Obama Poster Copyright Infringement

[Jason Manley]

The AP will win this case. I have done quite a lot of copyright research and worked with lawyers on copyright related matters. Substantial similarity suits of this kind have been won many times by the party who the base image was taken from. A couple are documented here www.conceptart.org/copyright

If the AP registered that image they could get all funds and damages. Odds are it is not registered or was not at the time and so they will just get the money. If they don't it will come down to Shepard Fairey having an absolutely ace lawyer. Seems he got a good one... Had he not been using it to get rich and famous they probably would have let it slide if it was only to be a free promo poster (as it became for a time). That image is now part of American History and the AP deserves credit if you ask me.

http://www.foxnews.com/politics/first100days/2009/02/04/ap-sues-copyright-infringement-obama-hope-posters/

[DeadlyFreeze]

fox.....hsssssssssssssss

I think he has some grounds by the fact that Obama is a public official and anyone has the right to use his likeness, even though that likeness may be from photograph it was edited enough to fall under 'fair use'. It is anyone's guess what will happen.

Fairey really has nothing to lose, only 3rd parties have been profiting from it. AP might have the 'rights' to it but it will always be his work.

[kab]

Not a new issue with his work, as he very rarely credits photographers, but almost all his work is referenced/traced.

I'm guessing he might pay a fraction of what he's made from that image and end up with even more exposure, the guy is turning into a household name. Not bad IMO for a guy that spent the last 15-20 years doing "André The Giant has a possé!" stickers...

[tensai]

This thread copies this (http://www.conceptart.org/forums/showthread.php?t=149468) thread (but no copyrights were violated).

[kev ferrara]

The point of having a staff of lawyers at a big company is to intimidate smaller market participants on a full time basis in order to clear away market competition. Nobody would have cared about the picture without Fairey. Which means Fairey added the value that gave it value. He deserves all the money he can make from his work. My guess is AP wants to own that poster so they can sell it and market it, put it on dishes and t-shirts. Maybe he should just call the piece a satire of weak generic AP photography and steal away on first amendment grounds.

kev

[squidmonk3j]

i'm know very little about us law, but wouldn't this qualify as "fair use"?

from wiki:
"The first factor is about whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative."

[Jason Snair]

If anyone's in the Boston area, the ICA is having an exhibit on Shepard. I think the poster in question (or a large scale print) will be there.

It looks like a really great show.
http://www.icaboston.org/exhibitions/exhibit/fairey/in-news/

[Jason Manley]

AP might have the 'rights' to it but it will always be his work.

That makes no sense.


Simple fact is, it is still substantially similar and for that reason alone, the AP will win barring some miracle lawyering on his part.

I cant believe any of you guys think that doing that is acceptable. You do know if it happened to you that you would be flipping out right now....and if it was someone vocal enough, this forum would be full of pitchforks and torches.

[J Wilson]

I think it was lazy on the artist's behalf to use the photo more or less as is. It wouldn't have taken much at all to reference several images of Obama and just draw a new likeness and give it the same treatment.

I agree with Kev that the artist added the value that the photo now has, but that certainly doesn't excuse the artist or make it ok.

I'm all for artists getting what they deserve for creating an image that captures the public like his has, but he needs to just admit wrong doing and pay up. He'll still have made his reputation, and has plenty of opportunity to make more money. The AP can't take the image either, so I'm guessing it will be everyone's best interest to just settle a deal and give the photographer (or more likely the AP as I'm sure they have full rights) a cut.

[spaztastic]

I concur with Jason, Fairey did not make it different enough from the original to constitute fair use. now had he completely rendered it in say a painterly style vs doing vector/Paint over that might be a different story but he didn't so he got himself into trouble, He also forgot to give the photographer due credit.
Using a pic as reference for say likeness is one thing, but to basically paint over the exact image with out putting a distinguishable amount of creative change into the piece is common theft.

I am sorry that he is now feeling this lawsuit so far after the election, after the profits have been made, and after Obama got in, which in part is due to the snazzy artwork that Fairey created. Hopefully we can learn from this... I.E stay out of politics cause they use and then abuse.

[guggemmaneuver]

Grrrrr forum caching problems...


This is indeed a fascinating case. I heard an interview with Fairey on the NPR program Fresh Air (http://www.npr.org/templates/story/story.php?storyId=99466584) where i was taken aback by the fact that he openly stated "No, i don't know who the photographer was who took the original picture." It raises the stakes somewhat that the portrait now hangs in the presidential portrait gallery. As far as damages are concerned however, it sounds like (again, referencing the above-linked interview) any money turned from this trick was donated to the election campaign.

I think it's good on Fairey and helpful in the case of the larger campaign that his work kind of spread the way that it did ... but yes there are serious legal issues and implications when you directly copy another creator's work.

[spaztastic]

J Wilson, you beat me to it. My page didn't refresh until after I posted so, ditto what J said.

[wassermelone]

Its likely fair use.

When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[2] But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.[3]

However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval.[4] More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch,[5] regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.

However, I do think Fairey should probably be more careful now that hes left the graffiti/viral wall poster world all in one fell swoop.

*edit
Also there are some accounts that the image AP is using is a largely cropped version of the one Fairey used as reference.

[Blahm]

the soviet union should sue him for stealing their style as well.

But yea cant be hanving famous intellectual property in the hands of and individual. That would be like freedom or something.

[Arshes Nei]

I agree with Manley, I'm not a Photographer but they seem to get the short end of the stick when people go "well I drew it! It's original now!" what's the point of capturing the image in the first place if just because you draw you feel it trumps the right of a photographer?

People need to respect photographers a bit more...they're not "stealing nature" and I'm tired of that excuse. If that was the case, you wouldn't have needed the "reference" in the first place.

[r.mccabe]

So it does seem a violation of copyright to me. The expression, pose, and lighting make the picture which is what was copied. Could he have bought the rights to the photo? It doesn't seem like an easy task to grab a photo like the one he used without being a member of the press core. Then again the photo is impressive on its own, and the style of the painting is nothing new.

[evildisco]

Fairey had it coming, he appropriated a lot of images.

[kab]

I'd say he changed it enough that most people wouldn't recognise the original photo. A few weeks ago, when someone first tracked the photo down, apparently the photographer hadn't recognised it either. This could be due to the fact that the photographer probably takes ALOT of photos, or that most people think it is an unreferenced illustration and don't think to check.

I don't think Fairey really cares about the legal side himself, after all the guy has been putting his work up on walls illegally for decades. The guy has always used photoref without credits and never started when he took his posters off city streets and put them in galleries instead. Perhaps he thinks this will silence the guys who says he sold out and went commercial though:)

[el coro]

after he made the hope poster and put it on his site, he was contacted by obamas people and asked to make other posters using images the obama camp had rights to, which he did; the hope one is just the one that stuck. i'm personally sad to see this happen. the nature of how fairey makes is work is tied directly to the statement of his work. he's a street artist who's made a name for himself doing this exact same thing for years. and i at least thought it was cool to see someone like fairey's slant be so widely embraced by the public like it was. it was a message within the message, that it was us making this shit happen somehow. what a bummer to see how now motherfuckers get all greedy...i mean its not even the guy who took the picture complaining about it, its his old employer, trying to pimp the legal system and bully the small guy to get free money.

im well aware that my background is where alot of my sentiment comes from. but i think he should get a pass because of the subject matter, impact that it made and the usage it got. i see it as a special case. if it was fergie or jacko for a commercial campaign id say burn him. but this was contributed for a government campaign, and caught on. the fact that hes being sued for it is just the sad satire of the american legal system. i say let him make some money real quick off it.

c36

[kev ferrara]

I wonder if Marylin Monroe's estate sued Warhol?

