Obama Poster

[Bill Pierce]

Shepard Fairey admits using the key AP photo for the Obama 'HOPE' poster and the Stanford law project that was, I presume, backing him for free, has dropped him like a hot potato.

My thoughts - all he had to do was ask and pay a small fee to use the picture legally. He was an idiot who compounded his idiocy by lying about it.

Your thoughts?

http://news.yahoo.com/s/ap/20091017/..._poster_artist

[robklurfield]

yup. that was dumb. especially for a guy who should know better.

[wayneb]

I agree. The concept of "fair use" should be debated and perhaps updated for the times, but lying (to his own lawyers!) didn't help the situation.

Bottom line: he lied to Terry Gross.

[vidgamer]

If he can argue the non-commercial usage, why is there a problem? Why is he being sued in the first place? If I did some kind of derivative work, I'd be afraid of being able to hide behind fair-use. The way things are going, I'm not sure there is much that falls in that category. I wish the government or supreme court, or somebody, could just make a detailed description of what does and does not constitute fair use. I recall years ago there being a lot of controversy about hyperlinking into some websites, but the web was designed to use hyperlinks; I don't think the existing laws work very well for the web.

Shouldn't someone (say, those that commissioned the project and/or used the Hope poster) have checked to see where the original photo came from? I mean, it seems pretty obvious to have come from a photo. Although, I don't understand the distinction of which original source photos he used -- whether it was a crop from one or basically the full frame, it seems the same difference to me. It's a question of whether or not you can take someone else's work and modify it.

This used to be an issue in music; when sampling first took over, people pretty blatantly ripped off samples. One musician said that he takes tiny snippets of sounds from other songs, that the original artist might not even recognize. He said it was like using part of your photo where he only used your big toe. Technically, I don' think you can even pull small bits and use them.

So, having said all of that, if I wanted to make some Obama artwork, I'd expect to have to pay for a stock photo or take my own photo.

As for prior art, that's a good argument against specific patents. I don't know how that applies to copyright in general. (And often, prior-art doesn't seem to stop many things, particularly involving software, from being patented.)

[allthumbs]

No justification for his lie. But it's weird--the article makes it sound like he brought suit convinced that he'd used a photograph identified by a third party, which he later realized was the wrong one but chose to lie rather than clear it up.

But as the article points out, the suit brought by AP for infringement continues and it bears watching.

One of the more interesting complications, in a case with many, is that the photographer, Mannie Garcia, claims that he, not AP, owns the copyright for the photos and has given his blessing to Fairey's appropriation. Garcia also claims that Fairey personally acknowledged that he should have gotten credit.

[35mmdelux]

People will always try to skip out on the tab if they feel they can get away with it..

[allthumbs]

Originally Posted by nikonhswebmaster

Just AP greed, little to do with the art world.

Whether or not greed played a role, the AP really had no choice once the cat was out of the bag. Given the notoriety of the image, they had to at least make a show of protecting work done for AP. They had to do it to protect themselves against accusations of political bias and the perception that it was OK to appropriate AP work, on the one hand, and on the other the idea that AP may not have your back if you do work for them and someone tries to rip it off.

Given a choice, I strongly doubt that AP would have picked this particular case to make that stand. For his part, I think Mr. Fairey had similar reasons for not rolling over easily, given the nature of his work and his business. His position might have been the stronger, at least until this fraud came to light. At this point I think both parties would rather this not go the distance. If the suit encroaches on campaign speech and finance territory things could get extremely messy and drawn out.

[climbing_vine]

Originally Posted by memphis

as it stands, a case could be made similar to the file sharing where Obama could be prosecuted with the same vengeance as the kid that had to pay some exorbitant fee per song - over $100k each -- there's no difference between that and file sharing -- both are violations of the dmca

Hrm? I don't quite understand that.

As to this case, it was dumb for him to lie. But as for people who want to call this stealing, I suggest that you stop taking pictures and destroy your negatives. Every image you produce is a derivative work, and probably less of a departure from the original than Fairey's. Every flower macro and kiss in the street you take, you're stealing someone else's idea and not even embellishing or commenting on it. In any ethically meaningful sense of the word, that's more "theft" than using one of ten thousand nearly-identical face shots of one of the most famous people in the world as the basis for a reworked image.

