AP goes after Obama artist Shepard Fairey
The Associated Press, presumably looking to cash in on the phenomenal success of the "HOPE" artwork, are now going after artist Shepard Fairey, claiming he used an AP-licensed photo without permission for his iconic portrait.
As we've previously reported, the Hope posters that artist Shepard Fairey created during the presidential campaign use an image of Barack Obama that's based on a photograph taken for the Associated Press by then-freelancer Mannie Garcia.
Now, the AP wants credit and compensation.
The wire service says Fairey didn't get permission to do what he did. Fairey's attorney says "fair use" gave him the legal right to take the image and rework it into a piece of art.
"We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution," says the AP's director of media relations, Paul Colford, in a statement.
This may just turn into a landmark "fair use" case. Where do you stand?
See the images in question here.
photographing his face, I doubt AP paid royalties to Obama... who is the owner of said face.
LOL.
nice!
I was wondering if the AP has ever used an iconic phrase like "the times, they are a changin'" or "what a long, strange trip it's been" and then paid royalties to the artists whose lyrics they used.
Heck, the idea of paying royalties to the owner of the face they photographed was so obvious, I zoomed right passed it!
Good point.
if i take a photo of the guggenhiem (or another architect designed building) would i have to pay royalties for using their 'art' to promote mine?
it's not your building, so if you want to make money from your pictures of another person's building, don't you think you should ask for and receive permission first? maybe even offer to pay for that permission?
Yep. If you take a photo of a property and use it for commercial purposes, you must legally obtain a property release. Same thing goes with commercial use of a person's image...get a model release.
If you shoot for AP as a freelancer, as I do on occasion, you've signed their contract which grants them copyright to your photos. That does kind of suck, but that's what happens.
Photos, artistic materials, are licensed out for usage. AP's photos get used for editorial purposes. When someone wants one of those images for commercial purposes, AP, as copyright holder, will license that image for very specific usage, for an appropriate fee.
This is a funky case, as Fairey isn't profiting, but the Obama campaign is. So as a derivative work, the poster should fall under the copyright laws pertaining to AP's image. I'm just not sure where that falls.
News Corp. Suffers Staggering $6.4 Billion Loss
Some stuff you can't make up!
"Re: AP goes after Obama artist Shepard Fairey"
Finally, some good news!
seeing Murdoch in a barrel suit would make my day
me-oww!
The AP has no case here, it's obvious. The image is a drawing based on the original photograph and placed in a new context which alters the meaning. What baffles me is why AP is even doing this. It smacks of political harassment by a former news organization that has been transformed into a propaganda arm of the GOP.
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All media is desperate right now -- they want the windfall.
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I think AP has a legitimate claim. I don't think he significantly changed it. He never even contacted the original photographer, which is a courtesy professional artists do all the time.
Ditto. He should have at least cont(r)acted the photographer. Not doing so is also a discreditation of the photographer's talent - the photographer who displaced himself to get a the pose, expression, angle and light that just right for a picture the artist otherwise couldn't have.
The image is not a drawing.
The image is simply a scan of a photo. It's easily prove-able, and has been admitted to by Fairey himself.
Shepard Fairey has done this his entire career. I say "career", because he is not an artist - he is a graph designer for his company, "Obey". He claims to create "original artwork" but is guilty of a very wide range of rip-offs, stealing, lying, and profiting from it. The Obama image is in now way an isolated event.
For more information on Shepard Fairey's history of plagiarism, please check:
http://en.wikipedia.org/wiki/Shepard_Fairey
http://www.art-for-a-change.com/Obey/index.htm
http://www.brghtnghts.com/blog/?page_id=33
http://www.brghtnghts.com/blog/?page_id=46
http://www.youtube.com/watch?v=lrx4l3rHAg8
**On a more artistic note: the entire purpose behind Fairey's "Obey" campaign/company was to use graffiti artforms, street-art, in a way that shows the continuation of being "held down by 'the man'", while using the iconic graphics of communist propaganda poster-work. Think about that for a second. He created a poster for Obama using historical communist propaganda posterwork techniques, used a photographer's work without permission, and still insists that he is an artist and creating "fan art" for Obama.
Major FAIL.
Including giving pro-GOP coverage to the Bushies, in this case, I think AP is correct. If Fairey scanned the photo as some claim in this thread, then he used the actual image. He did not make a drawing of a photo. A published photo is copyrighted. You can't just use it without asking permission, especially not if you are going to make money from it. Not sure about Andy Warhol and his silkscreened images of photographs, though ...
The nation has been going down a long road of disintegration of the hard-copy news business. If a judge or jury decides any published photo is fair game, it will be another unfortunate nail in that collective coffin.
And good point Tyler.
but.. tell me if i am wrong: if an image is altered so many times (7?) it no longer falls under the copyright of the original owner... and can thus be used without fear...
eh?
like i said, i'm not a lawyer... (i'm a lawyer's dream)
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.
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if i am completely wrong, i was just joking, nyuk, nyuk, nyuk
;)
I don't agree - as an artist, I think this is ridiculous.
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....Shep has been playing hard & fast with HUNDREDS of images, from iconic shots of Debbie Harry to KISS art. He was bound to get burned sometime.
