UPDATE: Scrap that AP credit. According to an interview with Manny himself over on Photo Business News (here):
“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.”
… I’m not sure what there is to discuss unless AP figured out a way to change copyright law.
From a story on Breitbart (here):
The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.
“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement.
“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”
“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”
Thanks, Thomas.
45 Comments
I have a hunch this is going to get ugly…
Watching the tellie the other day I saw on the USA network, Mr. Fairey featuring “his” poster and studio in a USA “Characters Welcome” commercial. Now wondering who else will get into the fray now that he seems to be pushing the commercialization of the poster and milking the fame from it. Yes, I believe ugly is just around the corner.
Schadenfreude: Associated Press Sharks Attack Shepherd Fairey!…
Speaking as someone who has been through this particular wringer before, I feel for the guy. Even if I don’t buy into his particular form of “theft” art.
Details of the AP attack here—To make a long story short, “We own the photo that Fairey …
Being a charter member of the “Assaulted by Associated Press Lawyers” club, I must say: I can relate to this completely.
It’ll be interesting to see how this turns out. The AP winning this case would have a serious impact on derivative works of “common” public images.
Respectfully,
Brian/snapped shot
I think the AP can stuff it. Where were they when the poster first came to prominence? Typical money-grubbers trying to capitalize on someone else’s prosperity.
Your welcome
Wow this is going to be a tricky one.
I see it’s already being seriously misconstrued on other blogs (ie: PDN) as being somehow similar to Richard Prince’s recent copyright infringement suit – the only similarity I see is that they’re both arguing it’s “fair use”… let’s review:
Fairey made a work based on a photograph, didn’t receive any compensation for it (I think this is the case) which promoted a political cause (electing Obama). He has indirectly benefited from this use, however the use itself was not of a commercial nature. Garcia’s photograph was nondescript enough to be mistaken for another similar photograph before being correctly identified (there are many similar images on the market).
Prince made a work based on a photograph, put it in a commercial gallery (a for-profit entity) and put a very, very high price on it. Prince is attempting to directly enrich himself from the sale of the derivative work. The copied work was already recognized and was individual enough to be part of a monograph of Cariou’s work (ostensibly recognized as being individual enough with a high enough market value to warrant a large capital investment on the part of the publisher).
Oooookay then.
@dude, you are absolutely right.
I first saw the Obama poster at the local Democratic convention in early June. It was riveting and beautiful. Every single poster disappeared from the walls instantly. Last week I bought a cupcake decorated with that poster image. I overheard a couple saying as they devoured theirs–which do you want to eat the red or the blue?
Fairey used an image as reference. He made it into art, an icon which helped elect a president. As far as I know you can use anything to render from when you make art. The poster is not even exactly the same thing. Fairey’s print of Obama wears a jacket I believe; the photo I saw was sans jacket. Using images of all sorts for reference is a time honored practice. If he had “copied” it then it would have lacked magic with no power to fly, as it did, across the land.
The photographer and AP should be thanking the artist for elevating their work, if that’s whose it was, to a higher and more powerful level. Just because you can draw a line doesn’t make that line sing. That’s what artists do: They read, see or hear something and make something else.
Mr. Garcia and AP could have plastered their image all over the United States, and the photograph would have quickly been swept in the trash bin because it did nothing but convey information. Fairey gave Obama meaning in a powerful and deeply political artistic manner. It’s the fundamental difference between journalism, works for commerce and the work of an artist. Fairy might have used a thousand different images of Obama with the same result but Garcia and AP could never make the image that the artist rendered.
The failure of AP to understand the purposes and making of art vs journalism represents a kind of intellectual failure, no matter what happens between the lawyers.
@Sierra
Amen.
Why would any self respecting photographer or writer still contribute to AP? I just don’t get it. This should serve as a prime example of why NOT to contribute to AP. Keep your own work!!!
