AP now Hopes for $/credit for Fairey's iconic Obama poster

[B o d i]

Source: Los Angeles Times

By now, everybody who cares is familiar with the iconic Hope poster of Barack Obama gazing, with determination, into the future that only he and artist Shepard Fairey can see.

As The Ticket reported recently, that poster by Los Angeles street artist Fairey is based on a news photograph taken 10 months before Obama's announced candidacy at a Washington speech when the Illinois Democrat was intently listening -- oh, the irony! -- to a conservative Republican speaker.

-snip-

Anyway, Fairey has made a lot of money off the image, which with his signature brings thousands on EBay. And he's acknowledged the image was actually taken from an Associated Press picture snapped by freelance photographer Manny Garcia at a National Press Club event on Darfur with actor George Clooney.

So far, so good. But now, the AP wants credit for that ripped-off image. And some money for itself and Manny. And Shep is saying, uh, no.



Read more: http://latimesblogs.latimes.com/washington/2009/02/obama-fairey-ap.html

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USA Today http://content.usatoday.com/communities/theoval/post/2009/02/62413337/1

CNN http://politicalticker.blogs.cnn.com/2009/02/05/ap-charges-copyright-infringement-on-famous-obama-image/

[Veritas_et_Aequitas]

1. How dare Fairey possibly use a real-life model for his poster.

He's no better than Madoff :sarcasm:

[TroglodyteScholar]

2. This is pathetic.

The AP owns the rights to the PHOTO. I'm pretty sure that poster is NOT their photo, but rather an artistic depiction BASED on it.

Shame, shame, shame...

[Xithras]

3. It's called a derivitive work, and Fairey was stupid to acknowledge as much.

Derivitive works are covered under copyright law and Fairey has already admitted that his poster was based off of the original AP photo. Had Fairey simply claimed to have been "inspired" by the photo he would have been fine, but by claiming that his work was based on the original photo, he basically admitted that legal ownership of the core image belongs to the AP.

If Fairey is smart, he'll work out a deal with the AP ASAP. He's already hung himself from a legal standpoint, so if this goes to court the AP can not only seize ALL profits he's made from the poster, they can claim punitive damages that will send him to the poorhouse.

When you take a photo, you own it. Others can't take your photos, rework them a little, and then make wads of cash without compensating you for the original work.

[TroglodyteScholar]

4. Wow...

Thanks for the info. It's a bit surprising, though, considering that the photo isn't just "reworked a little." Oh, well....

[Romulox]

8. Be careful. Xithras is overstating AP's case, imo.

http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_laws

[Xithras]

10. If it had been one of my photos, I'd be suing the heck out of him.

This is the sparring ground of lawyers, but IMO fair use doesn't apply here. He took the original photo, adjusted the colors a bit, added some text, and sold the resulting work for profit. The original photo forms the core of the new work and is inarguably its most striking feature.

It's derivative, and therefore it's an infringement. He will lose any suits over this, so he should settle now while the AP is still willing to talk to him.

[EFerrari]

14. Not true. He could have used any image of Obama's face

and gotten to the same place.

His composition does not rely on the AP image.

[Romulox]

28. By definition, ANY fair use of a copyrighted material is a "derivative work".

"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

Fair use rights exist "Notwithstanding" the rights of copyright holders. If they didn't, they wouldn't be meaningful. In other words, a fair use is necessarily going to be of another's source material.

[GReedDiamond]

30. Do you know the art techniques Fairey uses on his work?

He took the original photo, adjusted the colors a bit, added some text, and sold the resulting work for profit.

The original work that the famous HOPE poster is copied from is an actual work of art. Fairey uses various techniques including stenciling, painting, collage, etc. The work in question IS NOT a Photshopped image, where he "took the original photo," "adjusted" colors and "added some text," it is an original work of art inspired by the photograph, but executed using traditional art methods. It is NOT an altered version of the original photograph.

[Romulox]

7. That doesn't end the inquiry. He can mount a "fair use" defense.

He can claim that his use is "transformative" such that it imbues the image with a meaning not found in the original. He can further claim that his use in no way diminishes the potential market for the original.