We work ridiculously hard in this day & age of corporate rule of everything to make sure all our posters are OK with the bands' management. And we hate it when someone just appropriates our work.
But AP, what the hell are they thinking? I think Shep will be able to prove that his usage took the art far further than the AP ever could or would, as the AP is supposed to be a neutral journalistic entity. Shep actually cared about the campaign, as well as played this as one savvy guy.
Screw AP. Why aren't they suing Time Magazine, which published Fairey's image on their cover?
FAIR USE (Wikipedia):
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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 copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
For the commercial press, "fair use" means is that a copyrighted work can be used to illustrate an article on the work itself - an album cover illustrating an article on the album, for example. For the non-commercial, educators can use copyrighted images as illustrations to their teachings, but charities cannot do the same to promote their causes.
As soon as commercial gain outside of the product comes into the question, credit must be given where credit is due. Putting an album cover on a widely-distributed t-shirt, for example.
As I understand the copyright laws, if AP copyrighted the photo, it gives them rights. If Shepard Fairey subsequently takes the photo and modifies it, it's fair use...until he decides to make money with it in a manner that is not related to learning or scholarship. At that point, it is an infringement of AP's copyright. If this becomes an article of commerce, he is in the wrong, and AP is in the right. As a graphic artist, he should probably have done this with a photo that is in the public domain or taken his own photo as the source for his artistic work. It's no different than if somebody took one of his original works of art that he had copyrighted, modified it in someway and then used it as an item of commerce. He would probably considered that the rights to his artistic property had been violated.
Actually, if I took Fairey's Obama piece and pasted it into a collage and sold that, I'd be well within fair use. In fact, if I made a pastel drawing of it, I still wouldn't be violating any copyright.
No, you wouldn't at all be within the limits of 'fair use', because of your intention to make money with the collage of copyrighted work.
Why do people keep thinking that money has something to do with it?
A copyright violation is still a copyright violation, whether or not someone intended to make money from it, or whether they ever made a dime. If I go to the library and photocopy an entire book, I have broken the law, even if I never share that copy with anyone. The only place that money comes into the equation is that my actions have deprived the copyright holder of the ability to benefit from his/her work.
And by the same token, if it's not a violation of copyright, it doesn't matter if a gajillion dollars is made off it - it's still not a copyright violation.
Fair use provisions are designed to allow people to make derivative use of a work - or more frequently, a small portion of a work - without being subject to penalties for copyright infringement. But if the use of the work rises to the level of being a new, original work, "fair use" becomes irrelevant. It isn't fair use, it's an original work - and copyrightable on its own.
in copyright law, but my understanding is that every picture one takes is now automatically copyrighted. There is no formal process to copyright it, and you don't even need to put the copyright watermark on the picture in order for it to be copyrighted. I think the copyright symbol, if on a picture, simply extends the length of time that picture is actually copyrighted.
I'm pretty sure this is correct, although, again, I'm no expert. As far as what Fairey did, however, I don't know if the AP has a case or not.
You hit it spot on. I'm also an artist and copyrights are an extremely important part of my business (as it should be with ANY creative professional).
What you say here: "It's no different than if somebody took one of his original works of art that he had copyrighted, modified it in someway and then used it as an item of commerce. He would probably considered that the rights to his artistic property had been violated."
Yup. Very true.
... is that they have a twisted view on what constitutes "property" regarding art.
The old adagio still applies: good artists copy, great artists steal.
I am frankly tired of two bit artists pushing their rights on their art over my personal rights.
Here is my take: if I buy a magazine with the pic of Obama in it. I own the whole magazine, because I paid for it. I did not "rent" your picture. I own a copy of it. Now I can do with my copy as I damn well please, I can use it for fishwrap or I can make a work of art with it... because... here is the kicker: I bought it, thus I own it.
You don't want people copying your stuff? Very simple then; DON'T SELL IT.
oversimplification
LOL.
You got that very wrong. When you buy a CD of recorded music, you don't own that music. You get in trouble if you start making copies of that music and selling it. You record somebody's song, you'd best pay them royalties for their song. Same thing with a photo. When you buy a photo from me, I'm not transferring the copyright, unless you pay me big bucks. You are purchasing the licensing for very specific usage. Just try to turn my photo into and advertisement for some national brand...big bucks there my friend.
You want musicians and artists to continue producing quality work and making it available at a reasonable price for personal use? Don't pirate music. Don't pirate art.
We photographers shouldn't be signing work-for-hire agreements either, without fair compensation.
I was giving my own personal opinion. I think it is complete bollocks to expect me to pay for something... that I don't own.
Copying is copying, pirating is stealing. So unless you are stealing the Gioconda from the Louvre, you are not really pirating jack squat. I am f*cking COPYING IT. Don't want people to copy your art? Then lock you precious work of art in a safe somewhere in the middle of nowhere.
If that is the case, then... when I am done listening or watching the proverbial drivel that passes today for "art" then I expect the "owner" of such crap, to... well... reimburse me part of my money. Since the "art" in case belongs to him or her and I was, I guess, simply paying a small deposit for using it. Since I did not fully wore out, I guess I can trade it in, just like a leased car...
