The Obama Hope Poster, Shepard Fairey and photographer Mannie Garcia

- - copyright

Now that the photographer of the image in the Obama poster has been found (here) fair-use debate can begin in earnest.

obama-hope

Photographer Mannie Garcia had this to say over on Tom Gralish’s Philadelphia Inquirer photographer blog:

“Of the iconic poster he said, ‘I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture. I thought, ‘that’s familiar.’ I would see it and say that’s cool, but it did keep sticking in my head.’ He was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

“I talked with him again this morning, and he is still proud his photo is the basis of the painting that now hangs in the National Portrait Gallery, a part of the Smithsonian Institution, in Washington, DC – the first portrait of the new president to enter the national collection.”

I followed a post by Carolyn E. Wright of the photo attorney blog where she brings up “thin copyright- where there is not much original copyrightable expression in a particular work” (here) to a discussion on Madisonian.net (here) where a commenter (Bruce Boyden) has this to say:
“The third and most difficult question is whether the copyrightable elements in the photo have been infringed by the poster.”

“To figure out the answer to that, you have to do more than just hold the images side by side. That’s because there’s a lot about the photo that is not the creative work of the photographer and therefore not copyrightable — and copying that stuff is not infringement. E.g., Obama’s face. Drawing Obama’s face does not infringe on this photo.”

“Once you’ve figured out the creative bits that the photographer contributed to the photo, the next step is to figure out if *those bits* have been substantially copied by the poster. ”

and Carolyn had a comment earlier in the thread where she says:

“It’s a common excuse for copyright infringement – the photo wasn’t anything special and anyone could have shot it. That begs the question – then why didn’t they?”

The Art Law blog has more (here) including this tidbit:

“”This would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose… campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there’d be a strong argument for market harm”

which leads to this from Time magazine (here):

“I would think Fairey would not have much trouble proving that it was his pulsing three-color reinterpretation of the Obama photo that elevated it from press conference news photo to icon.”

and finally a bunch of law professors get in on the debate (here):

“changes in color and style have been held not fair use before, see Rogers v. Koons”

I am of course fascinated by the debate… you may not be.

There Are 53 Comments On This Article.

  1. To my eye, the artist’s bold use of solid colors, coupled with Obama’s expression and the angle of his head, is reminiscent of the look and feel of more than a few, early Cold War Soviet and Red Chinese propaganda posters or possibly New Deal posters from the 30s and 40s.

  2. It’s a popular Icon now for sure. Shepard has some great ole school training. He worked for Jobless Anti-work wear. A cut-n-paste design shop which produced clothing products for skaters, rockers, whomever. That was a while back but he has definitely designed some amazing work to date. I’m psyched that this Obama design is going places.

  3. @jimmyD – A good portion of Shepard Fairey’s art over the last two decades has been heavily influenced by the former Soviet Union and China. The style in which the Hope print was done in is not new to him at all, he’s been doing it for years.

    • @Mike Panic, Thanks! I now realize I’ve seen his work before, just didn’t put it together with his name.

    • @Mike Panic, “Shepard Fairey’s art over the last two decades has been heavily influenced by the former Soviet Union and China” Then its appropriate.

  4. Manny is remarkably generous and understanding, and good for him in this case. It’s his image and he’s entitled. But I can’t forget Koons arrogantly thumbing his nose at photographers whose images he copied(while laughing all the way to the bank). Therein lies the problem-the potential for “fair use” to be used to achieve an unfair end. Copyright exists for a a good reason and attempts to weaken its protections need to be resisted.

  5. I know : money is always the issue… but I still don’t get all this thing about copyright. Mostly when photographers (I am one) sue artists or vice-versa. I do not get it I just do not.
    In France, where I live, they came to a point that they can sue a photographer for almost shooting anything (example : if you publish a picture of the Tour Eiffel by night, be aware that the illumination of it it’s copyrighted so you need authorization!!!)
    If we continue like this we’ll not be able to take pics of anything nor do art about anything (imagine Andy Warhol sued for his Soup Cans?).

  6. It’s an interesting legal debate, indeed. But I can’t stop thinking about the etiquette of these situations. I’d have a lot more sympathy for artists like Fairey if they would make some effort to contact their sources – even if it’s after the fact. Why wouldn’t Fairey want to track down Garcia to at least thank him? The above photo is strengthened by Fairey’s contribution, but it wouldn’t have that iconic strength without that *particular* photo, and I’m sure Fairey knows that. Anarchic appropriation by artists who remain anonymous I can fully support. It sends a clear message to the world about the problems of ownership and the beauty of “mixing” and “mashing”. But when the artist signs something that’s clearly a collaboration without any mention of the contributing artists , and he uses it to promote himself, well….all legal issues aside, I just think that’s bad form.