All simple answers should ride their high horses back to fantasy land, asap.

(That part wasn't meant for you, Memphis, but people like this JSU person.)

[Steve M.]

He had no need to buy the pic originally (I'm sure he would have had to kick back royalty fees on profits too) because his image was not a direct copy. Warhol did similar takeoffs. Just going from a photo to a painting or screen print means the image has changed substantially. The error he made was lying about which image he used, and then attempting to destroy evidence. What an idiot. But you don't have to be smart to be a good artist, you just have to be good, and the image that he created (not copied) is a great one, so who cares how the courts rule? They are just protectors of the status quo. The main thing is the painting, and it rocks.

[Al Kaplan]

As long as he can get a lawyer to take the case everybody involved, including the lawyers, gets publicity. It won't even matter who wins in the end. It's all about getting the publicity.

[johnweston]

The entire case is absurd. I am sure that the photographer next to Mannie Garcia on that day was taking pretty much the exact same photograph. Obviously it would be absurd for the AP to sue that guy, so why does it make sense to take action against Fairey, who created something far more dissimilar?
I believe the AP is receiving a lot of support here from photographers with an unrealistic belief in the AP photograph as a serious work of art.

[Chriscrawfordphoto]

Originally Posted by nikonhswebmaster

Well everyone is off on a tangent, which has little to do with the prior case law on non-commercial work. Have fun picking at each other.

Fred,

The Obama campaign hired him to create a poster, and that painting is what he delivered. That's commercial art.

[JoeV]

This is a crucial point you make, about the viral dissemination of the work. What a complex legal tangle this would make were everyone involved to pursue some settlement in the courts: the artist could argue that multitudes stole his work (the original series of 350 being the bone fide work); the photographer could sue AP (and vice versa) for ownership rights over the original photo; the Obama campaign could even get involved (although I seriously doubt that they would).

I don't think there's a serious case here against the artist. If there were, this would signal the death-knell of art, which has always straddled the fuzzy gray area between truth and commerce. To sue the artist is equivalent to the Campbell's soup company suing Andy Warhol for his pop-art imagery. In that case, they were smart enough to know that a)they had no case that would hold up against Warhol in court, and b)it was free advertising. In the case of AP, if they were smart they should just let this one go. But I can see where they're coming from: they're defending not only their ownership of the original photographic image (which they'd better do taking up a case against the PJ), but also they're defending the veracity of AP against the claim of being partial toward Obama, thereby jeopardizing their "journalistic integrity" .. which I believe to be a mental construct anyway.

~Joe

PS: I want to also add that the whole flap over him lying about how the image was made is an over-blown non-issue. This is essentially a national argument over an artist's working methods. Artists have always been secretive (or at least dodgy) about their methods. If this does go to some legal outcome against the artist, I'd like it to signal the return to plein air painting. Too many paintings in galleries are derived from photographs; I've even seen shallow DOF effects in paintings, optical artifacts from the camera that a plein air painter would never render on a canvas. This argument is no different.

[mawz]

Fairey's work is primarily commercial (he sells posters/t-shirts and such) and his entire career is based on plagiarism.

He made his name by misappropriating the late Andre the Giant's image (without a release, which is at best questionably legal) and most of his work is plagiarized from progressive or communist artists, usually in the form of repurposed propaganda works.

[rxmd]

I don't know how American law works regarding the non-commercial status of art, but over here immediately selling your newly-created poster 350 times would seriously jeopardize your non-commercial argument.

[ZeissFan]

Much of a person's particular view on this case depends on their view of photography.

You must ask yourself this: If you had shot this photo, and it became the basis for someone's well-known poster, would you feel that your work had been stolen? Or would you consider it fair use?

[Al Kaplan]

It reminds me of the Kenny Rogers song "The Gambler" that goes "...know when to hold 'em and know when to fold 'em and when to get up and walk away..." Litigating only makes the lawyers rich.