But that is not the model the modern crap commercial artist expects, is it? Noooo, I have to pay for something... that technically does not belong to me. Ain't that a bitch?
I am fed up with the fucking arguments regardin monetary motivation as the only incentive for art. I find it pretentious to the extend of inducing me nausea. There has been plenty of art before this insane commercialization of art came along.
In fact, I can make a pretty fucking good case that the quality of art before this commercial nonsense came about, was probably better than the shit that we are force fed now.
If anything, removing the incentive of easy riches may actually prune the field and leave those people who are real artists, i.e. people with talent, not just business skills.....
Tyler, I generally agree w/ where you're coming from, but I think you'd be more successful if you toned it down somewhat. First off, the "commercialization of art" in the West got it's first big push in the 17th C. in the Netherlands. They were the first European culture to have a modern 'middle class', a class that were in the majority in population and that collectively controlled a majority of the disposable wealth. They created demand for small-time luxury items, such as artwork (which had previously belonged solely to the Church & the Aristocracy.) Pretty much the entire work of the Dutch masters, Rembrandt, Vermeer, comes under the heading of "commercially-driven" art. 95% of all Western art after this also falls into this category, so I'd say that the drive to provide a reasonably comfortable life for you & your family is a valid one for the creation of brilliant art.
Now, your point about "easy riches" is a valid one, but those cases are extremely rare-- it exists more as a carrot in the minds of prospective artists than in actual practice. Yes, it produces lots of mindless crap. That, and other reasons, I would say that artists today, but the frauds & the genuine, have a truly fucked up situation to deal w/ to make a life for themselves & their art. I think the real issue is how can society properly reward its artists, both those who are good at representing societies' image of itself (popular art) as well as representing where the society will be in the future (art that is "challenging" or "difficult").
The copyright laws which we live under were geared towards the individual, to allow him/her to be able to profit from their own labor, an American Ideal. However, it has totally been subverted in the age of the MultiNational. It no longer performs very well for its original purpose, and instead holds up the very forces that it was intended to subvert.
I think this subject, like every other issue in the world today, needs to be addressed by re-defining what a corporation can & can't do, and give every Individual their own Bill of Rights in regards to Corporations, as well as in regards to Government.
Fairey never made any money off the image. He donated it to the Obama campaign. So if their case is built on him making money, they're barking up the wrong tree.
Are we going to have people going after Andy Warhol's estate too? There's practically no end to the trouble this could cause.
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warhol appropriated many iconic symbols... maybe that's why shepard didn't sound too worried about it.
from a murdicKKK outfit?
Some stuff you can't make up!
Old Roopert is in trouble....his empire lost over 6 billion!! Yikes. Poor fella.
On my feet!! Oh...sorry...thought that was rhetorical....It's a picture. Big deal. Too damn many lawyers involved with everything nowadays. Does everything have to end up in lawsuits? How about pantsuits? Birthday suits?
Obviously fair use. No one but a (greedy) lawyer could argue otherwise... and frankly, I'd expect more out of any journalistic organization, particularly one as old and huge as the AP. Gotta be a money grab (which they've illustrated they're remarkably good at these days).
I also note that US copyright law is so completely broken now (thanks a lot, Disney) that I'm more or less in favor of anything that weakens it. Ironic, since I'm not really one of those "information wants to be free" junkies. I just hate seeing the corporate-bought mess that "copyright" (ironic word now--more like "don't you dare copy"-right) has turned into, which has done far more harm than good when it comes to producing profitable art and information for the benefit of all.
seems to be fair use... AP is jealous, maybe. Ironic would be if the portrait ended up in the public domain after being hung in the whitehouse. is that how that works?
I'm a professional artist and I say: Go Shepard.
As a photographer, I'd be pretty pissed off if someone took my work and used it without permission. This is not a credible example of "fair use". He will lose if it goes to court--for sure.
Right?
Who also takes pictures or creates pictures/paintings/whatever of the same subjects you photograph? That is the stupidest argument I've ever heard. The only inspiration is that it's the President of the United States, and he's looking up. The poster has the President looking in a slightly different direction; it's not another photograph, but a new medium; there is obvious compostion to what Shepard is doing.
First, you obviously have no understanding of "fair use". And claiming to being an artist either means you are incredibly stupid or a liar.
Which is it? Are you defending the AP? Or do believe in an artists ability to earn a living?
More than likely, there would have been no issue if this "artist" just called up the photographer, explained what he wanted to do, donate it to a campaign, and then let the photographer talk to AP. The "artist" is not a professional artist in my book. I challenge Shep to use the Leibovitz photo.
Of course, the photo in question is not an artwork, but rather a piece of journalism. It was not posed nor was the scene compositionally arranged by the photographer. The other important factor is that it isn't even the original photo that has been used, but a drawing of it. That fact alone, renders any claim of copyright violation specious. The copyright applies only to the original work or mechanical reproductions of it. Context is also important. I could take the original photo, cut it out and place it in a collage if I want. By changing the meaning and context of copyrighted material and transforming it into a unique, original work, is the very definition of fair use.