Its Obama's face. He should sue AP!

If AP is smart they'd take a picture of every landscape worth painting in America. That way every realist painter would get sued if they tried to appropriate the AP's imagery. Journalistic photography, which is what most photography is, should fall into public domain much quicker than it does. It should have some kind of "news" rights. The day its published, the rights are over. The world isn't owned by the media.

Journalistic Photography is not the same as art. Artists knew that 100 years ago, but commerce in the guise of democracy has complete eroded rational thinking on this point.

That sounded sorta ranty, didn't it. Pardon.

kev

[richarddoble]

why do haters got to hate?

[Jason Manley]

your rant is naive of copyright law. if the person did not use the image directly they cannot be sued. the thing that loses copyright cases is when the user is found to have had access to the image being copied. Your comment that journalistic photography is not the same as art...hmmm...seems plenty of photojournalism had exactly the same power as any painted art.

I agree that his work here is now iconic with the american people and history. Is also nice to see an artist reach the main stream with people who only normally know who britney spears or tom cruise is.

It is a copyright violation though...clearly substantially similar. The cases on www.conceptart.org/copyright show how that works.

If he does get a pass, the work will probably be credited like original photograph by Associated Press.


Jason



I wonder if Marylin Monroe's estate sued Warhol?

Its Obama's face. He should sue AP!

If AP is smart they'd take a picture of every landscape worth painting in America. That way every realist painter would get sued if they tried to appropriate the AP's imagery. Journalistic photography, which is what most photography is, should fall into public domain much quicker than it does. It should have some kind of "news" rights. The day its published, the rights are over. The world isn't owned by the media.

Journalistic Photography is not the same as art. Artists knew that 100 years ago, but commerce in the guise of democracy has complete eroded rational thinking on this point.

That sounded sorta ranty, didn't it. Pardon.

kev

[kev ferrara]

How can anyone not have access to AP photography? This is a universalist defense... AP is stomping into the market as owners of the way reality looks, using the law ... which I am aware of by the way. The law is just the law. Things are outlawed not because they fall outside the law first. They are outlawed first because they don't work for the society. There are many laws that are not litigated for the simple reason that they don't work as laws and everybody is breaking them.

Obviously this will all be contested under fair use, but I am rooting hard against the AP. For those in the expression business, they are to be feared.

[Stoat]

Eh. I worked for a big corporation for years. I nicked photos for reference all the time, but -- because I knew my employer had deep pockets and therefore much vulnerability -- I was extraordinarily careful how I used them. If you could put my illustration and the reference side by side and see what I stole, I changed something. From the beginning, I assumed there would come a day when huge databases of images met really good image recognition software.

It's a standard of professional paranoia I have been happy to maintain ever since. It just feels right.

Years ago, I saw a picture book on weasel where every single image in it was a bad paintover of a photo in the first five pages of a Google images search of the word "weasel." I do regular image searches of "weasel" and I recognized every last one of them. It was a masterpiece of lame ripoffery. I wish I'd bought it.

[Peter Coene]

I cant believe any of you guys think that doing that is acceptable. You do know if it happened to you that you would be flipping out right now....and if it was someone vocal enough, this forum would be full of pitchforks and torches.

Sweet, I always wanted to be part of a CA lynch mob! Lets get those copyright violating scoundrels!

[Arshes Nei]

I wonder if people would say the same thing if they found their illustration, changed with Woodcut/Stamp + Airbrush ok.

That being said I actually like some street artists and portrait artists....but...it's a stencil?

[el coro]

[QUOTE=Arshes Nei;2117421]I wonder if people would say the same thing if they found their illustration, changed with Woodcut/Stamp + Airbrush ok.
QUOTE]


key phrase being "illustration" this was a photo taken for press use. its a different case entirely as far as im concerned. apples and oranges.

c36

[Arshes Nei]

I wonder if people would say the same thing if they found their illustration, changed with Woodcut/Stamp + Airbrush ok.



key phrase being "illustration" this was a photo taken for press use. its a different case entirely as far as im concerned. apples and oranges.

c36

However, photographers do have the same rights as illustrators. He wouldn't have been able to have a nice stencil to reference from if not for a damn nice photo. AP also sells their images and stories. http://www.associatedpress.com/pages/about/pressreleases/pr_020409a.html

http://www.associatedpress.com/pages/product/photoservices.html

I mean look at this, Elwell paid a photographer to create a piece. http://www.conceptart.org/forums/showthread.php?t=125083 What a fool right? Should have just used google images.

[Jasonwclark]

Sweet, I always wanted to be part of a CA lynch mob! Lets get those copyright violating scoundrels!

I don't know about the Shepard Fairey situation, but you'd probably get shot in DC for hanging up a poster like that.

http://www.conceptart.org/forums/attachment.php?attachmentid=584734&stc=1&d=1233869906

[madster]

Although Fairey should not have taken the image without permission, or proper source citing, he WILL get a pass, because this DOES fall quite squarely on the "Fair Use" side.

Fairey made no money from the image. If the AP wants to chase everyone who DID make money, it does not affect Fairey.

Also, Fairey was NOT the one who made the statement that the Obama poster image will "always be his." Fairey has never "claimed" the image. That is why he has never charged for its use by anyone else.

And, the two major factors that will get this case dismissed are
1. Fairey did not make the image for commercial use, nor has he charged anyone for it, it was made to express a political statement ~ No laws against that,
and MORE importantly
2. The issue of DAMAGES... The photographer cannot prove that he was in any way deprived of any past or future income from THAT photograph. As was quite well pointed out, the photograph is FAR more valuable NOW, than it was originally...

Nope...Sorry Jason, you're off the mark on this one, big time.
Check with your legal eagles again. I once worked for a lawyer who specialized in Copyright. This one will make a BIG noise, because it's the AP, but in the end, Fairey and artists will win.

One last thing, for those members not smart enough to realize that this does not give them permission to merrily snag images...

The KEYWORDS in this situation are:
1. INTENT ~ This image was used in a TOTALLY non-commercial way. It was not used to promote an event, a product, or a business.
2. PROFIT and DAMAGES ~ The artist DID NOT MAKE ANY MONEY from sales of this image. The ORIGINAL ARTIST (the AP Photographer) WAS NOT DAMAGED by this derivative image. If anything, his reputation was increased...

While the courts may judge that Fairey must credit the photographer in the future, and may judge that the photographer is entitled to some (a SMALL token) renumeration for the unauthorized used of his photo, that will be about the extent of any legal judgements. The AP will not be able to get a portion of any profits made by others out of Fairey. They will FIRST have to get a judgement against Fairey, and then they will have to individually chase down and sue everyone they THINK might have made money.

In these times, the AP doesn't have the time or money to throw down a rabbit hole. This is one specialized situation, where copyright law will be superceded by "Fair Use."

~M

[Peter Coene]

I don't know about the Shepard Fairey situation, but you'd probably get shot in DC for hanging up a poster like that.

http://www.conceptart.org/forums/attachment.php?attachmentid=584734&stc=1&d=1233869906

Oh snap! And now they could even own the gun legally!

[James Kei]

The U.S. Supreme Court on Campbell v. Acuff-Rose: "...the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

[el coro]

Although Fairey should not have taken the image without permission, or proper source citing, he WILL get a pass, because this DOES fall quite squarely on the "Fair Use" side.

Fairey made no money from the image. If the AP wants to chase everyone who DID make money, it does not affect Fairey.

Also, Fairey was NOT the one who made the statement that the Obama poster image will "always be his." Fairey has never "claimed" the image. That is why he has never charged for its use by anyone else.

