February 10, 2009

Shepard Fairey sues AP before it sues him.

"Mr. Fairey’s lawyers... contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a 'stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot [Mannie] Garcia took. The suit asks the judge to declare that Mr. Fairey’s work is protected under fair-use exceptions to copyright law, which allow limited use of copyrighted materials for purposes like criticism or comment."

I hope Fairey wins this one. To make an Obama poster, an artist has to refer to some image of Obama, and Fairey chose a perfectly generic photograph. How else are you supposed to do an artwork about a famous person? Garcia's image was mainly the raw material Obama provided by having a face. I suppose Fairey could have looked at a couple images and made a freehand drawing or morphed a series of photographs, but he still would have needed to appropriate someone's photography.
Further complicating the dispute, Mr. Garcia contends that he, not The Associated Press, owns the copyright for the photo, according to his contract with the The A.P. at the time. In a telephone interview on Monday, Mr. Garcia said he was unsure how he would proceed now that the matter had landed in court. But he said he was very happy when he found out that his photo was the source of the poster image and that he still is.
Well, if this were a Civil Procedure exam, that would be a good joinder problem.
“I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”
No, it's really not unique, other than the high profile of the artwork and the consequential strong whiff of money. I hope Fairey uses the power he has acquired to establish the rights of smaller artists to use news photographs to make artworks about celebrities.
He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”
I ♥ Garcia. But let me say that his pride in the new and brilliantly expanded life of his photograph is something that belongs in the law, something that should affect the fair use doctrine. What if Garcia had been asked at the outset: Would you accept the use of your photograph in this manner, with no money going to you, or would you prefer that the artist appropriated someone else's generic photo of Obama's face? Because it's obvious that Garcia would say yes [— please use my photograph —], I would like to see the court hold it to be fair use.

61 comments:

The Senator said...

No! Not a joinder problem!

/1L

Pogo said...

That's a pretty leftist use of things: "What's yours is mine".

How is this any different than rappers stealing bits of music from someone else? They seem to manage to pay a piece of their income to the people they swipe from. Why not here?

He didn't change the image enough to suggest it was a wholly original artistic take on the image. He just added color like any fool could do in Windows Paint.

Hell, George Harrison lost the 'My Sweet Lord' lawsuit when the court found it too similar to a completely unsimilar 'He's So Fine' by the Chiffons. And this gets a pass?

The law is an arbitrary ass; it shows considerable favoritism.

I shouldn't be able to swipe an Ansel Adams photo and call it mine just because I tweaked it in Photoshop.

Ann Althouse said...

"That's a pretty leftist use of things: "What's yours is mine""

Property is defined by law, and there is copyright law with a provision for fair use. The question is how to apply the fair use provision.

Note that I copy portions of news articles all the time. Is that permitted? Can't you see why it needs to be permitted?

Ann Althouse said...

Different courts look at different fact patterns. The case against George Harrison was actually very strong, but still, perhaps it was wrongly decided. Basically, artists need to appropriate a lot, and the bottom line issue in copyright is the benefit to the public.

traditionalguy said...

What about the new Spreading Around Doctrine? In the digital age we have come to expect free stuff and we get it. A larger question is how can we privatize images and charge for them. The Chinese iqnore that property right. I mean there can be no private property unless an enforcement tool exists to penalise its being taken. Since the digital space is mostly unpoliceable, the law must stop short of trying to do impossible acts to enrich our rulers.

AllenS said...

I need to start a blog. How about AlthouseS.blogspot.com.?

Pogo said...

" Basically, artists need to appropriate a lot, and the bottom line issue in copyright is the benefit to the public."

The US seems to go to both extremes; refusing to comply with the original intent and allowing the public to own the copyright after -what is it?- 50 years, but then permitting outright appropriating like this without compensation.

The law is not the law.

The law is merely a toolbox. It is a hammer to use against some, a crowbar into others' property for others. It shows favoritism and responds to fads. It is not blind, and puts its thumb on the scales when certain outcomes are desired (e.g. involving race or gender). It is plaything for those in power, to be used against the weak.

The law has not been the law for many many years. Hell, Kelo means the gummint can pretty much take what it wants when it wants whenever the desire hits them to do so.