"When you take a photo, you own it. Others can't take your photos, rework them a little, and then make wads of cash without compensating you for the original work."

That's not correct, when stated in the absolute.

[Ms. Toad]

55. Whether you are using it for commercial purposes

(i.e. make wads of cash) is one of the fair use factors. The more commercial, the less likely that the use is "fair use." regardless of how transformative it is.

[xocet]

13. Actually, it is called a derivative work.

derivetive, derivitive, derivotive, derivutive, derovative, ...

Damn, I wish that they would invent some form of technology or software that could help me with my spelling. One could even call it a spell-a-tron....

No, how about derivative! It is always nice when expert opinions are properly spelled. It makes one feel like the opinion came from an expert.

[Xithras]

15. My opinion isn't expert, so the misspelling is perfectly representative of the quality of the post.

Up until this past Monday I ran a company that did a lot of graphic design work for other companies, so copyright issues weren't an infrequent topic. I speak out of working familiarity with the legal standards, but I'm no lawyer and don't claim to be.

:)

[chollybocker]

5. Why did the A/P wait until now to sue?

When the artwork first appeared, didn't the photographer realize that his/her photo was the inspiration for the artwork, long prior to the artist admitting so in an interview? It seems like the A/P is less concerned with 'the integrity of copyright laws' and more focused on cashing in on what has become a very lucrative international icon.

[damntexdem]

6. How much is the AP going to share with Obama?

[HopeHoops]

9. Screw AP - that's clearly a fair use issue.

[NashVegas]

11. When You Use a Sample of Someone Else's Music In a Song

You get their permission and you pay them.

If you overtly borrow someone's lyrics, you acknowledge and you pay them.

What Fairey did, in essence, was run the AP photo through an Adobe Photoshop filter and claim the work as his own.

You can't do that.

Now.

At first, Obama's team just encouraged him to make an image, Fairey has said. But soon after he created it, a worker involved in the campaign asked if Fairey could make an image from a photo to which the campaign had rights.

There's your fair use, if it's the Obama campaign getting all the residual profits, depending on what rights they secured.

[EFerrari]

16. You vastly underestimate Fairey's work. And in addition,

using an image of Obama is like using an image of the Statue of Liberty at the moment.

The AP image was not central to Fairey's final product. An image of Obama was.

As a painter and writer, I'm usually on the other side of these spats. But he could have used any number of Obama images and produced his final product.

[NashVegas]

22. But Fairey Used *This* Image

And when the Fairey poster went to market, it was a different moment.

Funny, because I was reading about this earlier today in a different piece critical of Fairey for having gone from examining propaganda to becoming a propagandist.


http://www.myartspace.com/blog/2008/11/intentions-of-shepard-fairey-should-be.html

Shepard Fairey, the artist behind the iconic HOPE image of Barack Obama, has been openly upset concerning individuals profiting off of the iconic posters on Ebay. Many of the Obama HOPE posters were distributed for free after Fairey donated them to the Barack Obama campaign. There have also been some reports about the artist being upset that other artists have violated his copyright by creating similar pieces for sell. For example, Fairey informed a U.S. News reporter that once the election is over he plans to go after "bootleggers" who have "hijacked his style" in order to create "copycat images" of Obama and McCain. The article goes on to say that Fairey hopes to make the "bootleggers" donate some of their profits to the ACLU. That said, I find it interesting that an artist like Shepard Fairey would become upset when others trespass on his intentions or emulate his methods. After all, Shepard Fairey is the same artist who has been exposed several times for infringing on the copyright of other visual artists. The irony surrounding Fairey’s anger over this issue is amusing at best.




http://thephoenix.com/BLOGS/phlog/archive/2008/03/12/obey-obama-shepherd-fairey-s-barack-aganda.aspx

[EFerrari]

23. It will be found that he could have used a number of images

But linking him to Andre the Giant AND communism is sort of cool. :)

[NashVegas]

24. I Edited / Updated

To include some text from MyArtspace blog. For whatever reason, the owner is highly critical of Fairey and has been for some time. They're all over him for appropriating other peoples' images and not crediting where it's due until someone calls his ass on it.

[EFerrari]

25. Why is The Phoenix slamming him so hard?

I don't know the guy or have any reason to defend him. What is their deal?