And, the two major factors that will get this case dismissed are
1. Fairey did not make the image for commercial use, nor has he charged anyone for it, it was made to express a political statement ~ No laws against that,
and MORE importantly
2. The issue of DAMAGES... The photographer cannot prove that he was in any way deprived of any past or future income from THAT photograph. As was quite well pointed out, the photograph is FAR more valuable NOW, than it was originally...

Nope...Sorry Jason, you're off the mark on this one, big time.
Check with your legal eagles again. I once worked for a lawyer who specialized in Copyright. This one will make a BIG noise, because it's the AP, but in the end, Fairey and artists will win.

One last thing, for those members not smart enough to realize that this does not give them permission to merrily snag images...

The KEYWORDS in this situation are:
1. INTENT ~ This image was used in a TOTALLY non-commercial way. It was not used to promote an event, a product, or a business.
2. PROFIT and DAMAGES ~ The artist DID NOT MAKE ANY MONEY from sales of this image. The ORIGINAL ARTIST (the AP Photographer) WAS NOT DAMAGED by this derivative image. If anything, his reputation was increased...

While the courts may judge that Fairey must credit the photographer in the future, and may judge that the photographer is entitled to some (a SMALL token) renumeration for the unauthorized used of his photo, that will be about the extent of any legal judgements. The AP will not be able to get a portion of any profits made by others out of Fairey. They will FIRST have to get a judgement against Fairey, and then they will have to individually chase down and sue everyone they THINK might have made money.

In these times, the AP doesn't have the time or money to throw down a rabbit hole. This is one specialized situation, where copyright law will be superceded by "Fair Use."

~M

the thing that i think might be overlooked here is that he is making money off of this image, through selling it through the galery circuits. my understanding is that he's made a pretty decent amount of money off it too. but i agree that for the reasons that he created this for a non commercial purpose, didnt charge a fee to create it, he should be able to sell prints of it as fine art, same way he always has with his other "lifted" and altered images. i hope he wins. i want him to make money off of this. i honestly cant understand any artists siding with large business in this matter...


and the "how would you like it if somebody did that to one of your images" argument holds absolutely no water with me.

if someone used a photo i took, hell, even an illustration i made, in a national government campaign, elevating it to becoming an iconic image recognized by all, id be stoked as fuck. maybe thats just me though, since i dont live in perpetual fear of people stealing images i made, and i can appreciate free promotion, credited or not. ;)

c36

[ShroudStar]

Peter, there's better ways to get across your discontent without being so blatantly rash. Not only will that poster get you in hot water, but you're talking about President Obama now. If the FBI got wind of that linked to Obama's name, they might come knocking at your door.

Seriously...can't you do better than a noose? That's not just inane - that's moronic. (You're also a creative, so you can do better than resorting to a symbol of a very ugly hate crime).

[DeadlyFreeze]

That makes no sense.


Really that doesn't make sense? So when/if AP gets unquestionable legal rights to it we will simply forget Fairey was the one who created it?

It's always going to be his baby, no matter what the legal system says. He won't own it but its his.

[Equality72521]

id be stoked as fuck.


That makes no sense.



indeed.

indeed it does, jason.


;)

[Jason Manley]

It has nothing to do with taking sides. It has to do with the fact that artists cannot legally profit from images which are lifted from copyrighted materials. Every contract mb signs has agreements saying that that will not happen. Such is the nature of intellectual property law.

It is my understanding he has made a grip of dough on it too. Dont get me wrong. It is an iconic and important image...but since biz is involved, those who own the copyright get a cut of the proceeds from it if not all plus damages. Everyone doing art professionally knows or should know that they cant use reference that closely. the fact that we are arguing about it is exactly the kind of reason things go to litigation...to let the courts decide.

It is not about big biz taking the little guy...it is about all our copyrights being maintained and whole. if it were the other way around and the AP lifting the artists stuff it would be no different. it does simply about an image which is owned by another being used for monetary gains. The owner will see their due is my guess.

[Peter Coene]

Peter, there's better ways to get across your discontent without being so blatantly rash. Not only will that poster get you in hot water, but you're talking about President Obama now. If the FBI got wind of that linked to Obama's name, they might come knocking at your door.

Seriously...can't you do better than a noose? That's not just inane - that's moronic. (You're also a creative, so you can do better than resorting to a symbol of a very ugly hate crime).

Whoa, that poster was NOT directed towards Obama. Please look at it in context, it was entirely a reference to Manley's comment that we'd go after anyone who illegally used our work. It simply seemed witty as it incorporated the poster that the thread was about and was able to be a play on words with "hope." While I can now see how things could be taken the wrong way please rest assured that that was not what I meant in the least.

Once again; not directed at Obama. I may not agree with him but he is the president of my country and if anyone did try to cause him harm I'd be quite willing to use the rope on them.

[Samuel Gray]

So basically take your own photographs and be there yourself in the moment, because if you are not you can't make the money you want in the long run. Whether it be $1 or much more. Even if you produced it for learning purposes. I recently was rejected into the BFA program at my University not because I made good art and gave a feeling the photo did not have in the first place, but because it was not mine to begin with. Unless you have full rights to that photo, it is not yours. I have been back and forth on what is plagiarism or not but I think everyone can conclude that no matter what your intent is in your work you have to give credit where it is due. That is just how things work and will work for as long as you and I are alive. Ya it was for a good purpose, the campaign and all but that doesn't matter. Politics can suck my saggy left one btw.

[kingshaj]

sometimes one just has to take a step back
and take the time to think about the spirit of the work.

EDIT:
it makes me sad that the side effect of the orphan works project is to change and mute our own aesthetics

in that it has made us look at art purely in terms of cash/rights, rather than intrinsic value.
and our opinions about legal precidant are immutable and systematic, and as childishly one dimensional as those that we seek to protect ourselves from.

effectively doing away with entire movements , like "guerilla art", 60's pop art, Hip Hop, Jazz, etc.
invalidating any movement that necessarily utilizes appropriation of iconic images or sounds,
in order to protect our own rights, we will be left with nothing worth protecting.

corporate art will always be safe. and our portfolios will serve their purpose.
but expression will be homogenous

[ShroudStar]

Whoa, that poster was NOT directed towards Obama. Please look at it in context, it was entirely a reference to Manley's comment that we'd go after anyone who illegally used our work. It simply seemed witty as it incorporated the poster that the thread was about and was able to be a play on words with "hope." While I can now see how things could be taken the wrong way please rest assured that that was not what I meant in the least.

Once again; not directed at Obama. I may not agree with him but he is the president of my country and if anyone did try to cause him harm I'd be quite willing to use the rope on them.

My bad. I really misinterpreted that one. However, you did get me laughing on your ending remark, because I think many people would agree with you.

[tatiana]

Just an FYI regards Fairey -- he's been arrested.

Police in Boston say the artist famous for his "Hope" posters of President Obama has been arrested on outstanding warrants.

Shepard Fairey was in Boston on Friday for his new exhibit at the Institute of Contemporary Art.

Police Officer James Kenneally says the department had Jan. 24 warrants alleging the Los Angeles artist tagged property with graffiti.

Fairey's Obama image has been sold on thousands of stickers and posters. It is the subject of a copyright dispute with The Associated Press. Fairey argues that his use of the AP photo is protected by "fair use," which allows exceptions to copyright laws.

A California lawyer who has represented Fairey in the copyright case didn't immediately respond to an e-mail seeking comment on the arrest.

http://www.wfaa.com/sharedcontent/dws/wfaa/latestnews/stories/wfaa090207_lj_poster.2a7a1a58.html

As I stated in the other thread...well, definitely more publicity for the artist.

t

[Arshes Nei]

it makes me sad that the side effect of the orphan works project is to change and mute our own aesthetics



Not sure how this is the fault of the Orphan Works bill? In fact, if one of the versions of the Orphan Works bill had passed Fairey would have had a better defense.