Ann Althouse said...

@AllenS That wouldn't be a copyright issue, but a trademark issue.

SteveR said...

How about if he used "The Divine AllenS"?

traditionalguy said...

Pogo... Our deeply held belief that things can be owned has evolved from a Ruling power sharing its means of enforcement (violence) with the rest of us in measured and controlable ways. From the American indians view point, nothing is owned by a person, although tribal territory is defended by the tribe( with violence). What is an inheritance tax? It is the ruler's assertion that his limited permission for his subjects to own their own stuff is subject to the ruler's powers. Attorneys are bought and sold for fees, so we are seen as a commodity too, but without Courts and law and lawyers there is no property. The good old days of a lawless territory of Indians and mountain men, like Kit Carson who took California's surrender with 8 other men, has passed away for now. Maybe it's gone up to Alaska?

AllenS said...

HA! She fell into my vortex!

chuck b. said...

My understanding is that rather minimal alteration suffices to avoid copyright infringement...

This is an old tradition in art. As Stravinsky said, "A good composer does not imitate; he steals."

grandrants said...

Eh, the guy is a plagiarizing minimally-talented self-promoting hack.

I'm not a lawyer, neither do I play one on TV, but it seems to me that Pogo has the right of it. Fairey cribbed someone else's image, did some minimal PhotoShop on it (leaving the original image clearly identifiable as Garcia's), and started selling it. He's laughing all the way to the bank.

There's a seriously good smackdown of Fairey as a repeat offender plagiarist at http://www.art-for-a-change.com/Obey/index.htm that's well worth reading.

Pogo said...

Following grandrants link you can find this criticism:

"One important thing to acknowledge is that Fairey is not just appropriating, but also copyrighting images that exist in our common history. Posters and graphics made in the heat of political struggles are often made by anonymous individuals or groups that want to keep the images in the public domain for use in further struggle. It is unfortunate that Fairey is attempting to personally capitalize on the generosity of others and privatize and enclose the visual commons (as seen by the prominent copyright symbols on his website and products)."

Fairey wants to play it both ways: to steal via "fair use", but then claim copyright ownership over what he has stolen.

Walt said...

I love you Ann.

"Here are some of Fairey's other masterpieces. No joke. Most of his works are along these same lines (anti-American, pro-communist propaganda)."

grandrants said...

"Most of his works are along these same lines (anti-American, pro-communist propaganda)."

Yep, and most are derived from someone else's original artwork.

MadisonMan said...

Eh, the guy is a plagiarizing minimally-talented self-promoting hack.


Which one?

grandrants said...

Obama. No, um, Fairey! Yeah, that's the ticket!

Dust Bunny Queen said...

Note that I copy portions of news articles all the time. Is that permitted? Can't you see why it needs to be permitted?

Yes, but you don't intend to claim the words as your own and make a profit on them. The news articles that you and many others quote are just that...quotations and often are linked/referenced to the original artist. You don't re-arrange a few words and then falsely claim that the author's words are your own

Fairey used someone else's photo without their permission. Slightly tweaked it and claimed it to be his own original artwork when he was merely "quoting"

Pogo said...

To my eyes, Fairey merely has stolen a car, repainted it another color, and then claims to own it, and wants to sue you for trying to get it back.

SteveR said...

Manny, they are going to take things away from you for the common good.

The Crack Emcee said...
This comment has been removed by the author.
The Crack Emcee said...

"I hope Fairey wins this one. To make an Obama poster, an artist has to refer to some image of Obama,..."

Bullshit. I made this drawing of The Gipper from memory. But even if you were correct (you're not, but let's say) there's still absolutely no reason what-so-ever the Fairey had to make it look like the original.

You're defending a lack of imagination, Ann.

jdeeripper said...

Interesting.

Do you know there is an old Celtic legend that claims that when a faithful dog dies his soul is transported to the afterlife by the shepherd fairy?

Of course you didn't BECAUSE I JUST MADE IT UP.

It's MY story. Keep your grimy little commie paws off it.

traditionalguy said...

I only have one question. Has Obama paid his royalty payment to the Karl Marx Estate? Ideas, even if conveyed in an "image" over inter-human media are borderless.

tim maguire said...

