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…

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

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.

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…

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.

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

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?

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!

Here is a link to the image and the sculpture: http://www.law.harvard.edu/faculty/martin/art_law/image_rights.htm

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.

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

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?

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

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 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?

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.

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.

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.

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.

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.

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.

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