Anybody want to buy pix of one of Andy Warhol's actors? I shot them myself...LOL...before he ran off to live at "The Factory" that Andy had.

[climbing_vine]

Originally Posted by JSU

Maybe you should look at what the courts have said in prior cases of copyright issues. Unlicensed use is considered theft.

You're simply wrong, thankfully. There are many cases that do not require licensing. They are affirmative defenses codified by Congress and left up to the courts to interpret.

And no I won't destroy my negatives. My vision as it is recorded on film are my images and I will protect that vision as should anyone else. What I see and photograph isn't exactly what someone else sees.

Do you honestly think you're that unique? I'm not being rude, I'm serious. I doubt it. I know I'm not. I know that most of the world isn't. It's possible that you're a visionary artist hanging out on RFF in your spare time, but it seems unlikely.

Here's an honest question: what makes this image worthy of any protection beyond rights to distribution of the original, unaltered version? "Because it's the photographer's property" is unconvincing to me. That's a good reason that the original version shouldn't be used on the cover of the WSJ without compensation. But it is not a good reason (imo) to bar any derivative work. Why? Because there is nothing "special" about the image. Obama's face is NOT the AP's property. Dozens of other photographers took the same picture at the same time, and thousands of others that are nearly identical over the course of the last three years. A robot could have (and probably did, in a very real sense) taken that picture. What Fairey is working with is Obama's face, not a Mannie Garcia work of art. Neither the AP nor Garcia have any legal, ethical, or moral claim on Obama's face, and in this case that is ALL the image is. Nothing else, nothing of the photographer.

If you disagree, it'd be instructive to hear why. You might have good reasons and some of us could learn something.

[climbing_vine]

Corollary: if all Garcia did was point the camera (which he did the same as everyone else, with essentially no creative choice), couldn't you make an argument that the programmers of the Nikon/Canon firmware and software, and whoever did the post-processing on the image, have far more rights to it than him or the AP?

The law doesn't allow for that, but from a moral standpoint I'd find that a very persuasive stance.

[climbing_vine]

Originally Posted by nikonhswebmaster

I have actually been pretty didactic about this issue in my posts. This is, in some specific commercial forms, somewhat up for discussion in case law, but for the most part, at the appeal level, it is settled.
...
e.g. I can take a photo of your work hanging on a wall or in a book and then, in that context, it is my work. My current Avatar, appears to have someone else's art as a setting (met roof garden)?

Yes indeed. I'm sure someone smarter than me has already noted this, but I suspect that five years ago the AP wouldn't have pursued this. I think they're rolling the dice on a long-shot with a huge payoff, if they can get a more restrictive stance on derivative works out of the Roberts/Alito court. Leaving larger politics aside, there's little doubt that the SCOTUS has become more friendly to a sort of micro-mercantilism worldview in which property is a sort self-evidently deserved grant from the aether, and culture and human realities (that no-one's intellect is an island) don't enter the conversation. I think it's still a long shot that they'll go as far as the AP is trying for here, but apparently the AP thinks that chance is worth the cost.

[robklurfield]

Fair Use doctrine MIGHT have been on Fairey's side IF he hadn't lied, destroyed and faked evidence, and done other rather weaselly things. When your own lawyer bows out of your case, it's generally not a sign of your good faith, honesty or the strength of your contentions. Those of us who are artists, journalists or just amateurs, do benefit from the protections under copyright law on Fair Use. Cheating doesn't help the cause of those who justly use the benefits of the doctrine to create new and original works. Fairey's mistake wasn't using the AP's shot of Obama; it was the way he used and all the slimy, sneaky, snarky stuff he did to cover up his poor judgment. Dumb. Just plain dumb.

[climbing_vine]

Originally Posted by robklurfield

Fair Use doctrine MIGHT have been on Fairey's side IF he hadn't lied, destroyed and faked evidence, and done other rather weaselly things. When your own lawyer bows out of your case, it's generally not a sign of your good faith, honesty or the strength of your contentions. Those of us who are artists, journalists or just amateurs, do benefit from the protections under copyright law on Fair Use. Cheating doesn't help the cause of those who justly use the benefits of the doctrine to create new and original works. Fairey's mistake wasn't using the AP's shot of Obama; it was the way he used and all the slimy, sneaky, snarky stuff he did to cover up his poor judgment. Dumb. Just plain dumb.