I won’t claim to express an expert opinion on the fair use issue. But I seem to recall a prominent copyright attorney explaining that a copied image is a copied image. If you can go to court and prove the likeness, you’ll win. It matters not the so-called artistic or social value of one image over the other. I could be wrong. The implications that the photographer should be ‘grateful’ that his image was used to create a more attractive piece of art is ludicrous in the least.
2 key points:
1. Be original! Don’t copy anybody’s work or idea.
2. Register your original works.
Shame on AP!!!!
was lucky enough to witness the painting of one of the many pieces at the academy of arts. i was so very impressed with the way in which the work by fairey was being executed; his enthusiasm and all. yet for big-mouth AP to show up only after all the success… i find it to be completely unacceptable. shame on you AP!!!
“Transformation” will be the governing test.
“…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.” (Campbell v. Acuff-Rose Music)
The copyrighted photo might have been the first step in the process but Mr. Fairey took and then transformed it, giving it a new expression (medium), meaning (blending of red and blue, bringing a divided country together), and message (hope), none of which was present in the original image. It’s telling that neither the AP nor the photographer recognized the image after having been repeatedly exposed to Mr. Fairey’s artwork throughout the length and breadth of the campaign, from the Primaries onward.
That’s the litmus test of the transformation area of fair use in copyright law, and I can’t see that Mr. Fairey fails it.
The AP is toast.
Theirs is an opportunistically-timed shakedown, and a lesson to anyone who still holds them in any esteem.
The AP is being silly and I hope that there will enough negative feedback that they drop the suit. I read a few quotes and the photographer doesn’t have anything to do with the suit and doesn’t mind the poster. I might be wrong about this, but I think he didn’t even realize it was his image being used.
I do understand where the AP is coming from, but I think they chose the wrong battle to fight.
Does Fairey’s position mean we are free to make a derivative work of erm … the Fairey poster ?
Perhaps we can rearrange the colors a little and flip the image. And as for usage in a political cause, well it doesn’t have to be an agreeable one. Any party, however extreme and controversial, can use it under fair use
And would this mean that all of Fairey’s artistic works are freely available for similar treatment?
It seems many believe that photographers do not have any economic and moral rights
Strange how the commercial impact of a photograph is clearly appreciated – advancing a political cause and merchandising – but not the monetary worth to its creator, nor any recognition for its creation, nor any regard for the photographer’s views on its usage as a political endorsement
I’m sure this has been posted before. My apologies if it has.
http://theartlawblog.blogspot.com/2009/01/fairey-use.html
Click on name for link.
Sorry putting link in name doesn’t work. Link works fine without cut and paste. My bad.
Why did Fairey not seek a license and permission to use the image as a reference?
It is not that difficult to contact AP and their licensing department or the photographer directly to be given permission to use the image as a reference.
Not one has posted that the photographer owns the copyright to the image unless his contract with AP transfer the rights to them.
The costs of defending this action for Mr. Fairey is going to be quite a bit more than the licensing cost and doing the right thing in the first place, which was, seeking and being given permission to use the work as a reference.
@Cameron Davidson,
Hi Cameron, I’ve been completely obsessed by this whole thing and now today, with the help of his ‘posse’ at Stanford Law School, I’m thinking Fairey knew EXACTLY what he was doing in flouting the copyright laws all along. Now, hoping they can win the right to steal whatever they like, they have a juicy case they can take as far as the court will let them. I hope they lose, of course, but there is no guarantee…
The trouble for the AP is that, as far as I can tell, the work is still of unknown (or perhaps more accurately, undecided) origins.
That the work is so similar to a Reuters AND an AP photo, that they are practically indistinguishable. What’s to stop Fairey from arguing that it’s a derivative work of BOTH… or of a larger set of Obama images. An eye here, a nose here.
While there’s no doubt that Fairey is a serial plagiarist, : http://www.art-for-a-change.com/Obey/index.htm , and I think the artists he has been ripping off are due their payday, I think the AP might have a tough time of it this go-round.