  7. if you listen to the Terry Gross interview on Fresh Air with SF, he pretty much admits that what he is doing is illegal, he says that initially the Obama campaign could not endorse the first posters because they were being distributed illegally (with respect to posting in public places i think) and later they gave him some images that they had clearance for which he then turned into legitimate campaign posters for distribution–which acknowledges his modus operandi of understanding he is infringing but doing it anyway because he was willing to take the chance.

    Proving the old rule, it is easier to be forgiven than to get permission.

    What is interesting is that we have established percentages for Rep fees, agency fees, etc, with some variation of course, but the mafia concept of kickback or “taste” works well in these and many other areas. Should an artist not set aside a percentage, a “taste” for those other artists from whom they borrow?

    “Shepard, your a good earner, da boss is really happy, but, ya know, it would be a sign of respect if you kicked a little upstairs, you know? Other wise, der could be trouble…just sayin…”

    He gets around this by saying he has not made a dime off the Obama campaign, which may be factually true, but is naive. The lovely Jennifer Anniston has a phrase ‘dining out’, when the paparazzi take pictures of her she feels they are ‘dining out’ on her popularity. Whether you agree with her popularity calculus or not, Shep is certainly “dining out” on Mannie Garcia.

    If you’re gonna make me pay for dinner, at least a little smooch in return huh?

    • of course by this logic I am dining out on every person I have ever photographed and every architect who’s building I have included….and so on.

  8. The legality of the poster is a secondary interest compared to how lightly Garcia is taking this. I mean, regardless of whether it is legal, you’d have to be pretty stunned, amazed, ecstatic and in my case pissed about this situation. This poster is a money making as well as a historically significant machine, and Garcia will definitely be over looked historically and monetarily for being an intricate part of this iconic equation. I think he should show a tad more emotion than, it would be cool to “get a signed litho or something from the artist to put up on my wall.” If he’s okay with it, he should be really(!) excited about it, but he seems generally ambivalent to an extraordinary situation.

    J

    http://www.jdittmarphoto.com

  9. I heard Fairey on NPR last week talking about this and cringed when he said he had no idea who the original photographer was, but thanked him or her.

    It’s possible for a very good artist to render something without copying something directly…Fairey could have looked at a number of different images of Obama and created his own. But he didn’t. He used Mannie’s image and Mannie should get credit for that. Also, what if Mannie didn’t support Obama? Doesn’t he get some say in how his image is used (if he owns the rights to it)?

    Whether or not Fairey made a penny off the Obama campaign directly with his work, it’s raised his cachet as an artist and made him world famous. At the very least, the original photographer should be credited as well.

    • Robert Paulson

      @Lane Hartwell,

      You say; “Whether or not Fairey made a penny off the Obama campaign directly with his work, it’s raised his cachet as an artist and made him world famous. At the very least, the original photographer should be credited as well.”

      What you don’t know is, that for the past two years Shepard Fairey has been one of the most important emerging artists in the world. He did not need the notoriety he received as a result of the Obama campaign poster. It obviously gave him much publicity but he was already there with out it.

  10. I just don’t get the whole ‘the poster is cool so therefore there is no infringement’ argument. You either have a right to modify/adapt the work or you don’t – the quality of your adaption isn’t a mitigating factor.

    A lot of these posters are hiding behind straw men – there is no legal debate about whether photos are copyrighted works or not, photos do not have to be of exceptional quality/uniqueness to be copyrighted, and there is no legal concept of ‘copyrightable elements in a photograph’ [see http://www.photosource.com/psn_full.php?type=Headlines&id=74.

    It's hard not to see this and think of the wider issue: many people just don't value photography [as an art, as a medium, as intellectual property].

  11. I recall a very late night, seeing Shepard Fairey’s posters going up on a fenced in (recently closed) building many years ago. He had to trespass to put up the posters, which at the time was sort of a new form of graffiti. This aspect of doing things you are not supposed to be doing has been prominent in skater culture, and in his work, for many years. I think the difference was that many years ago he was struggling to make any money.

    Now that the situation has changed, and he is part of the established elite, it almost seems more like greed than appropriation. Sure, the skater attitude is still there, but does he really have a valid reason for doing things the same way.