I'm rusty enough on copyright law that I'm not sure whether this exception this falls under fair use or not, but it seems to me Fairey has a strong argument for transformative use.

The original photograph is a pretty generic pic of a public person and Fairey turned that into something quite different, an expressive piece of art (whether certain of the commenters here think it is good art or not is immaterial). The AP photo is almost incidental--it could have been another as easily as that one.

Pogo said...

"it could have been another as easily as that one."
But it wasn't, was it?
He found it iconic.

What's the big deal if he shares some of his income with the photographer? Is there such a thing as a generic photographer whose work you can take because you can claim it is incidental?

Dust Bunny Queen said...

it could have been another as easily as that one.

But it wasn't. It was THIS one.

If I took a downloaded a generic picture of your child, wife, dog, house that you had on Flicker or Facebook and then generated a photoshopped version, put it on t-shirts sold it nationwide and made a ton of money on your wife's photo. Would you object?

TMink said...

"How else are you supposed to do an artwork about a famous person?"

You take your own damn photograph instead of stealing somone else's work maybe?

How hard is that? Sure, the image he made is iconic. That has nothing to do with his stealing the image.

He did the same thing with his Angela Davis image. After seeing his version, I thought I recognized the pose. So I googled her and there it is on the first page of images that came up. He merely colorized it to make it look like a cross between a Hatch Show Print and Soviet realism. Oh, he did flip the image left to right. More probably right to left as I think of it. 8)

So he is just a thief with talent. If he drops the thievery, things would be hunky.

Trey

TMink said...

Crack MC, nice drawing! I wish I had that kind of talent and knew how to use it like you did.

Great work, and a funny illustration.

Trey

MayBee said...

Fairey didn't give Garcia any credit until the AP went after him, did he?

Fair use is one thing, but lack of credit seems- if not illegal- entirely ungracious.

Skyler said...

I suppose Fairey could have looked at a couple images and made a freehand drawing or morphed a series of photographs, but he still would have needed to appropriate someone's photography.

Or he could take his own photo. Or even draw the man's face. It seems he's trying to have it both ways.

And it's peculiar how so many communists tend to be around Obama.

I've said before that the fall of the USSR has had the effect that now they no longer are in complete control of the communist movement and the inevitable horrors of communism are forgotten. The siren words of communism are again popular. We're doomed.

MadisonMan said...

.... put it on t-shirts sold it nationwide and made a ton of money on your wife's photo. Would you object?

That depends. Is my wife the President? If she is, then No I wouldn't -- even if it's my picture. As Garcia says, Obama's portrait is a very unique [sic] situation.

JAL said...

I suppose Fairey could have looked at a couple images and made a freehand drawing or morphed a series of photographs

Althouse -- I know you went ot art school also, and being a lawyer too ...

I am surprised at your take. I do not think his "[appropriation] someone's photography" when it is that clear and unambiguous is defensible.

Fairey used a specific photograph that had a specific pose. As others have mentionesd ... let him take his OWN photograph. Let him CHANGE the pose of the "appropriated" photograph(s)..

Photoshopping (or whatever techniques he used) color lawyers over the contours on the face of a specific pose of President Obama and marketing and SELLING it is wrong, and if it isn't illegal it should be. This is not "fair use" -- as in using quotations and excerpts of presentations and even movie clips for education and even illustration or brief entertainment ... and NOT for financial gain.

I do some writing and speaking and have run into situations where people and entities (the AP, I think) do not want their pictures, columns used AT ALL... in violation, I think, of the spirit and intent of fair use.

I do not see how one can simply blow off the AP photographer (or the AP or whoever actually "owns" the photograph). He took the picture and it is a distinctive pose.

Fairey is wrong. He could have changed it and did not.

Pogo said...

"As Garcia says, Obama's portrait is a very unique [sic] situation."

All the more reason he should have taken care not to expropriate other's work.

In college, plagiarism can result in expulsion. Historians can lose their reputation for cut-n-paste theft. it is usually derided and mocked.

In the art world, it results in sales and cries of special treatment. It is routinely lauded by other artists.

I think it explains why artists are also often leftists and outright communists.