He created, in a different medium than the picture, a composition of the President also looking up. Not even the same way either. Look at the eyes. So now the AP can claim domain over EVERY picture or composition of the President of the United States looking up??!?!
Given the state of art today, this is still an open debate:
http://en.wikipedia.org/wiki/Appropriation_(art)#Appropriation_art_and_copyrights
the canvass maker suing van gogh.
No...
Can Chrysler sue me?
in this new web 2.0 age, information can be shared from the marketer to the consumer infinitely more quickly and on an infinitely larger scale. this streamlines so many problems with delivery but it opens up a huge list of headaches for security.
the thing is - the internet's been around for a long time. so - its unfair to say you got caught "off guard" after you've had a robust, popular web server farm running for 10+ years.
artists and intellectual property owners like Eminem actively work and hire contractors to work to prevent their intellectual property from hitting the web. the protect their content, they seek out those who attempt to pirate their content, and they work hard to prevent users from obtaining their content from pirate sites by manipulating search engines (protip: did you know Eminem's crew uploads butt tons of crappy crappy awful songs labelled "new Eminem single" in order to discourage users from pirating his content?)
the knowledge and services are out there for a smart, enterprising "intellectual property" or content owner to protect their content. and for an investigative/journalist firm such as the AP to claim ignorance is disingenuous to say the least.
the AP left images of Obama - ... and Bush, and the World Trade Center, and Donald Trump, and orangutans, and beautiful sunsets ... that were all used in a variety of copy-pasta'ed "new" content from designers not unlike Mr. Fairey. and sold.
for the AP to cherry pick his work now is trivial and petty. they made no protest when the image first originated during the Obama campaign, and they've shown no similar propensity to protest against many thousands of other designers using original AP content.
the AP is guaranteed and secured by constitutional bylaws allowing them unfettered access to war zones, laboratories, and political figures. there should be an understanding that - if the AP is allowed this access in order to provide content to the citizenry, for the citizenry's concern - the citizens should be allowed to freely discuss, and manipulate, these journalists' content.
this is a bullshit lawsuit. on so many levels.
are bullshit lawsuits. Make work projects for lawyers.
I like your comment. Intelligent and coherent. Thanks!
That's the best summation of this lawsuit I've heard yet.
Besides, Shepard Fairey is a street artist who nabbed an image of Obama using Google. And he's not making any money on his work. So yes, by definition this sounds like fair use.
This is like Napster all over again.
Let the AP and others pay royalties to the pentagon. ROFLMAO, etc.
http://www.americablog.com/2008/02/did-ap-ste...
AP routinely steals other peoples stories.
http://scienceblogs.com/clock/2008/06/ap_stup...
Trying to be objective, I'd say there's some validity to both sides' arguments. I think AP probably deserves some recognition as the inspiration for the iconic artistic image but what's fair I believe, would be the "normal" fee that any agency/artist would pay for an AP photo. Beyond that, maybe something on record that it was an AP photo that was the template for the painting. On the other hand, has there been any precedents for situations like this? I see animated shows like Family Guy and the Simpsons using well known imagery for their version of artistic statements. Do they need to pay say Francis Ford Coppola if Family Guy does a small reference to the helicopter attack on the Vietnamese village? Anyone? Anyone?
fell in the forest and nobody was around to witness it, would lawyers converge and sue the other trees?
certainly it was SOMEBODY's job to witness the falling tree and who ever they are they find themselves in an extremely actionable position. I refer you to the case Anyone v. Anybody.
routinely, have never been 'defendants.'
In a 'Nation of Laws,' a good lawyer's money on the bank one way or the other...
common sense where very little flows.
I don't trust any news the AP presents. Now their suing artists! Must be owned by FOX.
How many similar photos of Obama are out there? A thousand? A million? Its just stupid and greedy of the AP. Who owns them, anyway?
Fuck Da AP! FUCK! FUCK! Fuck the AP!
The photographer's work did have a LOT to do with how that came out, and it has been milked commercially for a lot. As much as I like the work and think there was no malicious intent, if I was the photog I would be upset.
Let the photog and the painter work it out. The AP on the other hand is the one talking hooey.
The AP owns the picture, not the photographer.
Are you actually undecided about a freaking picture of the 1st African American President of the United States looking up...simple picture looking up, and someone else creating a poster, an actual composition ALSO of that person looking up - BUT NOT EVEN IN THE EXACT SAME DIRECTION...and so the AP can claim copyright infringement on everyone who depicts the President looking up????
...always a thief.
Evidence: http://www.art-for-a-change.com/Obey/index.htm
That's a hypocritical joke.
Look at one of Mr. Evidence's first "works":
http://www.art-for-a-change.com/content/nixon...
That's such a petty article that lacks integrity and intelligence from within the first 2 paragraphs. I stopped reading after that.
If you agree with this 'critique' then there is no way I can articulate or explain the validity of what Fairey does.
'Used' or 'second hand' art has been around long before I was born, if some stuffy old artist is still misunderstanding it or being offended by it then there is no reasoning with them.
The AP is wrong on this IM not so HO.