After all, he did originally find the work through Google Images. It could have been so diluted at that point it would have been hard to find the original owner and claimed it was Orphan and instead of getting hit with damages, he'd only have to pay reasonable compensation for the use.

He may have been in less of a pickle with an Orphan Works defense than a Fair Use defense.

Then again, seems the AP photo wasn't so hard to find the original owner too, since AP has its own database of photos in place since they sell the photos to other agencies regardless of the bill.

I don't think Orphan Works should be the new scapegoat for copyright issues. He would have been in the same boat if the Orphan Works proposals never existed.

[aesir]

I hope this jolts fairey out of his mindset, even if I don't hope he get's much punishment.

Plenty of artists have been complaining for years about how fairey ripped people off...

[Seer]

Right or wrong, it's a silly mistake that could have been avoided easily. Why jeopardize commercial work like this by working from copyrighted ref? I guess this is a good example of how careful you need to be about your reference and the rights for it.

[Peter Coene]

My bad. I really misinterpreted that one. However, you did get me laughing on your ending remark, because I think many people would agree with you.
Well, I'm not a member of the Church of Latter-day Obamists, but as I did with Bush I respect the office he holds.

Now though that I can see the way the image could be interpreted I'm a bit weirded out. I have a foreboding feeling that now that its been posted on the interbutts someone is going to take it and start using it as an anti-Obama poster for some hate site.

Then again, if I copyright it then posting it is perfect lawsuit bait for some racist hate-group, just wait for them to steal it then sue their pants off... But there would be no way to copyright it without taking it out of context... But then again, I'm copying the style, color theme, font, etc of the Obama posters, its parody, so its fair use, right?... dang weird moral dillemas.

Screw it. We know why I made it. If someone steals this one to put to nefarious use I hope they DON'T put my name on it.

[Sundance]

Since folks don't seem to get it... why don't we bring in Arttorney a member here who is an actual copywrite attorney.

Seriously, this is a legal issue...it may suck as an artist not to be able to raid the internet via random image searches for direct reference, but isn't this why we were against the Orphan Works Act? So that people don't use our work for their own benifit with out any compensaition to us for making the work in the first place?

[Gilead]

So...
A burglar breaks into your house and steals your computer, then donates it to Goodwill who sells it to raise money to help the homeless.
You would conclude that:
1. No crime was committed because the burglar did not profit directly?
2. It's not a crime as long as it's for a worthy cause?
3. No harm was done to you because you have plenty of money?
4. The burglar should get a special dispensation because he's so dang cool?
5. It's not a crime in this instance because you also support Goodwill?
6. You dont have the right to go around mandating how society uses or distributes your property?

[DeadlyFreeze]

fixed

So...
A burglar looks through your window at your computer, builds a similar but completely different computer then donates it to Goodwill who sells it to raise money to help the homeless.

[Jasonwclark]

Here's an interview of the Photographer at Photobusinessforum
http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html


1) Is the now famous photograph used as the basis for the Shepard Fairey artwork, in fact, taken by you?
Yes. it is. I was informed by James Danziger who represents the art gallery that represents James Fairey on January 21, 2009, while I was on White House Duty, that the photograph used by Mr. Fairey was in fact, based upon a photograph I made in April of 2006.

2) Where you either an employee, or a freelance photographer, as defined by their contract, for the AP when you took this image?
I was a temporary hire, filling in for a staffer at the AP. It is my understanding that I was neither a freelancer nor a staffer, but rather a temporary hire. I have never been an AP staff employee, and no, I have never signed an AP contract.

3) So, you own the copyright to the image?
The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.

4) Are you interested in precluding further use of your photograph in this manner?
That's a hard one. I'm concerned about the usage of the photograph in a number of commercial ways that I've seen it on the street here in Washington DC. I don't know how it's being used in other parts of the country, or the world. I'd like to talk to the people responsible for putting it out.

5) In the future, artwork carrying your signature along with that of Fairey could be very valuable. What are your thoughts on this? Any plans?
I realize, based upon conversations I've had with people at the AP and Danziger studio, that the photograph that I made of then Junior Senator from Illinois Barack Obama, that it has significant value with my signature. Now, monies - monies that might be made by me signing my photograph. I am concerned, that the image out there - I would like very much to figure out a way that my signature on a photograph that I made of then Senator now President Obama, that maybe the monies = most of it - could be donated to the American Red Cross, children's cancer research, and women's breast cancer research. This is not about me making money off this, it's about recognition. I made the most iconic image of our time, and I'd like it to make a difference, not make me money. I'm a blue collar photographer - I am out there on the grind every day. I spend more energy looking for work than doing work. I just want Shepard Fairey to say "alright, you're the guy. Thank you."

6) I've known you for many years, and this is consistent with who I know you to be, karmically speaking. Talk a bit more about your efforts to make a difference through your photography?
I'm a buddhist, and I believe in compassion, and the suffering of sentient beings, my teacher Holiness Penor Rinpoche. I asked him once when I was in India talking to him - "I make some pretty ugly pictures - they're brutal, they're ugly. People suffering. I don't want to make these images anymore." he said "you need to make these images. You need to make people in the world see this, so they will help in some way. I want you to continue doing what you're doing. Recording the suffering, the misery - we, in the world, will all benefit, hopefully in a positive way." That way - I don't want this to sound totally weird, but, basically, my teacher has said "keep doing what you're doing." People are reacting based upon those images. It's a strange dichotomy there.

7) It sounds like the AP has been receptive to you and this issue.
The AP has been receptive to me and this issue. I've received assurances from two people at AP higher up, that said they would "take care of me", and I have no reason to doubt them. I've had conversations with both of these individuals and I have no reason to doubt that this is accurate and true.

8 ) This seems like it is a pleasant situation, where the AP has previously come across as hard-nosed. Is this the newer more friendly AP?
I don't know if this is the newer and friendlier AP. I believe this is a unique situation. It's a one-fer. It's not a two-fer. It's a unique situation, and it calls for some very unique solutions to the problem that we're facing. Certainly it's going to raise some eyebrows here and there. This is unique. This is not typical. This is different, and it has to be treated in a unique way. You can't treat this generically, maybe as the AP has treated things in the past. This is very unique.

9) So you are pleased with how things are going?
Honestly, no I am not pleased with how things are going. I think things could be going in a more positive way. Meaning, I want to be kept more in the loop with things. I know AP management is keeping me in the loop, so sometimes I have to ask questions more than once to get an answer. I honestly believe that AP is doing it's best to resolve this situation in a fair way. I mean fair with Mannie Garcia, fair with Shepard Fairey, and all of that. Basically, I hope that all turns out well with all parties concerned.

10) So are you interested in being a part of the historic team documenting the President or Vice President in this new administration?
Yes, I am. And yes, I applied. I applied well before I knew about any of this - the revelations about the Fairey poster. I would be honored to be a part of the White House photographic team. Especially if I were a part of the team documenting Vice President Joe Biden. He is going to be so cool to cover. I think this administration is going to do so much, so yes, I would be honored if that happened.


Here's what the other guy had to say on Colbert a few months back.

Fairey on Colbert
http://www.colbertnation.com/the-colbert-report-videos/215976/january-15-2009/shepard-fairey

Probably the respectable thing to do would have been to mention Garcia in that interview, since he had a national stage. He could have come clean right then with a name drop and everyone would have let it slide. Too bad for him I guess. I don't know much about Fairey's background beyond what's floating around on the internet, but he's claiming Rodchenko (http://en.wikipedia.org/wiki/Alexander_Rodchenko) and Rauschenberg (http://en.wikipedia.org/wiki/Robert_Rauschenberg) as his masters. Might still be an interesting case, if only to figure out where the pendulum is at in 2010.

