Gap Pulls A Shepard Fairey

- - copyright, The Future

Here’s a little serendipity for your hump day. This landed in my email box yesterday (thanks Michael Mahoney) just after I’d argued that the value of an image is difficult to determine. Gap appears to have found what I’m sure they consider an unremarkable image of a Jaguar on Flickr (here) and converted it to a graphic for kids onesie’s here and here. And, if you follow Shepard Fairey’s fair use argument where he claims to have transformed something unremarkable into something remarkable (and very commercial to boot) then Gap could argue along those very same lines. Since the AP decided to settle with Fairey we’ll never know what the courts think.

Picture 3

There Are 74 Comments On This Article.

  1. when in doubt, steal
    and when accused, hide behind corporate shell and the unbrella of “fair use”

  2. I hope he wins whatever battle in which he might embark with Gap. But, honestly, I have a hard time supporting anybody who puts their work up on flickr.

    Enough already!

    • @Tim, Yes, and women who wear short skirts deserve to be raped.

      You see, it’s not the rapist’s fault if you provide the opportunity. Like it’s not illegal to steal something if there is no security guard to stop you.

  3. Please, APE, keep us posted on his, will ya?

    Thanks.

    Interesting case, which I don’t fully understand — didn’t Flickr set something up so that photogs COULD make money if buyers were interested in their images?

    Experts? Comments please!

    • @jack, Yep. You can sell liscences through Getty. But you have to enable that option. Either they didn’t have that option turned on. Or GAP just used the image anyway.

  4. See my post on the Run DMC item. The same issue. This photographer should be compensated. How much would it have cost the Gap to get in touch with him and buy usage off him? They should also get a property release from the owner of the car.

    • @John Eder, surprisingly I was contacted by a major TV network to buy usage rights to an image on Flickr. They we’re only using the image for story boarding but wanted to play fair. From what I can tell through follow up it was never used in a campaign. .. I guess There are exceptions to the GAP. Honestly I was kinda shocked they even got a hold of me.

      • @Jimmy, I’ve licensed a couple images after they were found on Flickr. One for an in-flight magazine story and another for a book. I’m sure there are a few out there that I’ve never found out about though.

    • hugh hamilton

      @John Eder,

      I fail to see why the owner of a generic automobile parked in public would need a property release.

      this is from the photo attorney blog
      http://www.photoattorney.com/2006_05_01_photoattorney_archive.html

      Take, for example, the property release. Readers of my blog know that the law does not require permission to take and use a photograph of property, so no release is required except when trademarks or copyrighted works are at issue. Most photographers understand that you may stand on public accessible land to take a photograph of a building without a release.

      • @hugh hamilton, I’m just going by my own experience as somebody who sells pictures – I have contracts with several stock agencies – and as the attorney in your link notes, they will not market a photo for use in advertising without a property release – this can go to extreme and even absurd lengths – for ex., I took a shot of a bldg here in L.A. and then covered the entire thing with leaves in post, as if the whole building had been overgrown with vines. I even added extra stories to the bldg., took away some aspects of it, in short the bldg as represented in the photo did not exist in real life. I submitted it without a release believing, hey, this bldg does not really exist as it is presented here. The agency rejected it and in fact someone in the vetting office recognized the bldg as an IBM headquarters and noted that if the bldg appeared in an ad for say Microsoft or some other competitor to IBM – then IBM would be pissed and sue them, resulting in dire consequences for all concerned. While a corporate HQ is a different animal than a random car on the street, the letter of the law is the letter of the law – copyright is a real thing with laws governing it, esp. when things are used as advertising.The link from the photo attorney does not directly address the issue of taking a pic of a bldg and then turning around and using it in an ad, that is illegal without a property release, as I understand it thru my dealings with stock agencies.

        • @John Eder,

          That’s a policy of stock agencies, because although it’s 100% legal to use photographs of buildings (even very distinctive ones – ie: Rock N Roll Hall of Fame), the agencies do business in foreign territories where the laws vary (for instance, in Brazil, images of Oscar Niemeyer buildings require permission of the Niemeyer Foundation in order to be published).

          It’s also because stock agencies are overly cautious and protecting their interests – they don’t want to spend the money and time disputing claims, even if they are unfounded or have no legal precedent and they don’t want to get into politically difficult scenarios with clients, such as the one you mentioned with the IBM building being licensed to Microsoft.

          Images of objects taken from public spaces are legal though, as long as the object is not a copyrightable or trademarked work.