The ICA in Boston is showing a 20-year retrospective of his work. In case you didn't know, Fairey is the Providence street artist who got his artwork stickered in virtually every city with his 'Andre the Giant Has a Posse / Obey" poster.
http://obeygiant.com/headlines/ica-boston-sne...
While it applies to video mashups this is an argument in Shepard's favorCode of Best Practices:
* Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
That'd be the relevant precedent, to me...
I guess now that the AP can no longer shill for the Bush regime they can go after the Obama artist.
As an artist, I have to worry about risking copyright infringement all the time. But what kills me about this particular issue is the fact that a freelancer shot the photo for the AP, but the AP owns the rights to the image. That's called Work for Hire, and while it's legal, it's a pretty dirty practice.
So if you're an artist, or a photographer, or whatever, and you take a photo or design something or create an illustration for your employer, you yourself have no ownership rights over the piece. You'd even have to ask permission, or have a clause in your contract, just to use the piece for your portfolio.
While I think Fairey could have done a better job of covering the bases here (according to copyright law the copied piece has to be "significantly altered" in order to be used; although the fact that he didn't do this for commercial gain should weigh in his favor), the AP can go screw themselves. They're getting greedy over the work of someone who A) no longer works for them; B) since he was a freelancer probably didn't get any benefits; and C) doesn't even get to claim his own work. I hope they're shut down hard on this one.
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can the AP prove that his picture was the same as there's? Did the guy admit it?
If he's not doing it for commercial gain, and he's not making money off it, then what's the AP's problem?
The artist has acknowledge that he used the AP photo as a model. The REAL question is...well...why now?
Another big question is, can the source sue someone for infringement for using them as an inspiration? Can the creator of photomosaics be sued by the estate of George Seurat? Can NYC pigeons be sued by Jackson Pollock? Can Bill OReilly be sued by the estate of Morton Downey Jr?
Yes, you can be sued for using another copyrighted work as a source for your own work. It seems to be a murky area and some of it depends on how far your new work moves beyond the work you're copying and how much of the original work you're using.
Was it formally copy written?
Snip - Do I have to register with your office to be protected?
No. In general, registration is voluntary.
Copyright exists from the moment the work is created.
You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work
[ http://www.copyright.gov/help/faq/ ]
When did the "AP" register the image, any one got a date???
> File a copyright registration for your work through the Copyright Office online system.
[ http://www.copyright.gov/register/ ]
Study the symptoms not the virus...
Fairey hasn't made a dime off this art, it was donated to the Obama campaign and available for download without charge.
tyler's first comment is exactly what i thought also...
my second thought was, what took them so long?
hasn't this poster been out for most of year, at least?
what has happened in the meantime... seems even quite a wait since the election...
so they wait a "respectable" amount of time since inauguration?
Give Biden's history of supporting draconian copyright laws and Obama's RIAA DoJ pick, I think they painted themselves into a bit of a corner.
M. Fairey has a history of copying err... taking "inspiration' from progressive artists and turning it into his own profit. AP doesn't deserve to win this case but they seem to have chosen the perfect example to promote their case.
http://www.art-for-a-change.com/Obey/index.htm
that blogger at supersonic speeds... LOL. Talk about not "getting it."
If the artist made nothing, and donated the work to the Obama campaign, then he would probably be fine with giving the photographer a precentage of every penny he didn't make.
Walk anywhere in NYC and see how many bootleggers are making money off this art. Its just a perpetuating cycle of people working off each other. AP has no case. Obey all the way.
As a semi-regular AP freelancer myself I don't own the rights to any of the photos I shoot for AP or for my own newspaper. But I have never had any problem at all with using images for my portfolio, or even an exhibition showing since I was the photographer. As far as my own newspaper goes they allow pretty much anything I do with the photos I took, except for selling them for profit to another media outlet. This copyright thing happens quiet regularly, however, I see photos ( several throughout the past 15 years) I took painted hanging in art galleries around town for some hefty price tags. I useually do nothing because these are mostly starving artists. But on the scale of this Obama piece, I would demand a credit at least.
Michele Malkin could draft another John Doe Manifesto, but instead of to Muslim terrorists, sympathizers, etc. it could be to artists who pilfer work from the AP. Change a few words around and send them a warning.
I wanted to answer.
Without seeing them side-by-side, I may not have known for a bit that the poster (graphic art?) is using the photograph as a model. However, the form is different - the type of media used to get the poster. It would be like a slide or photograph I have of a beautiful alley in Germany and having someone like Monet paint it. It might just piss me off that Monet is making much money on his form (painting) than I am or did on my form (photo), but to me it's different.
I do see 'busterkitten's response. Perhaps crediting the photographer would be appropriate, don't know.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include...4. the effect of the use upon the potential market for or value of the copyrighted work.
I think you can fairly say that without the iconic image of Obama by Shepard Fairey the original artwork would have much less value. It would merely be one of millions of photos of the new President. By dint of the being the basis of this much more powerful image its value is has increased ten-fold.
AP publicity stunt. All publicity is good publicity.
Don't be good merely to be better than others.