Question: What if Obama said he thought it was a legitimate fair use of his likeness, would that have any baring on the situation? If this was a figure drawing/shooting analogy, wouldn't Obama be like the model in this case? Also, for those who think that Fairey is totally in the wrong to use Mannie Garcia's photo, not just legally but morally, do you also think then that Fairey's image should never have been created in the first place? And then what if McCain had won the election, on account of no HOPE posters? Yikes.

What would be cool is if you could get that poster signed by both Fairey and Garcia, with Obama in the middle. That thing would be worth the big time cheddar like 10 or 15 years from now.

:)

[Stoat]

Jesus. You think dude won because he had a cool poster, and the scary thing is that he might have lost without it?

Democracy sucks.

[Jason Manley]

well honestly this is the best thing for both of them...national stage now...no such thing is bad press so they both win in this case.

making noise right now on fairey's part was entirely appropriate and wise..regardless of the rest. more exposure...they both will now have opportunity from this.

[kingshaj]

Not sure how this is the fault of the Orphan Works bill? In fact, if one of the versions of the Orphan Works bill had passed Fairey would have had a better defense.



you are being to literal
i clearly meant that, our feelings about copyright have become one dimensional because of recent events. (like the bill.)

this thread reminds me of how insular and myopic we commercial artists can be
we're businessmen and apparently little else. back to the tutorials

[Arshes Nei]

you are being to literal
i clearly meant that, our feelings about copyright have become one dimensional because of recent events. (like the bill.)

this thread reminds me of how insular and myopic we commercial artists can be
we're businessmen and apparently little else. back to the tutorials

I'm sorry, but even I disagree with that. The problem is more of the internet and ability to spread art with more rapidness than before. That's really the reason for the problem.

Orphan Works has more to do with technology changing and old preservation methods not as good as before and inability to contact original copyright owners because of that task. However, it has legitimate concerns for unattended side effects which I understand the opposition to the bill.

As stated before Fairey could have found the copyright holder and asked. He didn't, therefore destroying destroying the spirit of mutual respect. Once that was overlooked, "the spirit" of the work as you said, kinda deteriorates. If he could get away with not giving credit for his source, I honestly think he would have.

The problem is the "as long as it's not in my backyard" attitude I'm seeing from artists in this argument. I really doubt again if it was their intellectual property being used as a basis without permission or notice we'd be ignoring their plight. But, you know as long as it's not your work it's ok, right? Not in your backyard...

The spirit of understanding and respect among artists should be understood above all else. It has little to do with business, it seems that Obama poster turned itself into one....because it was done for gain. Like viral marketing.

[Meloncov]

Based on what I've heard at the handful of art and law lectures I've attended, their is no clear line as to what constitutes fair use, as different cases have left contradictory precedents. As such, it generally comes down to the temperament of the jury and quality of the lawyers.

[kab]

http://www.huffingtonpost.com/jonathan-melber/the-ap-hase-no-case-again_b_165068.html

It seems that Fairey has a strong case if this ends up in court.

Also, if it turns out Garcia owns the copyright to his image (seems reasonable to me if he never signed any contract or explicitly signed his rights away) he says he is not interested in suing. He has also sold signed copies of this photo for 1200$, doesn't seem like Fairey harmed the value of it IMO. :)

[madster]

http://www.breitbart.com/article.php?id=D9689O2G0&show_article=1
The lawsuit was brought on Fairey's behalf by the Stanford Law School's Fair Use Project and a San Francisco-based law firm.

"There should be no doubt about the legality of Fairey's work," said Anthony Falzone, executive director of the Fair Use Project. "He used the photograph for a purpose entirely different than the original, and transformed it dramatically."

Go Fairey!
~M

[James Kei]

Fairey fights back.

http://politicalticker.blogs.cnn.com/2009/02/10/obama-hope-artist-files-suit-against-ap/#more-39379

[onionface]

I think the Ap should take his vector copy of the photo, slightly change it and sell some stuff with the "new" image on, maybe change the hues in photoshop and vertical flip. they will make their money and prove their point.

Everyone seems to be forgetting about the photographer as weel, Ap want credit, the "artist" wants credit, niether care about Garcia? the photographer. Yeah he just took a photo, right place right time kinda stuff. But look at famous photos in history.

example - Alberto Korda's famous photograph of Che Guevara
which I believe he sold to the papers for ten bucks. it's now part of popular media. At least he got credit for it. As well it proves the power of being at the right place at the right time and having mind enough to capture it, and do a good job of it.

granted Guevara looks 10 times more focused then obama.

[kab]

Garcia has the credit for the original photo now, everyone even slightly interested in art, politics, photography etc. has seen this and read the articles surrounding the lawsuit.

He doesn't want money from Fairey, and thanks to Fairey he is now well known and selling his photgraphy for big money.

The credit for making this photo even remotely interesting goes to Fairey.

Garcia took the photo, he apparently owns the rights, Fairey used it to create an iconic image that has a different intent and purpose than the reference and is probably safely within fair use. It seems like AP slipped up big-time really, you would think they would atleast make sure they own the rights before they sue for copyright infringement. Now they are being sued themselves in what will most likely be a landmark fair-use case.

[CCorsair]

In my view Fairey blew it .. he was fairly unknown to the world at large but for those that know of him with his "Obey" stickers all over .. I seen his work pop up on a lot of place and there was avery good story about him pre-Obama on Current TV.
When i fist saw Fairey's Obama poster I hated it it did not give me hope it look like 1930's propaganda poster and still does to me know That Obama is some what socialistic in some of if not some of his ideas of how thing should be done but that is another debate .

Fairey blew it due to not using his own photo or not catting in the guy who took it. Now if he did try to find the guy that would be one thing but he didn't and AP has it their contracts that all photos sold to them by freelance photographers become their(IE if the guy was staff or freelance then AP owns it)

Fairey was paid by the Obama people saw the first poster and had him do more it is in a video on Current TV as well and Fairey said he was ask to make it and more like it .. he got paid so this was a street artist dream come true.

He also made posted or some made ton of posted sold for the swearing in and some pocketed that money there.

I was and i did screen art for many years i did a lot of work like his at one time and i didn't even thing about who owned what when taking picture and using it and i don't think Fairey did at all ..

I at one time before the internet was as big as it is now would down load picture to change to get random images from with out forethought of who owned what. but now i do not unless it public domain and I do contact the people and I do search for them very hard and if I can't find them I set aside fund to pay them when i do or keep track of what I made to pay those people later.(see some work here http://www.picturejungle.com/store/brandlist.asp?media=&ID=1511 )

I have images there I used and I needed to hunt down the person who took them .. some still don't like my work but like getting paid for me using them.
I think the guy who took the photo was paid by AP I think AP is just being over protective but does have the right to go after Fairey for not checking with them but the question of is this public domain as well falls into it too.

look at some of the memorabilia being generated with photos taken out of videos or from news paper and AP photos.. it like tons of people making buck off this election and AP is going after Fairey as he is the easiest to hit first.

His work made people think(as i said it made me think) some saw it as hope some saw it as something else but it was one of the best propaganda posted ever re-printed (any poster made to get some political idea across or to elect someone is a propaganda poster to me just google 1930's propaganda poster and see what comes up)

Obama gain tons from it and I feel it made many feel good and gave them hope and this alone cold get Him off the hook for not getting thew right to use the photo. I not sure how it will work out with with the courts but I feel Fairey will lose unless some one from Obama camp speaks up as it was Obama image and now that hold that top office you can't use him in anyway in any work that would be say endorsement or political with out written permission from him.

Fairey will get zapped by that which made him and he should ..he just went for the money and didn't seem to think of the long term effects.