Your disdain for him is all well and good, but your reasoning is off. Whether his use was "fair" or not is in no way (either under US law or in any rational ethical sense) affected by his later actions. They're just not connected.

[robklurfield]

Brian, I'm no lawyer, so I can't argue the US law; I'm a layman on this.

As to the ethics or morality of what he did, we can all reach our own conclusions. No dispute from me there. However, if didn't feel himself that he had done something wrong, why on earth would he put so much energy into attempting to cover it up?

In a post-Watergate world it is oft said that the cover-up is frequently both worse than the crime and often the cause of the culprit's downfall. In any case, Bryan, I do think you're right about the subsequent actions having no affect on what he did earlier. Except, of course, that the later actions DO color our perceptions of him. Rightly or wrongly.

A judge instructing a jury in such a case would no doubt give instructions to consider the actions in question without considering what happened later. Nevertheless, a jury, being human, might let their prejudices seep into their deliberations. Maybe, I'm guilty of the same.

I actually think the Fair Use doctrine is a really good and valuable thing that has been clouded by silly and severe misjudgments on the part of Mr. Fairey. I might be guilty of being clouded myself.

Originally Posted by climbing_vine

Your disdain for him is all well and good, but your reasoning is off. Whether his use was "fair" or not is in no way (either under US law or in any rational ethical sense) affected by his later actions. They're just not connected.

[vidgamer]

Originally Posted by nikonhswebmaster

According to Yahoo.com, and other news sources, the work was viral, not even donated, not commercial or commissioned, it was clearly not work for hire, or the Obama campaign would the the defendant, not the artist.

"Fairey may have earned from the design, though he has often said he did not personally profit from it."

I read an article that said that the poster was sold at at least one event for $100 apiece with signed copies for $500. Now, maybe the artist did it for free, and someone else was making money -- so who is liable? AP didn't get their cut and someone else is making money from part of their work. Doesn't seem exactly fair. The fact that AP is a large corp is beside the point.

And where is the rule that you can copy as long as you don't plan on making money for it and allow someone else to make money off of it? (Or even if no one makes money off of it?)

According to WikiP (not always reliable of course)

Not quite the same legitimacy as the old fashioned encyclopedias or other media. Good (reliable), cheap, fast -- pick any two. Wikipedia is cheap and fast.

"The design was created in one day and printed first as a poster. Fairey sold 350 of the posters on the street immediately after printing them. It was then more widely distributed—both as a digital image and other paraphernalia—during the 2008 election season, initially independently but with the approval of the official Obama campaign."

They were created as art, not commercial illustration. After the first images were sold on the street, the artist lost all control of the image, and made no attempt to assert any rights. He later created other posters, with approved images, supplied by the campaign, is my understanding.

He is only being sued for the one original poster, not the Obama campaign posters.

So, he did make money off of the disputed poster? So much for non-commercial!

At first, I thought this story was not very interesting, but I think the Copyright laws are a bit too restrictive, and the general story is interesting.

[vidgamer]

Originally Posted by climbing_vine

Corollary: if all Garcia did was point the camera (which he did the same as everyone else, with essentially no creative choice), couldn't you make an argument that the programmers of the Nikon/Canon firmware and software, and whoever did the post-processing on the image, have far more rights to it than him or the AP?

The law doesn't allow for that, but from a moral standpoint I'd find that a very persuasive stance.

If I record a song using my Kramer guitar or Casio keyboard, do they get equal billing? After all, at least in the case of a keyboard or electronic instrument with sampled sounds, they are, well, sampled sounds.

Actually, the sampling music software I use explicitly says "royalty free", so at least they clarify that. But in the case of musical instruments and cameras, I think the understanding is that the tool is expected to be used to create work, otherwise the tool is not very useful.