Joan said...

Do you know there is an old Celtic legend...

jdee: LOL. Thanks.

MM: That depends.

Why? If it's your photograph that's making someone else a ton of money, why does it matter what the subject of the photograph was? I'm not seeing how that's relevant at all.

Bissage said...

No comment.

Simon said...

Pogo said...
"The US seems to go to both extremes; refusing to comply with the original intent and allowing the public to own the copyright after -what is it?- 50 years, but then permitting outright appropriating like this without compensation."

Do you mean the original intent of the copyrights clause? It authorizes - but does not require - Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (emphasis added). I would think that the text is so clear that it would be surprising to attribute any intent to it other than its plain meaning.

Bender said...

The original photograph is a pretty generic pic of a public person and Fairey turned that into something quite different, an expressive piece of art

That is exactly backwards. The original pic, that is, Obama's head-tilting upward looking pose is what is compelling about the piece -- not Fairey's vandalization of it by changing a few colors.

For him to claim that this is not infringement, or to claim fair use, is like someone appropriating someone else's song and claiming that it is not infringement because it is sung in a different voice.

If he wants to use it to merely change the color scheme, that is fine, but as both a legal matter and a matter of equity and fairness, if he is going to make money off of it, he should kick some of that money back to the creator of the original image, i.e. pay a percentage royalty. Simply using the image and profiting off it is not fair use, it is theft.

Simon said...

Incidentally, I don't see the copyright problem here if Garcia in fact owns the copyright and doesn't object to the use. But for Fairey beating the AP to the courtroom, this is kind of like the SCO v. IBM litigation, is it not? Party A (SCO/AP) complains that party B (IBM/Fairey) has infringed their copyright, and party C (Novell/Garcia) intervenes to say "hold on a minute, party A, actually I own the copyright at issue, not you."

Bruce Hayden said...

I'm not a lawyer, neither do I play one on TV, but it seems to me that Pogo has the right of it. Fairey cribbed someone else's image, did some minimal PhotoShop on it (leaving the original image clearly identifiable as Garcia's), and started selling it. He's laughing all the way to the bank.

Ok, something I may know something about.

It is fairly well acknowledged that Fairey created a derivative work. And, yes, derivative works have their own copyright to the extent of the changes made to the underlying image.

BUT one of the exclusive rights of a copyright owner is the authorization of the creation of derivative works. So, the creation of this derivative work without permission would be infringement.

BUT, Fairey is asserting the defense of Fair Use. That determination is invariably fact intensive, but is dependent upon the four factor test found in 17 U.S.C. § 107. Limitations on exclusive rights: Fair use. My guess at a first glance, without a lot more research, is about 50/50.

Of course, then there is the question of who has the right to sue for infringement, and, thus who owns the original work, AP or Garcia. Likely AP doesn't have an exclusive assignment (in writing, of course), so its only claim to litigation here would be that it was a Work Made for Hire (see 17 U.S.C. § 101. Definitions). And that determination would revolve around what agreement AP had with Garcia (I would guess, again w/o research, that the work MIGHT be w/i the definition, assuming it was properly included in an contract).

So, all in all, not an easy determination.

Now for the interesting CivPro issue to me - this is apparently a suit for declaratory judgment. Fairey would, of course, have to show that the AP was likely to sue him for infringement. But also, they may find themselves in an awkward position that their easiest defense would be lack of ownership. Also, is the defendent just the AP? Or is Garcia also named? I probably would have named both, just to be safe, and to overcome the argument that the AP didn't own the work.

Bruce Hayden said...

Incidentally, I don't see the copyright problem here if Garcia in fact owns the copyright and doesn't object to the use.

Simon is, of course, correct here. If Garcia still owns the picture, he can authorize the making of a derivative work, and since it is not an exclusive assignment or license, it need not be in writing. Indeed, a statement that Garcia doesn't see anything wrong with the copying would likely be sufficient.

Kylos said...

It seems apparent that the photograph was not merely used as a model or reference, but is the physical source material for the posterized image. Copyright protects rights to derivative works. The photoshopped image is still readily recognizable as a direct manipulation of the original. There are only minimal differences in shape between the two, Fairey's image is rotated 8.5º from the original, it is minimally scaled, and vectorization and posterization have removed or distorted a few features.