    • @John Eder,

      I would think that the Jaguar itself is a copyrightable work, not to mention the trademarked emblems on it. Wouldn’t that mean you would need a release from that company to use the image for profit?
      It is the main object in the image after all…

      • @Mr. Biggs, In the case of a car on the street, I don’t think so. I did the whole covering leaves thing with a car, by the way, and just used some random cars off the street. But I changed their profiles, used wheels from one, body from another, warped out some of the lines, so it was not recognizable as a specific model, and the stock agent accepted it. But this kind of thing is totally case by case, for ex., the actual profiles/silhouettes of cruise ships are copyright protected, weird true fact.

        • @John Eder,
          Either way – this is a specific model from a specific car company that has paid a lot of money to have the car designed this exact way. Since it is the main item in the photo it could be said that the representation of the Jaguar itself is being used to make money. If it were in the background or blurred out, I am not sure the company would have much of a case.

  5. It is very disconcerting when a corporation willfully infringes copyright laws, yet fight, with substantial legal action, any infringement of their own trademarks. Try doing a shoot with a GAP logo in it without permission! I guess all of those well paid lawyers don’t see the similarity.

  6. I’m afraid the only way to prevent this is to keep your images locked up in a box labeled, “for your eyes only”. That, of course, is ridiculous.

    Companies must be held accountable for misappropriation of work done by others. The best make it stick is to register your images with the Copyright office. It is easy and inexpensive. At the very least, register anything you intend to post publicly.

    Good luck Chris.

  7. If I were that photographer, I’d buy 100 of those silly shirts and send them, along with my business card, to 100 potential clients. I’d also send The GAP a thank you card for the great exposure and offer my services for any upcoming projects. From a creative perspective, it’s a far more productive strategy than crying about an insignificant photo being repurposed for something slightly less insignificant. It’s also more rewarding than handouts, unless of course, he’s in the handout business.

    • @Keith, It’s not an insignificant enough image for the Gap designers to say “let’s not use it it’s insignificant.” Also designing, printing, shipping, providing retail or web space and the salespeople to take the orders are not insignificant investments. Letting them get away w. it is un-right.

      • @John, designing, printing, shipping, providing retail space, web space and employing salespeople is the business they’re in. They didn’t make that great investment for this one shirt design. That would be preposterous. Imagine, some GAP executive stumbling upon this photo on Flickr and saying, “Hey, I think we’ve got something big here.”

        That’s what’s exasperating about this post. It’s the assertion that The GAP has wronged this person vs. appreciating the irony that his dull photo was put to some use.

        Of course The GAP’s designers should be more ethical in their practice, and there’s even time for them make it right, but to expect that from them within the context of this photo is a nuance to an old argument that might be more interesting to discuss.

        This snapshot is not unique, it was not shot artfully which would make it difficult to replicate and it was posted on Flickr to boot. What would make them think that the person who posted it would even care? The designers didn’t even attempt to alter the details of the design, which could be for lack of talent but could also be evidence that they didn’t think it mattered to anyone.

        Instead of echoing the same old grievance, why not help to change our own behavior. Let’s copyright our images if we think they’re worth something and let’s not post our work on Flickr anymore if we don’t want anyone to be inspired by it.

        I took a crappy picture of a bicycle that seemingly wouldn’t be of any value to anyone. I’d be tickled to see it repurposed into something interesting. That would be payment enough.

        • @Keith,

          For the record, Flickr has copyright notices that the user can set for images. I think they can be marked as “copyrighted” or “creative commons”, where you basically allow usage with some limitations. Or, you could not list it as copyrighted or otherwise. The Gap’s claim to legitimately using the image hinges on how the guy had his image marked.

          If it was marked “copyrighted”, there’s no argument that can be made that they shouldn’t have contacted the photographer prior to using the image. It doesn’t matter where images are posted online; if they’re marked as copyrighted, then stealing them is illegal and unethical. Stealing isn’t “being inspired by”, it’ just stealing.

          You’re right about people needing to copyright their images if they’re worried about having them stolen. I register all my images with the LoC, regardless of whether or not I think anyone would want to steal them. (The government says that a creator of a work has an instant “copyright” over it at the time of creation, but this is useless in a court of law and you need to register it with the copyright office.)

          That said, no artist has to enforce their copyright. If you want to post your images and let anyone use them because you’d be “tickled” if they did, that’s your right. But too many corporations out there (and other “artists”) think of the internet as a vast clip art library.