This is going to a test as well those fighting the Orphan works Act as well
and this was not Fair Use as the photo was of a political candidate and the poster was part of the same political message Obama spoke of giving the people Hope and the posted gave the same message to many. If Fairey had put Hope? on the poster it would have had a different effect i think and would been more of a Fair Use of the photo.

This is going to challenge a lot of what we know as copy rights and how the law really see our right as artist I feel


CC

it was sad to see the 1930's propaganda poster style in this last election as we need real hope and not propaganda. many of my older friend in Germany hated the Hope posters and even told Obama in letter it was they sent wrong idea to the people there and they were answer with copies of the posters in the mail back...and a thank you form letter...sad

[kab]

If you read some of the articles posted here, I'd say it is pretty clear that Faireys work is transformative and therefore will be classified as fair use, the guy has legal council who work full time on fair use issues, including some of the people behind the Creative Commons project. Combined with the facts that the photographer never signed away his rights to the original photo, is not interested in suing Fairey and is already making alot of money from selling that photo (which doesn't really support the claim that Fairey has hurt it's value) I'd say he has more than a fair chance of walking away from this without paying a dime.

[RyerOrdStar]

If you read some of the articles posted here, I'd say it is pretty clear that Faireys work is transformative and therefore will be classified as fair use, the guy has legal council who work full time on fair use issues, including some of the people behind the Creative Commons project. Combined with the facts that the photographer never signed away his rights to the original photo, is not interested in suing Fairey and is already making alot of money from selling that photo (which doesn't really support the claim that Fairey has hurt it's value) I'd say he has more than a fair chance of walking away from this without paying a dime.

Yeah but I'm sure AP has their own army of lawyers who spend all their time prosecuting things like that.

[kab]

That is true, but I'm sure they are more used to suing people who have no means of defending themselves...

[madster]

To give the more lynch-minded some perspective from the artist... (http://www.huffingtonpost.com/shepard-fairey/the-ap-obama-referencing_b_179562.html)

Fairey will NOT "get a pass." He will simply and LEGALLY be found not guilty of Copyright Infringement due to the "Fair Use Clause." To "get a pass," somehow implies that Fairey is somehow "special." No, Fairey is nothing special. ANY of you could have created that poster, though not necessarily by those means. But in the end, you, too, would "get a pass" under "Fair Use."Lastly, I m very saddened to see many people try to demean my Obama poster as being "stolen" or that because I used a photo I "cheated". As far as the idea of the image being "stolen", I would love to have the clout to command portrait sittings from world leaders, but for me and most artists out there, that is not an option. For lots of artists, even licensing an image is out of the question financially. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning? Reference is critical to communication, and in my opinion, reference as a part of social commentary should not be stifled. (Emphasis mine)

~M

[madster]

Shepard Fairey's latest update (http://www.huffingtonpost.com/shepard-fairey/if-the-ap-has-the-right-t_b_188011.html).

Here's (http://cyberlaw.stanford.edu/system/files/Fairey%20Answer%20to%20AP%20Counterclaims.pdf) the .pdf of the Response to the Countersuit filed by the AP. A LOT of legalese, dry as mud, but scroll down to page 22, and start reading the examples presented of the AP essentially engaging in the same activity it is suing Fairey for...

Are there still many of you believing Fairey is in the wrong, here?
If so, what about the AP?

~M

[tatiana]

Just an FYI that the issue of copyrights versus "fair use" with Fairey's appropriation of an AP photo for his Obama art poster is back in the news. Basically: "Obama Poster Artist Admits He ‘Submitted False Images’ in Legal Case"

The WSJ article which links to the below statements is here:
http://blogs.wsj.com/speakeasy/2009/10/17/obama-poster-artist-admits-he-submitted-false-images-in-legal-case/

Fairey admits he sued AP under false pretenses

Striking at the heart of his fair use case against the AP, Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters. Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions.

In his February 9, 2009 Complaint for a declaratory judgment against The AP, Fairey falsely claimed to have used an AP photograph of George Clooney sitting next to then-Senator Barack Obama as the source of the Hope and Progress posters. However, as the AP correctly alleged in its March 11, 2009 response, Fairey had instead used a close-up photograph of then-Senator Obama from the same press event, which is an exact match for Fairey's posters. In its response, the AP also correctly surmised that Fairey had attempted to hide the true identity of the source photo in order to help his case by arguing that he had to make more changes to the source photo than he actually did, i.e., that he at least had to crop it.

Read the entire AP statement here:
http://www.ap.org/pages/about/pressreleases/pr_101609a.html

Shepard Fairey's Response:
In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in copyright laws, I wanted to notify you of a recent development in my case against The Associated Press (AP).

On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia, through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image. The AP claimed it was one photo, and I claimed it was another.

The new filings state for the record that the AP is correct about which photo I used as a reference and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong.

In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner.

Read Fairey's entire statement here:
http://obeygiant.com/headlines/associated-press-fair-use-case#more-8993

t

[velderia]

A bajillion photographers could've taken nearly the same angle. Obama is plastered all over the news.

This should fall under fair use, imo. It's the President of the United States for fuck's sake.

[Kamber Parrk]

Shepard Fairey has admitted to lying and destroying evidence.

His lawyers have bailed out on him.

My guess? Settlement with SF agreeing to pay AP an "undisclosed sum."

[ItsChoco]

A bajillion photographers could've taken nearly the same angle. Obama is plastered all over the news.
But they didn't.

That is kind of the point of the problem, it is clearly the AP photograph used, and that photograph is protected by copyright. The image created from that photograph has been used in a commercial fashion without permission.

One of the big factors in Fair Use policy is whether a work is transformative versus whether it is derivative, and it's arguable, at best, which this piece is. I like the piece, but I think Fairey's in a heap of trouble.

[Arshes Nei]

A bajillion photographers could've taken nearly the same angle. Obama is plastered all over the news.

This should fall under fair use, imo. It's the President of the United States for fuck's sake.

So he couldn't find out who took the photo/owned the copyright and quite simply... asked?

[nauvice]

Im siding with AP on this one... I think anyone who's against them are just so because they seem to be the Goliath of Fairy's David. not all big guys are evil bullies.

[Rist]

Ah, humm, yeah, thats good.

[Raoul Duke]

Sweet, I always wanted to be part of a CA lynch mob! Lets get those copyright violating scoundrels!
bad context dumb ass

Back to a relevant note. Fairy was using it as photo reference in my opinion. The photo was nothing special and fairy made it special. Tons of great art is due to random photo ref and I hope it doesn't become a legal worry for us artists.

Jason- I really appreciate what you are doing for the whole art community by fighting the orphan act, but I don't think taking photo ref too seriously applies.

If I were to do a portrait of somebody I would use reference too.

This subject frustrates me because I know there must be some hypocrites on this thread.

I will say these two images I created are mine and I don't owe anybody anything for it.

[tobbA]

Sounds like a bad thing that he lied.

Anyway I don't see how this wouldn't be fair use. Maybe not according to the law, but whoever owns the photo does not own Obamas face or the pose he's making. I wonder if the photo had been taken after the painting was made in stead of vice versa, would the photo be a copy right violation?

Because in that case I'm gonna sue everyone who's taken a photograph of the same things I have from the same angle...

[Arshes Nei]

He didn't just lie, he was suing.

[Raoul Duke]

Here (http://www.youtube.com/watch?v=P-56rcLxmk4&feature=player_embedded) is SF's argument

I think this concerns all artists, so please listen to what he has to say.

[nauvice]

I will say these two images I created are mine and I don't owe anybody anything for it.

here lies a difference. You took parts of what could have been any image to make a caricature. Fairey referenced 100% of the image and just warhol'd it

Here is SF's argument

I think this concerns all artists, so please listen to what he has to say.