He didn't simply use Garcia's image as an inspiration, he co-opted for his own use.

Kylos said...

Also, I agree with Bruce on derivative works and Garcia's apparent satisfaction with the work indicating implicit permission, if indeed Garcia maintains any rights.

dick said...

I think this is really almost like the Michael Yon/Michael Moore lawsuit where Michael Moore used a Michael Yon photograph (the one of the officer carrying the wounded baby trying to get help for it, the one he won the photo of the year award for) without permission and without giving him credit for it. Michael Yon sued and won the case.

tim maguire said...

Pogo, Bender, Dust Bunny Queen, you are welcome to try those arguments before the judge, but I don't think you'll get too far. dick, this whole discussion is about the difference.

As others have pointed out, there could be no Shakespeare today. Copyright law would have put him out of business.

Matt Eckert said...

Wait a minute I thought Anderson Fairy was on CNN and the Shepard guy was on FOX.

What does any of this have to do with the AP?

Pogo said...

"you are welcome to try those arguments before the judge, but I don't think you'll get too far."

Exactly. That's why I started out saying the law is not the law, but a tool for manipulation.

There are no precepts, only whims; there is no property, only power.

The law is an ass.

Revenant said...

How else are you supposed to do an artwork about a famous person?

(1): Go to a public event he's appearing at and take a picture of him yourself.

(2): Ask him for permission to take a picture in private.

(3): Rely on your memory of his appearance.

veni vidi vici said...

Sorry, you're wet on this one (and I'm not talking about those awful tampon earrings either).

Had Fairey wanted to play Fair(ey), he'd have bought a license from a stock photography house and then been free to use it (and make money from it) to his heart's content. Would've likely cost him a few hundred dollars, tops.

Instead, he takes. So wonderfully "new economy" of him. He takes, AP and photog get nothing (not even attribution, which belies any claim to sympathy or fair use by this serial thief - who never attributes any source material, instead holding himself out as a revolutionary genius), and he gets wealthy peddling "HOPE" posters for $70 a piece.

You've gotta be kidding me, "fair use". This is one thread where chiming in with "And you, a law professor!" would be wholly appropriate.

Shane said...

Pogo falls victim to the common mistake of equating intellectual property for physical property. They are not the same. If anything, AP or Garcia (whoever the real rights owner is) has had its intellectual property value INCREASED by Fairey's work. And to answer the earlier question about rappers stealing bits of music from someone else - Hip Hop in its early days relied heavily on unlicensed sampling.

And of course most bloggers are sympathetic to the idea of fair use - quoting other people's writing, embedding other people's audio or video, and using other people's photographs are essential activities for blogging.

I'm not a lawyer, but it seems like Fairey's poster does not pass the 4 prong Fair Use test, but it certainly comes close (in my non-lawyer opinion). I still hope Fairey wins, because it's close, and because of the common-sense observations that a) the specific photograph chosen wasn't that integral to the value of his work and b) the original copyright owner wouldn't have ever considered making anything like this work.

He could have avoided it entirely by using any number of Creative-Commons licensed works through any CC-friendly image search engine. Or even arguably Barack Obama's own Flickr page, whose photographs are CC-BY-NC licensed. From what I understand the poster wasn't a commercial work until after it was popular enough for the Obama campaign itself to start using it.

Pogo said...

"If anything, AP or Garcia (whoever the real rights owner is) has had its intellectual property value INCREASED by Fairey's work."

That "increase" and $4 each buys them a grande latte.

What hooey.
Show me the money, Shane.

Palladian said...

Is it ok to want both parties to lose?

Shepard Fairey is a lucky hack self-promoter. He's been ripping people off since his time at RISD. Part of Fairey's whole execrable "OBEY" thing was basically ripped off from Barbara Kruger, right down to the Futura Bold Oblique typeface and the red and black.

But lawsuit or not, Fairey gets the last laugh. The National Portrait Gallery has "acquired" Fairey's OBEY OBAMA image. I don't know if that means it was donated to them or purchased (with your money!). Shepard Fairey's Soviet-Maoist inspired poster art will hang in the galleries along with Gilbert Stuart, forever. Mannie Garcia's original photograph of Barack Obama will not.