No, no, no, no, NO. AP has the copyright to that photo, fine. But Fairey made an entirely new piece of art. He didn't photoshop it up. It would be like Andy Warhol paying royalties to Campbell's Soup.
the poster isn't the AP image. It's part of his supplies.
If I use yellow in a painting, is someone going to sue me? Yeah I know bad analogy to some, but really, it's just an ingredient
me-oww!
http://www.nytimes.com/2008/11/06/arts/design...
As art formulas go, nothing beats paintings based on photographs. There must be hundreds of such works in progress at all times around the globe, usually involving newspaper images, opaque projectors and any number of materials: traditional oils, buttons, you name it.
Don't be good merely to be better than others.
me-oww!
Hopefully this case will be brought into court and the artist will win, setting a precedent and sending a message to these giants that such cases have no merit. In most cases, these lawsuits are brought in not because it has any merit, it's simply a way to force the small guys into a settlement, because if this stays in court the legal fees for the defendant will be too overwhelming. Shame on AP.
Generally speaking the publication or purchasing authority (AP) buys the first reproduction rights. Use after that publication should be determined by the photographer. I think the artist should compensate the photographer for using the photo. But AP should not be involved.
That's not what they said up there? ▲ ▲ ▲ ▲ ▲
Thu, 02/05/2009 - 19:53 — busterkitten
As a semi-regular AP freelancer myself I don't own the rights to any of the photos I shoot for AP or for my own newspaper.
Study the symptoms not the virus...
To shoot for AP, you have to sign their contract, which grants them copyright. Work for hire sucks.
A pet peeve of mine is that when you publish in most scientific journals (the dread Elsevier group, publishing half the journals on this planet, immediately comes to mind), the journal owns the copyright, and you cannot legally send a colleague a xerox of your own work. They give you 25 offprints, and after that you have to buy them at $15-25 a pop. Of course nobody complies. An exception to this is when an author works for a government agency.
Instead, I send preprints with annotations as to edits made in the final submission, so it is work self-published before submission to the journal, so I as author own the copyright. Note that I am in a commercial venture and the research is entirely funded by the corporation. Your mileage may vary.
I grant the journals the expense of organizing, and getting the referee-ing done. But they usually have a pretty stiff page charge as well to cover their costs.
There is an online set of journals called the Public Library of Science that is attempting to counter this, and now is starting to get some prestigious contributors publishing there.
Marilyn Monroe, James Dean, JFK, John Wayne, Ingrid Bergman, Campbell's Soup, The Mona Lisa, etc. etc.
Don't be good merely to be better than others.
And since the Andy Warhol foundation still licenses and sells authorized reproductions, it's probably a pretty safe assumption that they either were never sued, or if they were sued they won the suits.
BTW, you can do pretty much whatever you want with the Mona Lisa, outside of deface the original, of course, LOL There's no copyright there.
SF should do one of Rupert but several times over like Warhol.
Is it true if you write up a lecture for a university they own the copyright?
It depends entirely on your contractual arrangement with the university.
More than likely yes. Regular publication is necessary for professors to keep their job. And if it was written during work time it's like an engineer inventing something while in a corporation using their time and materials.
But like Just My Words said if it's specified in a contract, a clear agreement between parties would be respected by the courts.
However, I doubt the law firm that employed that lawyer who created the comic strip Condom Man are that interested in his feature. Unless he's self-employed, in which case he would have to sue himself.
Diabolus est Deus Inversus
Sorry, but Fairey is wrong. As a photographer (amateur, semi-pro), I would be quick to a lawyer if someone tried to take my photograph and modify it for gain like that. That's simply not "fair use" in any way, shape, or form. It's stealing.
He DIDN'T MAKE ANY MONEY. The image was donated to the Obama campaign, and Fairey has never made a cent off it.
smart move, too. I'm sure that over the years, the man has realized giving his images away is the only way to protect himself from this kind of shit.
Shepard Fairey is not profiting directly from his design (in fact he said so himself on when he was on The Colbert Report, that he has not received a penny for his design, having donated it to the campaign and to anyone who wants to use it and reproduce it). So...that's pretty much the end of the discussion.
But still the AP wants to sue him. Wow.
Fuck off AP. Fuck off.
Or work on your understanding of copyright law.
Fair use does not prohibit someone from making a profit on your work. You would have to show that their actions prevent YOU from benefiting from your work.
no way. press over government is fair game. reproduction of government related material can't be copyrighted like that.
There was a lawsuit involving the film 12 MONKEYS where an artist sued over the scene where Bruce Willis is in the elevated chair with the video sphere in front of him. The artist had drawn an illustration that bore a striking resemblance and claimed it was used as the basis for that set's design. The court ruled in his favor and the studio settled to avoid having to remove the footage.
Yeah and so they should have IMO, because the artist had CREATED something original. The 12 Monkey artists has copied the illustrator's unique IDEA/CONCEPT. And unlike what fairey does it's unlikey the 12 monkey's scene was obviously passed off as 'copycat' or 'second hand' art, but instead a scene in a big buck making movie that enhanced the ability of the movie to make big bucks.
Barak Obama's head isn't exactly the photographer's original idea/concept, and neither did the photographer create anything in the artistic sense. They were covering/recording news, not making art. Their moral copyright should only extend to people using their photo in direct competition to the purposes they created/used it for and/or if someone tried to pass off a totally unaltered image of it as art.