I hate that.... he's siding himself with "every small artist" to get empathy from us and the general public. This isnt a battle against artists, this is a battle against the action he committed. The only part I feel sorry for him is that he's obviously just being made an example of because of his fame, had it not been famous, AP would probably not even care. That doesnt justify taking 100% reference of copywritten art...

[Raoul Duke]

here lies a difference. You took parts of what could have been any image to make a caricature. Fairey referenced 100% of the image and just warhol'd it

The thing is I think the SF poster is a caricature, even if he was tracing a photo with illustrator, he gave it a new meaning and I find the two images to be apples and oranges.

[nauvice]

The thing is I think the SF poster is a caricature, even if he was tracing a photo with illustrator, he gave it a new meaning and I find the two images to be apples and oranges.I think we had a perfect example with us all along haha, I just checked out Manley's copyright infringement link in the OP, and it explains the difference between the two perfectly. Yours is a derivative work, and his is clearly a substantial similarity.

[ItsChoco]

bad context dumb ass

Back to a relevant note. Fairy was using it as photo reference in my opinion. The photo was nothing special and fairy made it special. Tons of great art is due to random photo ref and I hope it doesn't become a legal worry for us artists.

Jason- I really appreciate what you are doing for the whole art community by fighting the orphan act, but I don't think taking photo ref too seriously applies.

If I were to do a portrait of somebody I would use reference too.

This subject frustrates me because I know there must be some hypocrites on this thread.

I will say these two images I created are mine and I don't owe anybody anything for it.

But, looking at these, they clearly aren't traced, and the other major issue: Did you make money off of these? Heck, by defintion, Fairey's isn't even a caricature, which is meant to exaggerate features. There's nothing exaggerated, it's the AP photo with some stylish vector shading. Photo reference is one thing, but it wasn't just referenced, GIS should bring you plenty of people that have done the overlays, but I'll save the trip and attach one. You wouldn't, and shouldn't, get away with ripping 3d.sk photos, tracing them, and selling them. They're protected by copyright and you need permission from 3d.sk to use them as the basis of a character, texture, etc. AP should not lose these protections because they are big, or because it's the President.

[nauvice]

is it worth noting that also the lighting source match up lol

[Wiggles]

Art theft at it's best.

I cannot sympathize with an artist that racks in the dough from another person's work. It's wrong, it's unjustified, it's immoral, it's pathetic. How else can it be said?

I will admit Fairey's work was original at best; yes, his originality comes from the color scheme of image to look American.
However Fairey was in the wrong; he purposely used artwork and left the photographer uncredited.

Whether or not he "meant" to credit the photographer eventually, he did not source his work. It does not matter if he intended on find the picture's owner he had yet to attempt to source anyone. In the eyes of the law he's a crook for copyright theft. Also, graffiti, when done on property you have no right to do it on, is a crime. This guy keeps making a fool of himself all around.

How could Fairey represent the artist community when he steals artwork and defaces property without just cause? Do we allow ourselves to be represented by this fool and the join the parade in his honor? Or do we look at him in the limelight, exposing him for his criminal activity?

To me he is nothing more than a criminal who claims he is an artist.

-Wiggs

[Harkins]

when you take a photograph of a building, do you credit the architect?

[ItsChoco]

when you take a photograph of a building, do you credit the architect?

No matter how much angry security guards yelling about 'terrist' (sic) may say otherwise, a building in public view does not share the same protections as a photograph. As I understand it from actual photographers, the design of the building is likely protected (IE you wouldn't likely get away with building a same structure), but you may take as many photos of it as you like, and each of those would be protected by your own copyright. I'm sure the architect would appreciate the nod, though. :)

[Harkins]

No matter how much angry security guards yelling about 'terrist' (sic) may say otherwise, a building in public view does not share the same protections as a photograph. As I understand it from actual photographers, the design of the building is likely protected (IE you wouldn't likely get away with building a same structure), but you may take as many photos of it as you like, and each of those would be protected by your own copyright. I'm sure the architect would appreciate the nod, though. :)

gotchya.

i never really liked how something as black and white (usually) as the law is applied to a big gray area we call art, it usually ends up whoever has the better lawyer or more money gets their way.

on the flip side, laws protect artists too.

i guess it works most of the time, and every so often we get a situation like this. i hope the artist wins because it sounds like he just did this for fun and it blew out of proportion and then AP's greediness is trying to make money off of it - what assholes.

[s.ketch]

http://i33.tinypic.com/302rl8x.jpg

I used the eyes as register marks.

[ItsChoco]

This is not aimed at anyone in particular, but I'm curious how people are arriving at their conclusions, since fair use is so ill-defined. When the attached image surfaced, was this forum not up in arms about art theft? The tree and dragon were lifted (and repainted), and the character completely changed, and we say this is enough to constitute infringement. Why, then, is Fairey's piece, which is in my opinion changed far less, fair use?

Because we want to side with the artist?
Because the AP is a big company?
What about the photographer, the professional photographer who took this photo? This is presumably his livelihood. Has he no rights because because press photography is not "art" and he is not "an artist"? If he didn't work for AP and were rather smaller and freelance, would you be mad then? Where's the line, exactly?

[s.ketch]

I think the image above wasn't about copyright but about ripping off another artist's ideas. It was a territorial dispute at first but it started to turn legal once the copyright holder was notified. I don't think there would have been much of a case for the original artist anyways since the copier changed so much but the basic composition and a couple of subjects. The legal stuff was more of a punch to make the copier back off.

Fairey changed everything but the subject. He abstracted a realistic photograph. He wasn't really in the photographer's territory or taking her idea.

[velderia]

This is not aimed at anyone in particular, but I'm curious how people are arriving at their conclusions, since fair use is so ill-defined. When the attached image surfaced, was this forum not up in arms about art theft? The tree and dragon were lifted (and repainted), and the character completely changed, and we say this is enough to constitute infringement. Why, then, is Fairey's piece, which is in my opinion changed far less, fair use?

Because we want to side with the artist?
Because the AP is a big company?
What about the photographer, the professional photographer who took this photo? This is presumably his livelihood. Has he no rights because because press photography is not "art" and he is not "an artist"? If he didn't work for AP and were rather smaller and freelance, would you be mad then? Where's the line, exactly?

Please don't compare this to that. I'm not siding with the artist because AP is a big company. I just don't see what the big deal is.

If the guy gets sued though, I'll just have to accept it.

[nauvice]

Please don't compare this to that. I'm not siding with the artist because AP is a big company. I just don't see what the big deal is.

If the guy gets sued though, I'll just have to accept it.
you dont see what the big deal is? okay, Im gonna go through your portfolio and just change the color settings on some of your artwork and release them for profit, hope you dont mind?

[ItsChoco]

Why not compare it? It's very nearly a same scenario of a copyrighted composition being painted over without permission. The big deal is that Fairey used a copyrighted image to create something used for profit with no permission to do so. Taken by itself, that's practically the definition of infringement.

"Idea" is a pretty abstract term, I'm sure we can find dozens or hundreds of images with a youngster sitting in a tree with a supernatural creature, which is pretty loose concept (Totoro, anyone?) Or tightening up the definition since that's clearly not close enough, how about the actual composition? It was the photographer's idea to take that particular photo, it's still his composition. In either case, the copy is a repainted version of the precise composition with some tweaks.

[Arshes Nei]

You know looking at the poor quality of the mugshot threads and photos in general, you'd think CA members would have an appreciation for how actual photography is a lot more difficult and wouldn't be so easy to dismiss it.

