Is the Obama Poster a Copyright Violation?
posted by Daniel Solove
From the AP:
Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.
The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.
The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.
Fairey’s Obama poster strikes me as sufficiently different from the photo. There is certainly a resemblance, but they are far from identical.
To the extent that some elements of the photo are duplicated in the poster, it isn’t clear that Obama’s facial expression is unique enough to give the photographer the right to copyright all subsequent renderings of it. Can one, by taking a photo of a person, have copyright over all subsequent depictions of that person from that angle or with a particular expression or posture?
Moreover, the poster might constitute fair use. The fair use factors include:
1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market
The poster isn’t a direct copy of the image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo. The AP seems to be attempting to be money-grubbing here with this rather petty copyright claim.
But copyright law is suffering from a bit of delirium these days, so it’s hard to know what’s up or down or fair use anymore. Thus, I’ll throw this out to the intellectual property experts. Copyright violation? Fair use?
Image Credit: AP Photo by Manny Garcia and poster by Shepard Fairey. From Brietbart.com
February 5, 2009 at 10:02 am
Posted in: Intellectual Property
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Responses (62)
James Grimmelmann - February 5, 2009 at 11:19 am
Unambiguous fair use.
Anon - February 5, 2009 at 11:31 am
To shed additional light on this, one might wish to google around for other alledged copyright infringements Mr. Fairley may have commited.
Mark McKenna - February 5, 2009 at 1:35 pm
James -
Though I share your sense that this is probably fair use, I would never use the words “unambiguous” and “fair use” in the same sentence. I’d say my level of confidence is about a 7 on a scale of 1 to 10.
Bruce Boyden - February 5, 2009 at 1:40 pm
Prawfsblawg coverage here: http://prawfsblawg.blogs.com/prawfsblawg/2009/01/a-question-for-ip-folks.html
Madisonian here: http://madisonian.net/2009/01/21/fairey-obama-and-fair-use/
I have comments on both threads, in which I agree that there’s no infringement. But “petty”? What’s petty about this? The photographer’s work was copied (Fairey admits to copying a photo, and it looks like this was the one) without any attribution and it’s being sold. I don’t think there’s infringement, but I don’t see anything petty about it. From what I’ve read, it’s not just the AP looking for money here, the photographer is also trying to protect his livelihood.
Also, I’m not sure the fair use claim is quite so clear.
Daniel J. Solove - February 5, 2009 at 2:27 pm
Bruce,
By petty, I mean that the AP has a weak claim that the value of the poster derives from the photo. Instead, it is really trying to grab the profits of somebody else’s labor, namely Fairey’s. My sense, at least, is that the market value of the poster derives almost entirely from Fairey’s efforts. The photo alone isn’t worth all that much. Of course, the photo was used in part to create the poster, but it is the attributes of the poster that people are interested in, not the photo.
I see this copyright claim not as an attempt of a photographer trying to protect his livelihood, but as an attempt to use copyright law to steal the value of Fairey’s creativity and labor. People are buying the poster because of what Fairey did to it. If the AP could prove that there was a robust demand for its photo and now it dried up because of the poster, then I’d feel more sympathy. But I don’t think that’s going on here. This is just opportunism. The poster is very valuable, and now the vultures are all coming in for their cut. That’s what copyright law seems to be all about these days. It seems almost impossible these days to produce a popular and valuable movie, book, art, etc. without somebody somewhere claiming some copyright issue. The law invites in the vultures.
Of course, I’m an outsider to all this, and my perspective on IP law is that of an outsider to the field. But for what it’s worth, I fail to see much social utility in having constant lawsuits like this. It strikes me as a pathology of copyright law, not a feature.
James Grimmelmann - February 5, 2009 at 2:43 pm
Mark: It’s unambiguous. Perhaps there’s only a 70% chance a court will reach the right result, but it’s still fair use.
Mark McKenna - February 5, 2009 at 6:23 pm
James -
I guess you have a lot clearer idea than I do about what fair use is supposed to do. I think it’s usually hard to know what the “right” result is in a given case. I usually have a general sense for whether I think the use at issue should be allowed, but I don’t know how much that sense depends on knowing what kinds of uses the fair use doctrine protects.