I'm not making a legal argument here just a moral one. Not sure how sound my argument is though.
Greed and Envy. Greed for quick money. And envy of the fact that your talent isn't good enough.
http://obamiconme.pastemagazine.com/entries/i...
and a whole lot of other commenters seem to be of the opinion that they are not lawyers either but are entitled to their legal opinion. I find that infringing if not the least bit intimidating.
Consider the possibilities of copyright infringement. For example, the University of Texas is suing virtually anyone using a Longhorn steer likeness. When cattle win a cease and desist order preventing their football team from eating beef, justice will be served, er rendered, er either delayed nor denied.
"I mean Romney is the most conservative on illegal immigration and I don't think Ronald Reagan could get elected in California today."
Ann "Clipped" Coulter
100% Fair Use! AP can STFU
Has AP paid Obama any royalties for using his face to sell their periodicals/articles/newspapers? Probably not.
It's a fair use situation. AP owners are just pissed off they didn't think of it first.
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... and I'm just waiting when I own the trademark of the word "THE".
.
Starve the WAR Beast...
... Feed Americans.
anybody?
A few points I'd argue for the artist (SF):
Obama, as a political figure, in office, is "public domain." His image is fair use for commercial purposes, unlike a celebrity, or copyrighted image/object. It's not a case of the AP photographer having set up props/lighting and staged a truly unique image.
It would be perfectly legal for anybody to take a photo of Obama from that identical angle, in those identical clothes, in that identical expression, and own the copyright to that photo. Many photos as similar to the AP photo as SF's painting may already exist.
There is nothing remarkable about the angle/expression in that photo that was copied by SF. Not the unique lighting, not the environment Obama, the public domain figure was in. Every politician in the last 50 yrs have been photo'd from that same angle.
Press photographers have access to political figures that private citizens do not. Obama is probably not going to sit and pose for protester-type painters while in office. How is any graphic artist to draw/paint the President without using the media for reference to what he looks like?
SF did not interfere with the commerce of the AP. The AP's use of the photo was to sell the article the photo illustrated and the newspaper the article was printed in. His painting will only have enhanced the value of the AP photo, by association.
The AP photo may be copyright, but SF's painting is of Obama looking up. The AP photo is not directly used, (ie; photocopied and applied to a montage), and the angle of Obama is not copyrightable. The AP photographer cannot restrict all further images of Obama from that angle. SF created an original work of a public domain figure, based on the angle the AP photographer used.
SF may as well have caught a glimpse of Obama on tv in that same pose/angle/expression, and done his painting from memory.
Is an artist restricted from painting the Lincoln Memorial from any angle previously photographed and published?
If an essayist were to write an essay based on the AP photo would he be infringing?
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Yahoo has for the longest time been one of my main sources for "MSM" news. They have always used a lot of AP articles. Over the last several years I have noticed that AP in the wording and filtering of fact content has become more and more oriented toward a right-Republicans presentation of news.
So it doesn't suprise me that AP is suing because it's all about bucks anyway and with the corporate media, bucks will always take precedence over truth and justice.
Same with Yahoo. They are getting worse as well. As a contect provider, you see more and more FOX, ABC, etc., and less and less MSNBC.
I now mostly get my news from C&L, google, BBC, Salon, The Guardian, French news sources, NYT (with some caveats), and on and on. Basically you have to read at least 10 news sources on a topic to get all the facts these days.
Back to the point: AP is probably a hair to the left of Fox News, which isn't saying much.
cares? I feel that that painting of President Obama crystallized what many of felt about him and where he could lead us as a country and you wouldn't get that from the photo.The artist rendition of that is priceless.In the big picture it's one more petty argument.
I point out the celebrity digital faking laws. This guy painted his by hand. There is no case AP will be tossed out of court.
http://www.allbusiness.com/services/motion-pi...
It couldn't happen to nicer people. SNARK!
Artists are such bitchy queens. This is just sour grapes.
REALLY? Artists are what?
Do you understand fair use law or the art of abstraction. You probably spout rush limbaughian crap all the time and say you thought of it! Do you pay him for quotes?
I once worked in a library research room, and very few people, even college professors could understand fair use laws.
Diabolus est Deus Inversus
be aware of intellectual property law. I, for one, think an acknowledgment of sources would certainly suffice
Copyright has gone crazy. Do people realize that there is a reason Sherlock Holmes wasn't mentioned by name in the film League of Extraordinary Gentlemen. The name was still copyrighted. That's _insane_. With the internet's "velocity of information" copyright should now be significantly _shortened_, not lengthened. Much of the impetus for this comes from Disney being terrified of what people might do to Mickey Mouse if they got their hands on him.
So this is just the AP wanting a taste of the action and thinking they can get it in this legal atmosphere. The artist has significantly altered the orginal and recontextualized it. Fair use. Same as a Warhol print from 40+ years ago when America wasn't up to its ass in lawyers and repression yet.
for use of his image.