    As a starving artist, one thing insulating him from lawsuits was his lack of money. Now that he is clearly making a good income from his work, I think it is only a matter of time before someone challenges a Shepard Fairey work. The difference is that as long as he appropriates images from lesser known photographers, or those with few financial resources, then he is more likely to find a favorable outcome. Copyright challenges sometimes seem to boil down to who spends the most on their legal teams.

  12. Anyone care to comment on how they think this case is different than the Richard Prince case? Hopefully something beyond the obvious that the Richard Prince case is already in legal proceedings.

  13. This is simple.

    Could Fairey have created this art as it appears without the source photo? No.

    His work is derived directly from the photography no matter what style was applied in terms of it’s actual execution.

    He had to either get permission from the copyright holder (Photographer) which he didn’t, or pay to use the photo which he didn’t either.

    Fairey needs to read up on Copyright laws because claiming fair use doesn’t even apply in this situation. What is fair about him taking another persons creative work and financially benefiting from it? Nothing.

    A photographer is by default the copyright owner of his photographs. If he’s gone to the trouble to actually register the copyright it’s even more iron clad but not necessary to prove copyright.

    This photographer has ever right now to be compensated for this photos use in all it’s various incarnations. Fairey may pride himself as a “Street” artist and think violating the rules is all the rage but he’s now cashing in on a commercial level and is just as culpable as any other artist who infringes upon another persons work.

  14. Seems to me that the work that underlies both the photograph and the poster is Obama’s face. If anyone has the right to copyright it, why not him?

    Yes, I understand all of the legal b.s. about pubic image and fair use and all that. But the fact that the legal framework allows someone to snap a picture of someone and then “own” that image and (potentially) seek damages against people who thereafter use that image really just points to intellectually bankruptcy of the current copyright system.

  15. “Could Fairey have created this art as it appears without the source photo? No.”

    The fact that at least two photographs have previously been identified as __the source___ would seem to disprove this.

  16. Interesting situation. Thank you for going into details about it. Aside from whatever copyright issues people might have or not have I to would be proud to have had my photo used for the poster.

    Cheers
    Alleh

  17. I don’t think the poster usage falls under the term of fair use. Whether a photograph is “easy” (i.e. anyone could have take it), not interesting (mundane), one of a million (not one IN a million) shouldn’t matter when it comes to copyright. The photo is copyrighted the instant the shutter is released and the image recorded to the film or sensor. The poster use is only slightly, if even, different from Prince’s appropriation in that the end product is more different than the original than Prince’s manipulations tend to be. But, the end result is the same.

    If the photograph had been more iconic and “rare” would Garcia feel the same way about its appropriation? Has this particular photo been used anywhere else? Seems to me the photographer sees the photo as a throw-away that happened to get a second life and helped boost his visibility a bit in the process. Maybe a bit of back scratching should be in order by Fairey if he’s not going to be sued.

    I dislike most of the true or false aspect of the law, the hard resistance to much of the gray matter in between (where this issue falls). As photographers (artists), we need to make the decision for ourselves if we are going to draw the hard line or let those things slide that are clearly infringements but help us out in some way.

    By what principles do we as individual photographers act? It’s certainly easy for us to comment on this and other instances. We don’t have a direct stake in the outcome.

    But, what would you do, really, honestly, in the same situation? Would you hard-nosed “make him pay” types really do that or would you appreciate the bit-o-fame?

    Would you “hey, it’s more exposure than I could have gotten on my own” types really let it slide or would you want to get some money to help pay your mortgage, buy some new gear, or fund that promotion campaign you’ve been wanting to do for years?

    I can’t say what I would do until I’m placed in that situation. I hope I would try to make the situation a win for me as well, whatever course that might take, and to whatever extent I would need to go to make it happen.

    The hard line is this appears to be infringement. The gray matter is anybody’s guess.

  18. It matters that it was just an average shot and not a great or famous shot. He picked up something up that was otherwise unnoticed and gave it a unique life.

    Just think about it: if the photo was already an icon, then how would that change your reaction to the poster? Of course, you would say that the copyright was infringed, because anyone could have spotted the resemblance then.

    But what do I know. Common sense tells me that photographing the Marlboro Man directly off a billboard is wrong — but I guess not.

    My vote is not to shackle designers but to give them the benefit of the doubt and as much freedom as possible.

  19. The poster is a derivitive work, which is allowable under copyright law. The lawyer in the article should have admitted it. Otherwise, Weird Al Yankovic can be sued for every popular song parody he’s ever produced and sold. Nothing to see here, folks. Move along.