It's fascinating in a way. I probably wouldn't feel that way if it were my dinner, but I confess it is.

[NashVegas]

26. That Was a While Ago

Now they're co-sponsoring an exhibit.

ps - that was March, and Massachusetts voted for HRC.

[Xithras]

18. I didn't catch that little tidbit.

That makes the situation a bit more interesting. If the Obama campaign licensed the image and had rights to use it, Fairey had a legal right to use it ONLY in the capacity that he was working with the campaign. I've never seen an image license that gave the licensee reassignment rights. That license would have granted the Obama campaign the ability to use the poster, but wouldn't allow Fairey to sell it.

[EFerrari]

20. I just caught his interview on Charlie Rose. I don't think that's how it happened.

He said he contacted them but all they did was encourage him before everyone started using the image.

He may be lying but that's what he said. In other words, the campaign didn't produce the image or pay for its development.

[Deja Q]

19. Thanks much

I knew there was a point to the issue - thank you for posting.

[Romulox]

29. You can't determine these issues by analogy or "folk sense".

The fair use inquiry is a multipart fact intensive analysis. There is no use, except maybe running digitally perfect copies, that you can say is per se "not fair use". Certainly the present example could easily make it to a jury.

[NashVegas]

32. "How much do I have to change in order to claim copyright in someone else's work"

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent.

http://www.copyright.gov/help/faq/faq-fairuse.html

[Romulox]

36. They need to update the old saying: "He who uses the internet as a lawyer..."

There are several assumptions packed into your quote--e.g., how do we define "work", and what constitutes a "new version" of that work.

"Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent."

This is simply factually incorrect, if it means that another's copyright work may not form the basis of your own copyrighted work. See Campbell v. Acuff-Rose.

Also see 17 USC § 107:

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.

17 USC § 107

http://www4.law.cornell.edu/uscode/17/107.html

**these are the sections of the code that grant exclusive rights in copyright holders.

[NashVegas]

37. What Parts

Of what you have republished have anything to do with a product that one is re-selling for profit?

[Romulox]

39. The commercial nature of the use is an aspect of the inquiry

but it is not determinative.

Please see Campbell v. Acuff-Rose if you're truly interested.

[NashVegas]

40. So. Fairey's Poster Is Now a *Parody* Of the AP Photo?

Please, you're making me giggle.

[Romulox]

41. Errr, no. It may be a "fair use". A parody is a type of a fair use, but not all fair use is parody

"Please, you're making me giggle."

You obviously don't know a thing about copyright law. I thought you might be interested in learning, but it's obvious you don't care. :shrug:

[NashVegas]

44. Using An Example of Fair Use Does Not Prove Fairey's Work Is Fair Use

When the example you are using in no way resembles the circumstances in which Fairey used the photo (and others' works as well).

[Romulox]

45. Oh dear.

"When the example you are using in no way resembles the circumstances in which Fairey used the photo (and others' works as well)."

You haven't a clue how legal cases are decided or how legal precedent works. :hi:

[NashVegas]

47. I Know Enough

To see that Campbell v Acuff-Rose isn't going to provide a defense for Fairey.

[Romulox]

48. Er, no you don't. You read a summery and didn't understand it.

I don't understand the mentality of a person who wants to discuss matters like this, but is entirely incurious about the actually legal rules and precedents surrounding the matter.

By all means, proclaim that "Fair Use" only applies to parody, or that Campbell...stands for the proposition that parody is the only form of Fair Use ( :eyes: ).

But please, retain a lawyer if you need any accurate legal advice; legal information on the internet seems designed to prove the the maxim about a little knowledge...

[NashVegas]

50. Man, The Bullshit Factor Is Through the Roof Here

Nowhere have I stated that parody is the only form of Fair Use. YOU threw Campbell in. I have implied or stated several times that Campbell would not be applicable in this case, as Fairey's work would not fit parody.

You think Fairey could mount a successful defense as Fair Use.

I disagree, using this precedent:







The deciding factor in this case will be in what rights the Obama campaign secured from AP when they got use of the photo.