          If anyone is going to make money off my work, it’s going to be me. If they want to license it from me so we can both make money, that’s fine. But they’re not using it for free unless I give them permission to do so, regardless if others on the internet deems the photo dull or unworthy. After all, art is nothing if not subjective.

          • Which is exactly why my 8800+ photos are marked with a copyright symbol and “all rights reserved.” Some are now hanging in a local medical office, and yes, I got paid.

      • @John Eder,

        It’s definitely not right to steal an image (or anyone’s original work regardless of the medium), but Keith’s suggestion has some merit. I remember reading a story years ago about a copy of a painting that was “appropriated” for use on a set of a major comedy like “Friends”. The artist was justifiably angry and I think the artwork was removed from the set. It was argued in the article that a better option would have been for the artist to use the situation for marketing, since said artist was largely an unknown.

        If you’re well established in the field it would make more sense to let your lawyer do the talking. If it had been one of my images that was stolen, I’d definitely consult a lawyer, but I’d also weigh the options of using the opportunity to break into a larger market.

        • @Jim This is a slippery slope as the cliche goes. The idea of using a copyright infringement to further a career is not the issue. What is at issue is did the Gap violate copyright law, which they did. For the photographer to solidly enforce his rights, it would help for him to have legally copyrighted the picture, but just by being the creator the law is still on his side. This kind of issue is going to be increasingly common in the internet driven media world where it’s real easy to appropriate images. Entire careers are now built on appropriation, see Mr. Brainwash, Richard Prince, Shephard Fairey, etc. etc. Photographers should have zero tolerance for this kind of thing, and end users like Gap designers should be so scared of being sued that they automatically do the right thing, no matter how pro or amateur, famous or obscure the shooter is.

  8. ‘Designers,’ and I use the term loosely as they seem to have more in common with a photocopy machine than any sort of real creative..
    I have been noticing for quite a long time now, they have been knocking of photographic works for their ‘cool tee shirt designs’.

    Thanks right! Just steal some iconic image (or an image of an iconic car in this case) and add a tee-shirt.

    Fashion design used to be a skill; or so I imagine.

  9. This may be a dumb question but does the car belong to the photographer? If not, does the photographer need to get a signed property release before licensing the image?

    Also, Jaguar is a very iconic, luxury brand so I wonder how they feel about having one of their distinctive automotive designs screened on an inexpensive/mass-market onesie, as cute as it may be.

  10. I would love to hear how the details of how the design for this shirt came to be.

    Clearly they stole it from the photographer — I say “clearly” because they kept the same power line reflections on the windshield. Remove those and tweak a few other things and suddenly it’s much harder to prove it’s from the same source.

    Also, I find it odd that people here “have a hard time supporting anybody who puts their work up on Flickr”. That’s almost like saying you find it hard to support anybody who has photographs that appear somewhere on the internet. Sure, there’s a lot of chaff to sift through there, but believe it or not, there are photographers who use it as an additional marketing tool and have had success doing so.

    OK!

  11. This is a very interesting post with some intriguing comments. It would be exciting to have Jeff Sedlik with PLUS to extend his expert witness perspective opinion. It would also be interesting to hear from the rights clearing side of The GAP.

  12. The photographer should be compensated. The worthiness of the photo has absolutely no bearing on the matter, until the day comes when we can quantify the worthiness of art. I don’t care what Shepard Fairey and AP say.

    One other thing – you don’t need a property release to license a photo of a car.

  13. The big difference between this and what Shepard Fairey did is that Fairey took an editorial photo that was copyrighted and made a creative work from it, which he then sold. Gap has taken a creative photo and used it in a commercial work (selling clothing). The courts have always been clear that commercial usage (in service of selling a commercial product) of a work is never fair use.

    • @NF,
      Yes, I think that his intent would play a big role and the fact that the commercial success came after he created the poster as an artistic work but he would eventually lose because so much of it was directly copied from the original photograph. He lied about which image he used to obscure this fact. This case is relevant to that:
      http://en.wikipedia.org/wiki/Rogers_v._Koons

  14. Michael Rubin

    So then what about compensation to Jaguar for using their brand, product and logo without license?

  15. I wonder if the car in this image belongs to the photographer?
    If not – then I can’t say I feel too bad for him.

    If so – then yes the image is pretty unremarkable, yet it is still his image either way. Gap should compensate for using the image for profit since it is clearly not just an artistic expression. Gap could have gone out and photographed their own Jaguar. Or God forbid they by an image on a stock site – but the reason is clear why they didn’t do that – the stock sites specifically state that you may not alter the images to resell.