    • @james, The original owner of a Copyrighted image has the right to create a derivative work:

      http://www.law.cornell.edu/uscode/17/106).html

      People might want to read the Berne Convention, Madrid Protocols, Universal Copyright Code, and the US Copyright Laws, before making encompassing statements about what is or is not Fair Use, especially in derivative works:

      http://en.wikipedia.org/wiki/Derivative_work

      Lots of good links there. Also try:

      http://en.wikipedia.org/wiki/US_copyright

      http://law-ref.org/BERN/index.html

      Problem that is when people make these assumptions, it opens up misinterpretation, which can lead to abuse. People who want to work under these laws should know a little about them, and realize there is room for interpretation, often only solved in court.

      The proposed Orphan Works Bill in the US could have been one defense Shepard Fairey might have tried. He could simply claim he tried to find the originator of an image, and could not, thus limiting challenges and potential damages against him.

  20. I guess Fairey could care less, just cashing in the checks. Sad, but very telling about all sides of the industry. This has and will be going on for years.

  21. Richard L. Enison

    Regarding the issue of non-copyrightability of photos: this puzzles me. Because the photographic company that comes every few years to my church to take pictures of members for our directory (for a fee, no doubt), turns around and sells copies of our own pictures to us (if we’re interested in buying them). That is, in addition to the limited number of small copies we get at no additional charge. In the package my copies came in is a legal statement saying that these photos (of me!) are copyrighted by the photographic company and I am not allowed to use or make copies of them, either photostatically, electronically, or otherwise, without their permission. They are claiming ownership not only of the artistic arrangement of the photos on the pages of the directory, but of each individual photo itself. I am having a hard time reconciling that with statements made on this web page. I guess that’s why I’m not a lawyer.

  22. illustrator

    First of all, illustrators have lost the rights to their own work as most companies now will only work with artists who sign “work for hire” agreements that transfer all rights to the purchasing company who would collect for themselves any resale commissions of the original artwork. Secondly, illustration is now often outsourced to countries such as India. Houghton Mifflin, one of the largest k-12 publishers, for instance, now primarily outsources to India for pennies on the dollar which halves an illustrator’s income at best if they are to compete. Thirdly, reps take 25% at the very least. Such factors as these make it next to impossible to imagine having to compensate source material holders especially to leviathons such as AP who own the rights – not Garcia – and put food on the table at the end of the day. (Garcia gets a thank you, AP gets the kick-backs.)

    I imagine that artists — as Mannie does – understand the creative process and respect the flow of creativity that is sparked from one source to a new one making it unique. It’s the corporate world (bestowing billions in bonuses to themselves after taking TARP money) who would pry every bit of compensation they can muster from a struggling illustrator in the name of derivative infringement.

    Albeit, Fairey is very successful and not one of the strugglers. But 99% of the working artists in America work 12 hour days seven days a week 365 days a year to turn what’s effectively an hourly minimum wage into a survivable living. We can’t afford to take our own photographs. Say you get $500 to do a quarter page editorial spot of Obama for Newsweek (less – $200 a spot for textbooks). How can you then afford to do a photo shoot? And getting a good likeness of someone so recognizable from a compilation of source photographs takes hours and hours of refinement to nail. Then you could be told by the art director that s/he doesn’t like that angle, please re-do from a new angle. Color then needs to be applied and, most likely, further changes will be ordered by the art director. So now you’ve most likely averaged about ten dollars an hour on the job and would be richer flipping burgers.

    What I’m trying to say is that without using photos as a basis for our work, Illustrators in America would not survive. Only the one’s in India would and AP would probably have little luck suing them!

    • @illustrator, Shepard Fairey is not just an illustrator. He is also considered a fine artist. If he created the image for a corporation I can see your point, but he created this image on his own time not as part of his business per se.

      It is not about how nice or lovable you think Shepard Fairey is nor is it about how hard he works. No one is questioning the good that he has done or how hard he works. What people are questioning is the fact that he has willfully infringed on copyrights several times. In one interview he actually said that if he is “busted”, which is what he calls being caught for infringement, he hopes that it is a “good bust”, does not involve legal action.

      People are outraged because the same thing that happened to the music industry is now trying to happen against the visual art industry. Contrary to popular belief for many of us art is a business. We create out of passion and if we can profit from it good. But how can an artist profit from hard work and dedication if an artist like Shepard Fairey can take from that work and do what he sees fit to it FOR PROFIT while holding on to a fragile foundation of fair use. If we follow Fairey’s idea of fair use all images would be up for grabs. He tends to use images that are not widely known. That is why fair use does not apply. The photograph of Obama itself was not a widely known photograph.