[Raoul Duke]

This is not aimed at anyone in particular, but I'm curious how people are arriving at their conclusions, since fair use is so ill-defined. When the attached image surfaced, was this forum not up in arms about art theft? The tree and dragon were lifted (and repainted), and the character completely changed, and we say this is enough to constitute infringement. Why, then, is Fairey's piece, which is in my opinion changed far less, fair use?

Because we want to side with the artist?
Because the AP is a big company?
What about the photographer, the professional photographer who took this photo? This is presumably his livelihood. Has he no rights because because press photography is not "art" and he is not "an artist"? If he didn't work for AP and were rather smaller and freelance, would you be mad then? Where's the line, exactly?

the AP photo was intended as journalism, the SF illustration was intended to be art. I think infringement is when somebody ganks anothers idea for the same purposes.

I'm not completely black and white on this topic, but the law is. I think if SF put more time into stylizing this image we wouldn't be having this discussion and Fairey would be in the clear. I still see this as opportunism on the APs behalf.

Seeing as how Fairey has been so generous with the use of his image maybe he deserves a little slack.

[Peter Coene]

So, not only is he a thief and a vandal, but he's also a liar who gives false testimony under oath. I'm loving him more and more.

the AP photo was intended as journalism, the SF illustration was intended to be art.
Journalistic art is still art. We wouldn't be okay with it if someone said "The original piece was meant to be a concept and the illustration was meant to be art." Heck, we'd be even more pissed off because it somehow implies that what we do doesn't deserve to be called art. If we are going to think that way about our own IP then we should do the same for photography.

[velderia]

you dont see what the big deal is? okay, Im gonna go through your portfolio and just change the color settings on some of your artwork and release them for profit, hope you dont mind?

Fairey didn't just change the color settings of the photo... He eliminated the background, did some nice detailed vector that's isn't perfectly matched well with the original photo and came up with his own colors. His focus was a portrayal of Obama, not the photographer's shot.

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


And it's not the first time something like this has happened.
http://en.wikipedia.org/wiki/Andy_warhol#1960s
http://en.wikipedia.org/wiki/File:Warhol-Campbell_Soup-1-screenprint-1968.jpg

Again, if Fairey gets sued, oh well. This is really up to the court. Not much bitchin' on CA can do much.

Oh, by the way, even if you wanted to take my drawings and change the color settings - THEN sell them as prints... Just keep in mind you won't make money. At least not much.

[Anid Maro]

I'm not completely black and white on this topic, but the law is. I think if SF put more time into stylizing this image we wouldn't be having this discussion and Fairey would be in the clear. I still see this as opportunism on the APs behalf.

I think if this image weren't so famous, we wouldn't be having this discussion.

Really, it's a damned shame Fairey decided to get all stupid on this. He had a real case to work, what with the rights to the photo being up in the air. I really wanted to see the AP get slapped around for this, not because they're the big guys but because they're guilty of the same damned crap they're wanting to sue Fairey over.

It's quite rare that you can catch a big entity with it's pants down like that, such as AP was over Mannie Garcia's state of employment at the time of the photograph. Turned out the photographer was freelance and, last I had read, the AP was unable to provide evidence showing that Garcia had ever handed rights of the photograph over to them.

I was very interested in the resolution of that little conundrum, too bad Fairey screwed that up by being a lying sack of crap. Not that he wasn't before, he does have a bit of a reputation, but jeez you'd think he could pull it together for something this important.

[tatiana]

Warhol and his art and copyright infringement has been discussed elsewhere because of Fairey's Obama poster. And, yes, there were various lawsuits and money settlements:

Q: Why Wasn't Warhol Sued? A: He Was

Dear Rich: Copyright is one of my favorite subjects as I work with students who will soon be school teachers. Here is a question my students have been exploring. Considering all the problems that Shepard Fairey has because of his derivative poster based on a photo of Barack Obama made me wonder, did Andy Warhol's paintings and prints of Campbell's soup cans, Mickey Mouse, Marilyn Monroe get him into trouble with the owners of those original works?

The short answer to your question is that Warhol's art has triggered some lawsuits.

Patricia Caulfield, the photographer whose work was used as the basis of Warhol's flower prints sued in November 1966 and settled for cash and artwork.

Warhol's 1964 work, 16 Jackies, was the subject of a lawsuit brought against the Warhol Foundation in 1996 by the photographer of the original Jackie photos. That led the Foundation to sue Warhol's insurer. Warhol was never sued over his Marilyns, which were based on a publicity still of Monroe.

We're not sure how Warhol managed the rights for his Mickey Mouse but apparently he didn't run into the same kind of litigation in which 60's cartoonist Dan O'Neill became embroiled. Perhaps because Dan was naughty (parental advisory), and Andy was nice?

Campbell's Soup Company didn't litigate; they exploited the efforts of their most famous chicken-noodle fan. The company even offers an Art of Soup contest in collaboration with the Warhol Museum.


There are additional links and info in the original article here:
http://www.patentcopyrighttrademarkblog.com/2009/07/warhol-infringement-lawsuits.html

And, the original source link via the Photo Attorney:
http://www.photoattorney.com/

[Peter Coene]

Sweet, I always wanted to be part of a CA lynch mob! Lets get those copyright violating scoundrels!
http://conceptart.org/forums/attachment.php?attachmentid=584734&stc=1&d=1233869906


um, I hate dredging up this thread, and I figured that this might count as copyright case on top of copyright, but I think we might have someone perusing our forums:

http://rlv.zcache.com/obama_poster_rope_hat-p148644378995856854tdto_210.jpg

I know nobody asked me about use of the image...
http://www.zazzle.com/obama_poster_rope_hat-148644378995856854

[AdventDawn]

sorta cravin some tea right about now.

[JFierce]

Are you serious?!
Someone snagged Peter's rope picture and is trying to market it on a hat?
Geeze their either trying to be ironic or are just not understanding what this thread is about -_-

[alesoun]

um, I hate dredging up this thread, and I figured that this might count as copyright case on top of copyright, but I think we might have someone perusing our forums:

http://rlv.zcache.com/obama_poster_rope_hat-p148644378995856854tdto_210.jpg

I know nobody asked me about use of the image...
http://www.zazzle.com/obama_poster_rope_hat-148644378995856854

Name and shame 'em, Peter!

[JFierce]

Oh yeah apparently its not just the hat
This same guy is doing shirts even

http://www.zazzle.com/obama_poster_rope_tshirt-235989510897509178


While if you look closely its not the EXACT image as Peters, almost identical minus a little more posterization on the upper of the rope and more rounded edges, but its obviously taken from it

[Raoul Duke]

Wow Pete that clan reference was your idea. I thought I saw it on a picket sign at a tea party on the news before.

Weather its a shameful clan reference or not, this thread has the date in which you uploaded it publicly. That's why Manley has us register our images when we upload.

[Peter Coene]

Wow Pete that clan reference was your idea. I thought I saw it on a picket sign at a tea party on the news before.

Weather its a shameful clan reference or not, this thread has the date in which you uploaded it publicly. That's why Manley has us register our images when we upload.

Yeah, the only problem is that nailing them means admitting to creating the image. Even though it wasn't with that in mind, nobody is going to mention the context if they always think of me as "hey! he's the guy that made the Obama noose poster."

On the other hand, it would get the people who ARE using this image for the wrong reasons to stop.

[Raoul Duke]

it would get the people who ARE using this image for the wrong reasons to stop.

:up:My thoughts exactly. As an added bonus you'd get the compensation you deserve.

[Two Listen]

I'm laughing, hysterically, right now.

I don't much like this guy Fairey. Mostly just because I don't really see what's so creative about the image. And I've never been a fan of that type of art. I like it from scratch. But I guess that's just preference.

...but then...this noose thing. Oh my...I can't get enough. The fact that it was brought up again after all this time, is hilarious.

Bliss. It exists.