There’s some misconceptions about fair use and copyright law. There are four factors in determining use. Factor 1 and 4 are the most important when a court makes a decision.
Factor 1. How transformative is the image – How much of the image was used and how much was changed. Side by side the images are nearly identical. If you take the photo and import the image into photoshop, you can hit a few buttons and make the images look like Fairey’s poster. I don’t think that musters transformative.
Factor 4. How it impacts the copyright owner’s ability to earn an income. Given that AP sells the reprint rights to use it’s images, I would say that the court would weigh in heavily that overexposure of the image would impact it’s value.
It’s is extremely difficult and costly to argue fair use in court and win. Additionally, use of copyrighted materials without permission can result in fines of up to $150,000. Creators deserve the right to earn an income for their work. If we take away this ability, there will be less art and music in this world.
Finally, just because a copyrighted image that is used to make the derivative is not sold does not factor into whether an image is fair use or not.
People should also be aware that all images produced after 1978 are copyrighted whether or not there is a notice unless someone specifically puts a creative commons notice with the image. Additionally, Google Images does not have the rights to the images on their search engine results pages. They are showing in most cases copyrighted materials.
The AP is capitalizing on the success of this image. Without Fairey’s popularization of the photo, this is simply another image of Obama at a press conference. If anything, Fairey has elevated the value of this image for AP.
Let’s not forget that the advertising industry has cashed in on the pop culture that Fairey himself has created. Does anybody remember Sprite’s ad campaign that simply used the word OBEY? I realize he doesn’t own the copyright to the word, but it was an obvious reference.
Being that this poster (it’s not a painting) did, as several people mentioned, help to get President Obama elected, at what point does it become an illegal campaign donation issue?
If you own a jet, you can’t just let a presidential campaign borrow it. You have to charge them for the fair cost of using that jet.
What value did the poster, as an ad, give the campaign?
How do you put a value on that?
You think this is ugly now, just wait.
This might even comes under that First Amendment crushing McCain/Feinstein, beastly bit of legislation.
Maybe, who knows? Don’t think there’s not some republicans looking into this.
Fairey could have licensed this image from the start for about $250 and we wouldn’t be having this conversation.
I truly hope that Garcia didn’t sign the AP stringer contract. This is going to be one of those images that is going to be written about for the next twenty years or so.
Photographers please protect your copyright. At this point, not only do the Powers at the AP believe they own the image, they believe they actually created it.
For those of you who think there’s some kind of transformation taking place when you switch mediums this has been covered by the courts before in Art Rogers vs. Jeff Koons.
Excellent article about it on Design Observer: http://tinyurl.com/cg8yon
Koons took a black and white photograph and made it into a sculpture… even added color and minor changes here and there. He lost the case. The courts focused on his deliberate copying of the photograph and even had faxes where he referenced the image and talked about copying it.
So I do think the transformation argument when you say someone switched mediums or made something better because they’re a better artist then the originator was holds no water. Koons took a black and white photograph and turned it into a color sculpture. You cannot transform more than that. A near replica painting of the picture with color added does not transform it. Nor does making something more popular or artistic (I think I argued differently on this when discussing Richard Prince but now I feel differently). I think true transformations only contain a portion of the referenced material.
In the past the courts have heavily sided with harm to the potential market of the copied work as a determining factor in fair use. I don’t think the fact that he never sold the print has anything to do with this. Giving something away is worse. The ubiquity of the subject matter in the image is what makes it worthless beyond the initial use and potentially some residual stock sales. So I don’t think the potential market was harmed
I think this comes down to whether or not Fairey intentionally tried to make a copy of the photograph or used it as reference art. Impossible to prove I think.
The bigger issue is this. Eventually a case like this will land in the supreme court and there is a very real possibility that because of the ease of taking pictures, the ease of sharing them with millions of people and the ubiquity of some subject matters the act of taking a picture will no longer guarantee copyright protection. This is just a feeling I have.