      I’m personally sick of people using Warhol and others to defend Shepard Fairey. Warhol used images that the public knew of. Everyone knew that his Monroe’s were a comment/parody of the famous photograph. The same thing goes for the soup cans. Under fair use today it would be perfectly acceptable to do that. Fairey failed at fair use because people did not make the connection between the photograph and his posters. That is because the photograph itself is not widely known. In order to claim fair use you almost have to use an iconic image as the foundation of the new work. Fairey is only saying it is fair use to cover himself and he is not doing a very good job of that.

      Since he donated over $400,000 to the Obama campaign from his profits selling the posters I hope that he will have to give $400,000 to the AP if indeed they are the copyright holder. I also think that members of the Obama campaign need to be questioned and perhaps included in any copyright infringement case that comes of this. Workers from the former campaign are now saying that they never suggested a photograph to Shepard Fairey but other articles from last year suggest the opposite. Either Shepard Fairey is a liar or the former Obama workers are.

      If this case goes to court and Shepard Fairey loses to the AP it will be a great win for artists who support copyright protection. It will help to define the limits of fair use… which ARE LIMITED in the first place. Copyright laws were not made to protect people who willfully steal. They were made to protect creators so that they will continue to create knowing their work is safe. If you have not noticed there has been a boom in the number of artists since strict copyright laws have been around. Copyright creates an environment that respects creativity. People would not openly show their works if they thought someone could use it without giving them credit.

      Maybe Obama will make a statement about the importance of copyright laws. I think he should apologize for supporting a poster that violated a US law. If he can take the time to send Fairey a personal letter thanking him for his images and for putting work on stop signs I’d think he can take the time to address copyright and why we have it in the first place.

      The poster failed at fair use because people did not make the connection with the original image. The basis of fair use is that you comment or parody another work. If that connection isn’t made fair use does not apply. Saying that the public or the AP is silly for not making the connection only helps strengthen the case against Fairey. Keep it up.

      There is only three reasons people defend Fairey. They are fan boys. They think a slam against the Hope poster is a slam against Obama. Or they don’t care about copyright in the first place. If this was just some kid posting altered AP images everyone would agree with APs choice to seek compensation.

      There are many artists who have alleged the same thing about Fairey. So if AP wins it will open the doors for others to file against Fairey. The guy could be a pauper before it is over and it is because of his poor choices. He should have learned after settling out of court when he infringed on the copyright of Rene Mederos.

  23. shepard fairey…

    step 1.. find photo

    step 2.. run through a crummy copy machine

    step 3.. color in shapes

    step 4.. make silk screens

    step 5.. sell millions

  24. Should be an interesting outcome, Since Manny was not under AP contract when he took the photo. He owns it outright. AP has no legitimate claim other than they that they claim to own it. hehehhe

    • Mannie was under contract. I think the Associated Press would know if the image was owned by them or not. If anything Mannie should have read the fine print.

      The Associated Press situation involving the artist Shepard Fairey and allegations of copyright infringement has taken a twist. Shepard Fairey’s legal team broke settlement negotiations with the AP on Friday. Earlier today the artist filed against the AP in hopes of gaining a supportive decision from a judge concerning his use of the AP owned photograph which served as the base image for three versions of Fairey‘s Obama posters.The AP wants to make it clear that works by photographers and artists should not be misappropriated by others.

      This case will be important because if Shepard Fairey wins it could mean that any photograph or image of art is fair game. This year will either be a major blow for copyright or a year that brings a clear definition of what fair use is.

      More on the story,

      http://www.myartspace.com/blog/2009/02/shepard-fairey-sues-associated-press.html

      And why Baxter Orr’s poster involving Fairey’s Obey Giant is fair use,
      http://www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

  25. … VERY INTERESTING debate … to have FUN with this go to http://obamicon.me. This site was created by Paste Magazine. It is a graphic interface that allows you to upload any photograph of YOURS and zap it a la Fairey … (hey, who’s really zooming who here ????)

    Is ANY of it ‘ART’ ? Well, for me, NO, but hey, I’m willing to PLAY with both the mechanics of photography AND computer graphics, but if you want a real genuine and ORIGINAL hand-crafted Obama Portrait, put a pencil or paint brush in my hand and let ME do it all by my Self …