[Romulox]

51. Actually, Campbell stands for the proposition that commercial use is not per se "not Fair Use"

"I have implied or stated several times that Campbell would not be applicable in this case, as Fairey's work would not fit parody."

And what I'm trying to explain to you is that the holding in Campbell is not limited to parody. I'm not sure why that is so difficult for you to understand. :shrug:

"I disagree, using this precedent:"

Yes. Congratulations on your googling. I'm familiar with the case, but a photo is not a "precedent", fyi. You cite a case by stating its name, at bare minimum.

[NashVegas]

53. Within Limits

You cite a case by stating its name, at bare minimum.

Petulance is so unattractive.

[Romulox]

54. Hey, did you see that Stanford's Fair Use Project is representing Fairey?

Maybe there is a Fair Use defense here, after all. Hmmm.... :hi:

http://www.mercurynews.com/newsspecialreports/ci_11666008

[GReedDiamond]

31. This statement is false:

What Fairey did, in essence, was run the AP photo through an Adobe Photoshop filter and claim the work as his own.

It is NOT an image created by a "Photoshop filter." It is, in essence, an actual hand made work of art, using traditional art techniques - drawing, painting, stenciling, collage.

Sheperd Fairey's work is NOT accomplished by printing out the results of Photoshopped digital manipulations.

If you were to see his original work in a gallery, that would be quite apparent.

[NashVegas]

33. Essence

Because we now have more people who use photo software to manipulate images into doing things, in seconds, by-hand-artists take hours or even days, doesn't change the result. Changes the monetary value is all.

Fairey used someone else's work w/out permission and didn't acknowledge it until someone busted him - again.

[GReedDiamond]

35. OK, we'll just overlook the fact...

...that artists throughout history have utilized preexisting imagery in their art.

"Fair use" is an actual, real concept, and there is legal precedent to back that up.

Your reply does not validate your false statement about Fairey using a "Photoshop filter" to produce his work, because he doesn't.

Have a nice day.

[NashVegas]

38. "I Destroyed Your Argument"

Have a nice day, indeed.

[EFerrari]

12. This is how bankrupt Authorized Propaganda is. n/t

[Deja Q]

17. He acknowledged it?

Photographs are copyrighted works.

Trouble is, if 20 people took Obama's photograph in that position, 20 people could sue the same guy from making a painting of it too.

And the painter did not steal the actual photograph.

The AP is probably being silly, but they might have a (small) point too. I'm just glad I'm not a lawyer.

[HiFructosePronSyrup]

42. He acknowledge he used it as a stepping off point.

Which is an acknowledgement in Fairey's favor.

It means he was aware of intellectual property issues when he began the project.

AP hasn't got a legal case, and they're hoping they can intimidate Fairey into settling out of court.

[customerserviceguy]

21. The funny thing is, if it were a parody

he wouldn't owe squat for it. The SCOTUS has protected parody use of intellectual property.

[liberal N proud]

27. Corporate greed

AP doesn't own the image of Obama.

[NashVegas]

34. Okay. So DU Now Hates Professional Photographers, Too

And doesn't think they have any right to get paid for their work.

Great.

[HiFructosePronSyrup]

43. Actually, the photographer got paid for the work.

So there goes that argument.

[ohio2007]

46. did he claim it on his taxes?

most likely that one slipped his mind

[tinrobot]

49. He's an AP photographer, of course he got paid.

AP would not release it without obtaining the proper rights.

Unfortunately, that argument also can be used against the Fairey as well.

[B o d i]

52. (completely unrelated...) Shepard Fairey Arrested In Boston

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x3727984
http://www.huffingtonpost.com/2009/02/07/shepard-fairey-arrested-i_n_164872.html

Two warrants were issued for Fairey on Jan. 24 after police determined he'd tagged property in two locations with graffiti based on the Andre the Giant street art campaign from his early career, Officer James Kenneally said. One of the locations was the railroad trestle by the landmark Boston University bridge over the Charles River, police said.

Fairey, 38, of Los Angeles, is scheduled to be arraigned Monday in Brighton District Court, said Jake Wark, a spokesman for the Suffolk District Attorney. Wark said Fairey would also be arraigned on a default warrant related to a separate graffiti case in the Roxbury section of Boston.