Palladian said...
This comment has been removed by the author.
Revenant said...

>Pogo falls victim to the common mistake of equating intellectual property for physical property. They are not the same. If anything, AP or Garcia (whoever the real rights owner is) has had its intellectual property value INCREASED by Fairey's work.

That's an incoherent argument. The problem with unauthorized use of property isn't loss of value -- it is loss of CONTROL.

Say you own a house. It is a hideous color that almost nobody likes, but you -- being a fan of bright pink and green -- do. I take it upon myself to paint your house charcoal gray with white trim, increasing its market value by $5000. You can still quite rightfully sue my ass for doing that, even though I increased the value of your property. The reason is that you didn't want the damned house to be that color, you wanted it to be PINK and GREEN.

It doesn't matter if the unauthorized use of the AP photo increased its value. What matters is whether or not AP granted permission. Maybe, for example, they didn't WANT their photo associated with some dippy artist's neo-Stalinist political posters, and don't consider the extra cash they'll get from sales of the photo to be worth having that association forced on them. Maybe they just think the guy's a dick and don't want him using their photos at all.

The point is, it is their photo. They put the work into creating it. They get to say what is done with the end results of their work.

B. said...

"How else are you supposed to do an artwork about a famous person?"


Are you pretending to be dumb? He could have taken a photo himeself, hired a photographer to take one, or licensed the photo from AP. Warhol licensed the photos he used for his silkscreens.

It's transformative use, but he used the whole image (and shouldn't he have flopped it, so Obama was looking left?), and his poster significantly impacts the value of the existing photo. It's not such a clear cut Fair Use case as might appear.

But Fairey had tons of other options, so to think he had no choice but to appropriate the AP photo is ridiculous.

B. said...

"Basically, artists need to appropriate a lot, and the bottom line issue in copyright is the benefit to the public."

There's no "need" inherent for artists to appropriate, and no, the bottom line in copyright is not the benefit to the public, but rather to protect the rights of the copyright holder. Is this all supposed to be a joke?

Quoting an entire copyrighted piece on a blog or forum can get your terms of service cancelled, which is why Dog intvented links.
If I were to copy your posts, print them in a book in colored ink, do you think that use is protected?

blake said...

Hell, George Harrison lost the 'My Sweet Lord' lawsuit when the court found it too similar to a completely unsimilar 'He's So Fine' by the Chiffons. And this gets a pass?

Er, completely unsimilar? The two songs are chord-and-note identical, except for a four-bar bridge added by Harrison.

You can switch seamlessly between the two songs without missing a beat--or in fact changing anything except the words you're saying.

Even Harrison said something like, "Oh, sh!t! How did I not hear that?"

His frustration came from the fact that his attempts to resolve the issue--by giving up all rights to "My Sweet Lord", e.g.--were thwarted, ultimately by his own lawyer who bought the rights to "He's So Fine" and continued the suit against his former client. Good site detailing the case.

Revenant said...

Er, completely unsimilar? The two songs are chord-and-note identical, except for a four-bar bridge added by Harrison.

I'll take your word for it, but they don't sound anything alike to me.

blake said...

Well, it helps to compare apples to apples. The Spector wall-of-sound tends to bury everything.

Both songs follow a common format:

ABABCAB

The A-section is chord-and-note identical, allowing for some melisma (on George's part) and extra sylalbles (from the Chiffons). You can sing "My sweet Lord/etc" or "He's so fine/wish he was mine/etc." to either. You can even reverse the "doo-lang"s with the "hallelujah"s.

In fairness, the B-section is only chord identical, with the only the first line being note-identical. (MSL repeats that first line twice, then does a nice transition back to the A-section, where HSF uses a slightly different melody for the 2nd through 4th repetitions, with no lyrical transition back to the A-section.)

I always forget that, and that HSF has its own (rather boring, formulaic) bridge that MSL drops in favor of a short transition to a higher key.

HSF also doesn't have Harrison's (or is it Clapton's) great guitar intro, but that's part of the arrangement, not the song proper.

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аудиокниги скачать бесплатно