? Does the first guy to take a picture of The Bean from a certain spot get a copyright on all pictures like that, and paintings like his picture? Of course not. The AP's copyright is for that one picture, and nothing else. This isn't even the same picture - yes, same angle, pose, based off it, etc. But Fairey transformed it into something else, and that is why the AP's claim is bogus. To be clear, I think Fairey loses some originality points for cribbing off the pic, although that does not make him into an infringer.

BlueFairlane

Thu, 05 Feb 2009 22:21:24 -0600

Regardless of how complicated the process Fairey uses may be, he still is basing his work off an existing photograph without permission of the individual who took the photograph. The process does not make the work his. Nevertheless, to be clear, I agree that Fairey would have a good case were people not profitting off the work. It's irrelevant whether Fairey himself has profitted. I would think the AP would be better off going after whoever is making money off the work rather than Fairey himself, but I think they'll get traction with this one.

jackson93

Thu, 05 Feb 2009 20:43:49 -0600

BlueFairlane, Whatever anyone thinks about Shepard Fairey's work, he does not just run a photo through photoshop. His work tends to be stencil and paint based. More importantly, if you really look closely at the two images, there are a number of minor differences (like the angle of Obama's head)in addition to the different colors and backgrounds. Besides just think of all the artists (Warhol) who appropriate or are inspired by other images. Also, there are specific characteristics that are considered when determining fair use: 1. purpose and character (is the work transformative, is it being used for non-profit or education purposes); 2. nature of the work (does the work have social value that trumps private ownership); 3. amount (how much of the original work is incorporated into the secondary work); effect upon value (does the secondary work devalue the original). On counts 1, 3, and 4, I think Fairey has a good case.

BlueFairlane

Thu, 05 Feb 2009 19:05:41 -0600

Actually, I don't think this qualifies as fair use, at least to the Obama campaign (campaigns have been ordered to stop using copyrighted songs, after all) and to those who did, in fact, profit from the image. And running a photo through photoshop isn't enough to claim that photo as yours. This reminds me of an incident in my native Kentucky. In 1985 or so, the state issued license plates that featured a graphic of two horses, mother and foal, running side-by-side, so that the smaller horse seemed contained within the larger horse. I always thought it was a simple, classy-looking plate. Sometime in the '90s, though, a photographer sued the state, claiming the image was based on a photograph he took. The photographer won, and rather than pay royalties the state canned the plates, switching to first some God-awful cloud patterned background, and then an even worse Teletubbie sun.

Tankboy

Thu, 05 Feb 2009 15:17:01 -0600

When Fairey was on Colbert he mentioned he hadn't made a penny from the poster and Colbert was astonished.

dayofthedaleks

Thu, 05 Feb 2009 13:41:11 -0600

This is clearly an attempt to encroach on and weaken the concept of Fair Use and as far as I'm concerned they can go pound sand. HOWEVER Fairey has a history of sending C&D to other artists who appropriated the andre OBEY stuff in a parodic fashion. So, I hope AP loses the case but only after Fairey is bankrupted somehow.

three

Thu, 05 Feb 2009 13:34:56 -0600

hey AP, look up the term "FAIR USE"

openair

Thu, 05 Feb 2009 13:24:54 -0600

Hey AP - I haven't seen a stretch like that since Spiderman quit my Yoga class!

oz115

Thu, 05 Feb 2009 13:13:16 -0600

This is pretty damn ridiculous. Even if he based the poster on the photo, it's different enough not to be infringement. It's not like he took the photo, typed HOPE on it in Photoshop, and sent it off on its merry way.

dopplerd

Thu, 05 Feb 2009 13:05:30 -0600

Photo: Blue Tie Graphic: Red Tie red ≠ blue case closed.