Bruce Boyden - February 5, 2009 at 6:50 pm
Dan, this is a bit of a weird debate because ultimately I agree with you that there shouldn’t be liability, but I think your cynical view of the motives of AP and Garcia here is totally unwarranted. It’s a really good shot of Obama. Garcia gets paid to take really good shots of people. To the extent someone else is taking Garcia’s work without permission and making money off of it, even if it doesn’t cut into Garcia’s ability to see this or future photos, that’s prima facie unfair.
E.g., if I plagiarize a law review article you wrote and then sell it to a textbook publisher, even if you are giving it away for free, you have an infringement claim against me, and rightly so. I would rise to your defense if someone accused you of being a pathological money-grubber trying to steal my creativity and labor (let’s say I edited it) in coming after me. Well, maybe *I* wouldn’t rise to your defense in this hypo, because we’re assuming I’m a jerk, but someone should.
Bruce Boyden - February 5, 2009 at 6:55 pm
That should have been “Garcia’s ability to *sell* this or future photos.” The internal spell checker strikes again.
Daniel J. Solove - February 5, 2009 at 8:37 pm
Bruce,
I think your plagiarism analogy doesn’t quite fit. The analogy I have in mind would be something more akin to this: I wrote a blog post about an issue and you wrote a law review article, using an argument I developed by elaborating upon it and developing it. Then I turned around and demanded co-authorship of your article.
I guess our dispute turns on our perception of how different the photo and poster are. My view is that the poster is significantly different — it is truly a transformative work. Yes, it was based on an underlying photo, but the value in the poster and the creativity in it are primarily those of Fairey. Now, if more elements of the photo were used, I might think differently, but I see the photo and poster as very different works. Kind of like Virgil’s Aeneid is to Homer’s Odyssey. Today, Homer would be suing Virgil for a copyright violation.
Bruce Boyden - February 5, 2009 at 10:44 pm
Dan, I’m not sure what’s left in your claim that the AP and Garcia are being “petty,” other than the fact that you don’t think they should win.
James Grimmelmann - February 5, 2009 at 10:49 pm
I should add that Fairey has a decent case that his poster isn’t even substantially similar to the photograph. Once you remove all the uncopyrightable elements of the photograph — e.g., Obama’s facial shape — and all the elements that Fairey didn’t copy — e.g., the focus — there’s not very much left. The similarity may be de minimis even before you get to fair use.
Daniel J. Solove - February 5, 2009 at 10:58 pm
Bruce — Maybe “petty” isn’t the right word. Perhaps “opportunistic.” My claim goes beyond the fact that the AP shouldn’t win. It goes to what I think is the motivation behind this suit. This isn’t a suit about a poor artist trying to protect his livelihood. It strikes me as a suit where the AP is sniffing the scent of money and filing a case that probably will lose (and should lose) but that will most likely result in the AP exacting some settlement money from Fairey just to make it all go away.
Ironically, I bet that Fairey’s poster — and the publicity from this case — is probably increasing the AP’s market for the photo! I can’t imagine a better publicity stunt to help bring attention to the photo than to file this case. Otherwise, it’s just one photo among the millions taken of Obama.
A Voice of Sanity - February 6, 2009 at 3:06 am
Was the photographer the only person afforded the opportunity to see Obama in this pose? Or were there other people there?
Steve - February 6, 2009 at 7:36 am
Fairey has a well documented history of plagiarism:
http://www.art-for-a-change.com/Obey/index.htm
Steve - February 6, 2009 at 8:19 am
A couple of other cases against Fairey:
http://www.brghtnghts.com/blog/?page_id=46
MAP - February 6, 2009 at 8:28 am
My own view is that the substantial similarity prong is not even met. I realize the image is readily recognizable, but my own view is that looking at Fairey’s work as a whole, it entirely transforms the image. Beyond that, I agree that it would be fair use, although I think Mark is correct that “fair use” and “unambiguous” really do not even belong in the same sentence. I also agree that the lawsuit by AP is petty, but then I have a pretty
Alan - February 6, 2009 at 9:10 am
The poster is fairly clearly to me derivative not transformative and therefore a copyright violation. You can see in the poster the exact same image as the photograph, with only the colors and contrast altered, and certainly not altered enough to make it unrecognizable. Could I take a movie, digitally change the shading and republish it without permission? How about digitally speeding up a song? Its not even a close call to me.