@A Photo Editor,
“I think this comes down to whether or not Fairey intentionally tried to make a copy of the photograph or used it as reference art. Impossible to prove I think.”
The presumption of innocence is a beautiful thing, isn’t it?
@A Photo Editor,
Here is a link to the image and the sculpture: http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm
“Eventually a case like this will land in the supreme court and there is a very real possibility that because of the ease of taking pictures, the ease of sharing them with millions of people and the ubiquity of some subject matters the act of taking a picture will no longer guarantee copyright protection. This is just a feeling I have.”
If that is so, then it would be a good thing. The system, as it is now apparently constructed is simply not workable and provides perverse incentives.
I thought something like this was going to happen. However, I thought it would be between Garcia and Fairey.
The Associated Press (and others) seems to have become the Walmart of photography. They profit while the little guy works his/her tail off.
I hope Smart wins over Greed.
Tony
While I’m not an AP fan, painting a photo does not make it yours. Sorry.
Letting the circumstances and feelings dictate usage is in err and short sighted. If he adds a dash of color to a famous Ansel Adams print, does that make it his too?
We like Obama. We love the image. We want to overlook the fact that it’s stolen and not liking the owner makes it a lot easier.
Think of it this way. If the image was taken by a struggling, unknown homeless man that waited in line 12 hours to get close enough to snap a picture with a hand-me-down old camera with just two frames left on the roll of film and a kind, old soul at the drug store developed the roll and then the big bad AP came along, stole the image and had their graphics dept Photoshop it- would you still feel the same way?
A few interesting links, this isn’t the first time Fairey’s work has been questioned, he’s been busted before for “appropriating” imagery.
Artist Mark Vallen does a very detailed article that compares Fairey’s work side by side with the sources they were taken from:
http://www.art-for-a-change.com/Obey/index.htm
A response to that article by the Just Seeds Artists Cooperative.
http://www.justseeds.org/blog/2007/12/a_response_to_obey_plagiarist_1.html
And a “Suggested “best practices” for using the graphic artwork of others” by Lincoln Cushing
http://www.docspopuli.org/articles/RecyclingArt.html
Hmmm… Manny’s quote ” I made the most iconic image of our time…” is suspect. I disagree that he made the iconic image, which also relates to the whole “transformation” point of Fair Use. I would argue that while he made an image of Obama, Fairey made it iconic through his alterations.
The argument about changes being easy in photoshop is irrelevant – it’s not about the ease of changes being made, it’s about the substantive effect upon the work. In this case, he omitted the background and made the palette all blues and reds – there are no skin tones in the poster, and so on…
He could also argue that the “HOPE” and “PROGRESS” text adds an element of commentary to the image which was not there before (another aspect of Fair Use).
In any case, what this amounts to is that the sharks are circling now that they smell blood in the water.
Regardless of the legal issue, it sure is making the AP look bad. Hopefully Manny will have as evolved a view as Jim Young did when the world thought it was his photo that was used.
@dude, I’m a bit surprised at what you are suggesting, though perhaps you could clarify a bit more. What it seems like is that you suggest that text and graphic elements add value to images, which otherwise would have little to no value on their own. If this is true, then every image used in advertising, and subsequently published, has no value without the text and graphic elements. This reasoning seems to devalue photography, but perhaps you can restate your implied message.
Just for background, I am originally a painter, then an illustrator (after graduating with a BFA), then a designer, and only recently a photographer. Any image out there is never free game for manipulations, alterations, transformation, etc. simply because someone thinks that they can do better than the original. I use to see a few students in college take Calvin Klein (or similar) imagery and repackage that into projects they would turn in for grades. While I was in college, I never thought that was appropriate, though in the context of a learning environment it was Fair Use. To suggest that the same behavior should be applied to commercial work, or to cause a devaluation of the work of others, is something a strongly disagree with. If you cannot be original, then are you really good enough to claim you are an artist?