Should AP be foolish enough to go to court it will be a slam dunk win for Fairey. He easily meets all 4 criteria for Fair Use. The purpose was non commercial, the subject work was of a news worthy public person who was not compensated for his original image by AP (under FAIR USE!),the work was so substantially transformed by the artist so as to be far more than a mere "derivative" work and AP suffered no loss of potential market due to the work, indeed they are now achieving a far greater market precisely due to its connection to Fairey's iconic work.
Perhaps AP should be compensating Fairey?
Actually, whether or not money is being made has absolutely no bearing on copyright, UNLESS the copyright holder can prove that the use of the work somehow adversely affects their ability to benefit from their own work. So, unless the AP can show that Fairey's work infringes on their ability to profit from the photo - which isn't likely - then there's no issue with the work being commercial.
The issue in this case is actually one that's been argued for years, although it's coming up more frequently. At what point is a work so modified that the new work is actually original?
My personal opinion - Fairey's work has significantly altered the original photo (which was a pretty stock photo that probably could, and will, be essentially duplicate hundreds of times - it's just a semi-profile angle, nothing original), and his new interpretation qualifies as an original work on its own merits.
...the most important factor in Fairey's fair use argument here is that he created a "transformative" work. He used a copyrighted image, but altered it in such a way that it became radically different than the original in appearance and in purpose (this is what his lawyers will argue, probably successfully). this is the exact same thing Andy Warhol made a career out of. The fact that Fairey didn't seek to profit immensely from his work is another factor that will cut strongly in his favor. It's not a black and white issue, but I think Fairey has a very strong case here. Perhaps that's why a guy who lectures on copyright law at Stanford has agreed to represent him and feels they have a strong case.
Also, the photographer plays absolutely no part in this discussion, as he never owned a copyright on the image from the moment it was snapped. As some have mentioned, because he was working for AP on assignment when he took the picture, he had no rights in his own photo. So the people saying Fairey should have at least asked the photographer's permission are way off the mark, as that would have had absolutely no bearing in whether AP could sue.
I still hate that poster.
Looks waaaaayyy too much like those celebrating Che Guevara.
Diabolus est Deus Inversus
I just saw an interview with the photographer at Photo Business News in which he claims he never signed any contract with AP.....
If Romeo & Juliet were written now, Shakespeare would get sued. Its based on a prior work (Romeo et Julietta). Many of the renaissance artists would do versions of each others works. That's why you often see 'Raphael after Michaelangelo' in art history books. Same thing for classical composers. If the laws of the last 75 years existed for the last 500, we would've missed out on tons of great art. There is very little 'original art' in existence, if your interpretation of 'original' means 'has no relationship to anything previously created'. Should Pete Seegar be suing Led Zeppelin for stealing his riffs? Should Kurosawa sue George Lucas over similarities between Star Wars and The Hidden Fortress?
In our desire to make money, we are killing the arts. We need to find a balance between using something as an element or a reference, and a direct, unaltered reuse of someone else's work. As a professional artist and designer of 20 years, I seen this as a new work, not plagiarism.
And AP needs more journalists and fewer lawyers
"Only one thing is impossible for God: To find any sense in any copyright law on the planet."
[Mark Twain]
PS. There is a 2nd but I don't what too embarrass Mr. Twain. :-)
Amended: If your curious, look at (Judges 1:19)...
Study the symptoms not the virus...
I'm no expert in this area of the law, but I do know there's not many photographers who are willing to give work away for free if they can help it.
In this case, it appears the art created by Fairey is unique, ie not really closely related to the original image. But I wonder if this artist would object to someone taking his work, modifying it, and selling it for a profit without compensating him?
AP should drop their greedy, stupid claim and go away. The artist made fair use of the photo. What he ended up with is an ORIGINAL, UNIQUE work of art that is an enormous improvement over the photo which it does not now resemble in any way. Without the artist's admission, AP cannot prove that he used their photo in the first place. We've all seen dozens of very similar photos of Obama. The artist could have used any one of them--or a composite of all of them. As one person pointed out, AP does not own Obama's face. Obama does. The artist could have simply looked at Obama's face live or on TV and then painted the artwork and it wouldn't look any different than it does now.
Tell AP and all other greedy capitalist pigs to stuff it.
As I understand it, if you alter a previous work by 2% it is not copyright infringement. Think of Andy Warhol and his Campbells Tomato Soup pop art. This lawsuit is BS.
He never paid for use of the Andre the Giant image he modded for Obey all those years, but back then he had no money. Now he's wealthy, so they sue.
This would have never happened if he credited the photog, or created an original piece.
I guess the thing that I find interesting is this poster was made how long ago? And ALL OF A SUDDEN, AP cares? What took them so long to figure it out?
It reminds me of FOX and the Watchmen movie. I'm an artist and I think this stinks of trivial greed. And as far as I understand, Shep DIDN'T make money off this poster, but I could be wrong about that.
The AP has its head up its ass if it even pretends to believe its own argument here.
The Associated Press might have a claim but until Campbell's Soup collects royalties from Andy Warhol's estate, they should just shut the huck up.
Where I stand is that the AP are SCUM! And they can't even do news right so I think it's safe to say that the law is WAY beyond them.
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