    So it looks like Gap was avoiding image fees by nabbing something off of flickr that does not have a specific image altering statement in the fair use terms.

  16. 1) No property release is needed — the car is parked on a public street, and there is no ownership permissions required in anyplace that can reasonably accepted to be a public space.

    2) The whole compensation for Jaguar issue is just as specious. There is no visible, discernable indication that the car in the image is a Jaguar, even though many people may recognize it to be. Everyday on television you can see programs or advertisements that show a recognizable product with the viusal brand removed – this is perfectly acceptable.

    3) The photographer’s image is automatically his copyright unless he specifically assigns the copyright to some other party (this is usually required to be in writing).

    4) Gap just tried to rip this off without paying for a stock image – or making their own. I hope the photographer gets compensated.

    • @RJ,

      1) To take the picture, true. To use the picture commercially, not necessarily true.

      2) Not perfectly acceptable, Jaguar DOES have rights, which MAY be upheld.

      3) True

      4) This

      • @Victor John Penner,

        1) Yes, it is true. jesuschrist, people — this is settled law. Property does not have a right to privacy. If you aren’t trespassing when you take the photo, it’s OK to take it, use it, license it, etc etc. Read all about it on Carolyn Wright’s blog, PhotoAttorney.com

        2) Wrong. Jaguar has no standing here. That would be akin to saying that Levi’s has a say in every photo in which someone is wearing a pair of their jeans.

        3) At least everyone agrees on copyright.

        4) Hmmm…not sure what you meant, I think your last remark got truncated accidentally.

        • @Scott Hargis,

          Scott,

          You can take the picture. You can do a lot of things with the picture that are considered “fair use, this does not NECESSARILY mean that you can license it to me made into a product like this image was.

          Do you think that Levi’s would go after the GAP if they used a photo of Levi’s on one of their shirts? Of course they would.

          Carolyn Wright is a fine person, I have an IP lawyer that I use for my business and believe me I do understand these issues. I have been licensing images and designs for close to 30 years.

        • @Scott Hargis,
          It falls under Trademark law. It’s entirely possible that Jag has tm’d the silhouette of their vehicle and that they sell t-shirts with screens from pictures of their vehicle’s silo on it. That would be a problem for GAP.

          • @A Photo Editor,

            I thought we were talking about the photographer’s situation here. Appropriating a logo and printing t-shirts sounds like a different discussion.

            • @Scott Hargis,
              Ah right, sorry, just throwing it out there in the discussion of property releases for commercial use of images. lots of different threads on this one.

  17. It is quite possible this image is too common (artless) to copyright. Just because a shutter is released in someones hands does not mean the resulting exposure is worthy of copyright protection. (Did the photographer register the image with the gov?)

    There are certain places in the world that draw millions of people every year, most expose a frame or two of these scenes, resulting in billions of near identical frames. Places like Niagara Falls, The Eiffel Tower, Washington DC monuments, Tunnel View Yosemite, Grand Canyon from the Skywalk, etc. Images from and of these places require a degree of art, craft, or uniqueness which is above the common in order to have any value with regard to copyright protection.

    The Jaguar image is generic. As others have said, Jaguar may have more rights than the photographer.

    • my point exactly. you are in the Shepard Fairey camp, where the artistic merit of something determines whether or not it receives copyright protection. any company making t-shirts can just troll the internet for un-artistic images to use for free. pictures of your kids and wife as well. don’t put them online because that banal garbage is no longer protected by copyright.

      • @A Photo Editor,

        Not exactly. Access is an important consideration. How many people have access to your wife and kids? Images are often common and artless because of the easy access. Public access and a common style of capturing what is publicly accessible dilute the unique qualities of an image. Content/subject are important to the “art” of the image.

        Interestingly we may yet see this perception of commonality or artlessness applied to images created primarily through the ease of digital capture and tech, as well as through the glut of over supply and access to these images provided by the cyber world.

        Mannie Garcia had access to a subject (Barack Obama) which is not exclusive, but is image also does have a degree of art. Shepard Fairey derivation (imo) does not significantly change the communication or context of the Garcia’s content. I do see Fairey as a copyright violator.

        Whereas, in the case of Richard Prince, I believe his work with the “Marlboro Man” is not a copyright violation. Because he has co-opted an image which is part of the cultural influence of western culture.

        http://www.aphotoeditor.com/2010/06/11/sam-abells-cowboy-photo-for-sale-again-not-by-sam/