ART SHMART! Fairey ripped off Manny Garcia’s photo, pure and simple. Mr. Garcia is a brilliant, gifted, award winning photographer with stunning photos from Viet Nam to Obama. HE is the artist, not Fairey, the rip-off artist who stole Garcia’s image of the President and now profits from it. We have the same problem in Nashville with our Nashville songwriters who spend their creative blood, sweat and tears just to make a few cents in royalties, only to have downloading freeloaders pirate their songs. Music is not free for the taking and neither is Mr. Garcia’s artistic genius that captured Mr. Obama’s image.
come on..he could have used any other photo of obama plain and simple.
Has anyone tried overlaying the two images to see if there was any mechanical reproduction involved?
If it was a sketch that was only inspired by the photo as Fairey seemed to say in his interview then it should be immediately obvious when the are overlaid.
Perhaps every photographer who has taken an image of Obama should run a ‘Fairey – inspired – Filter’ in photoshop on their own image and release them all into the market!
Amid all the rumblings of copyright and credit, I have not heard of any mention by Mannie that he registered the copyright. He is saying the copyright is in dispute with AP, whereas, if he had registered it, there would be a definitive paper trail. We all know that’s the legal and procedural biggie, if one hopes to pursue any meaningful court award.
Legal issues aside, I am also just wondering about the cultural memory that evolves along with this kind of thing, when a picture takes on a life of its own and kind of leaves its creator behind, in the eyes of the public. I’m thinking of the iconic image of Che Guevara, that has been reproduced countless times over the years. It has become a pervasive, symbolic graphic all its own and very few people have ever heard of the photographer, Alberto Korda. Win or lose in court, the icon status of the image seems now connected to Fairey, not Garcia.
Maybe the most interesting point here is that neither Garcia nor the AP recognized the image as their photograph after months of being exposed to Fairey’s image, and it had to be pointed out by a third party. This being the case, I would hardly say that they could claim authorship of “the most iconic image of our time.”
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Shepard Fairey arrested:
http://www.boston.com/news/local/massachusetts/articles/2009/02/08/street_artist_will_get_day_in_court_for_pasting_up_his_art/
http://www.reuters.com/article/newsOne/idUSTRE51626R20090207
Copyright issue aside (I’ll let the courts deal with it), the latest development on the arrest seems to point to a chronic behavior.
When I was young, my father used to teach me that I should not touch (as in modify, change etc) others’ artwork whether it’s visual or music without the permission of the original creator. It is a matter of respect, and decency, to ask for this permission; and I think it is very fair, very human, and how a civilized citizenship should do.
It seems to me that Fairey never asked, or even attempted to find, the original creator of this work (nor did he get permission to paste his work all over the place).
I like the poster, and have hope for Obama to do the right things. But Fairey seems to live in a world of his own, all about “me, me, me”, without regards to others who share this country with him. I am not on his side.
A thief is a thief, an artist is one who creates own work and doesn’t go
around copying photographers work. This thief never bothered to contact
anyone regarding copyright (which is very prevalent after all its just a picture)
Plus of course Mr Fairey isn’t making any $$$ from this project. So he can
hide behind the “The Fair Use Doctrine”
Mr Fairey is directly or indirectly a genius the $$$ it would cost to “create” a campaign to get his name out in the public not to mention his past work
is worth a bundle.
We must answer the following riddle: When is a photograph no longer a photograph?
Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.
The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.
There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.
Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.
Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.
The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.
Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other–all remain perfectly distinct and identical to the original.
Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction–but photographic nonetheless.
We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.
http://bulk.resource.org/courts.gov/c/F3/207/207.F3d.1119.98-16061.html
a response to mark vallens claims:
http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/
Another Photographer Angry: NORML Rides the Bandwagon…
Duuuuuude.The National Organization for the Reform of Marijuana Laws has designed a rather curious poster to celebrate their upcoming junket.
Understandably enough, the photographer responsible for the original picture is right hopping mad at the un…
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