The poster also makes use of the entire photo, which goes well beyond fair use, and uses it in a way that fair use does not apply–to enhance the stature of himself and the subject of the photo, and to make money selling signed copies of the image. Is it fair use for a company to reprint a favorable article or review on its website, without permission, in order to enhance its own stature? I don’t think so.
The best defense the artist may have is laches, that the copyright holder knew of the infringement but did nothing to stop it, waiving its right to later complain. That would not however stop it from complaining about recent commercial use (selling signed copies on eBay).
In the end, this is going to be an academic question, because the artist did something he should not have done–misappropriated another person’s work–and he is going to have to settle up. That will happen out of court.
professordarkheart - February 6, 2009 at 9:30 am
Bruce,
re: “From what I’ve read, it’s not just the AP looking for money here, the photographer is also trying to protect his livelihood.”
I may not have all the info, but the reports I’ve seen say that Garcia was a freelancer on assignment. That would mean he’s been paid a licensing fee and relinquished copyright to the AP; he wouldn’t stand to gain anything from the AP’s lawsuit. That has no bearing on the legal merits of the case, of course, but this doesn’t seem to me to be a case of “poor working photographer seeking his due” so much as “giant hulking corporation seeking payout based on licensed photo for which poor working photographer was certainly underpaid in the first place.”
professordarkheart - February 6, 2009 at 9:49 am
@ Alan 9.10 AM
You write: “The poster also makes use of the entire photo, which goes well beyond fair use, and uses it in a way that fair use does not apply–to enhance the stature of himself and the subject of the photo, and to make money selling signed copies of the image.”
Your objections don’t in any way preclude a claim of fair use. “Fair use” is a defense that need be raised only after the plaintiff has established that there are grounds to bring a copyright infringement suit. Using most or all of a work, or using it for commercial gain may constitute grounds for a suit, but neither necessarily trumps a fair use defense, which has been used successfully to defend the appropriation of entire images (e.g. thumbnails to index copyrighted images) and to defend purely commercial enterprises (e.g. parody). Moreover, your description of Fairey “enhancing the stature of the subject of the photo” is arguably in itself a description of a transformative use, defined in Campbell (1994) as “altering the original with new expression, meaning, or message.”
Gary - February 6, 2009 at 10:07 am
Looks to me like the guy scanned the photo, opened it in Photoshop, and tweaked it. Definitely a copyright violation.
Ted - February 6, 2009 at 10:13 am
No one has yet commented on the part of the poster which is indisputably different: The word “HOPE” at the bottom. Isn’t that a very large part of what gives this poster its iconic value? Does copyright law take that into account?
George - February 6, 2009 at 10:43 am
Concur with Grimmelmann, likely no substantial similarity, and, even if so, protected as fair use. Maybe people unfamiliar with copyright law don’t understand that “facts” are not copyrightable, e.g., obama’s face, the grand canyon. Beyond that, the different medium Fairey uses clearly transforms the artistic content of the original photo – the focus, the shading and coloration. It would be hard to argue Fairey displayed “no level of input” or “creative spark” in making the work. If it even got to the fair use stage, it seems tough for the AP to argue that people were using Fairey’s image as a sub for their photo or that the market for their photo was really depressed by Fairey’s work. If anything it seems the opposite. Seems like a court would also weigh the fact that it was “just” a news photo and not a more typical piece of “art” against the AP, but of course that’s not dispositive.
Alan - February 6, 2009 at 10:43 am
Don’t twist my words, Professor. I was not referring to color enhancements, I was referring to the use of the photo in a manner that was closer to commercial than academic: to market or sell a person–in this case, a candidate for office. That is not “fair use”. Look at all of the artists who complained about McCain misappropriating their music for use in his campaign. Is that now fair use? Can political candidates now take any music, photos, arts, literature or other writings they want and use them in their campaigns, without permission of the copyright holders? Is that your idea of fair use? I don’t think that will fly with about 50% of the population even in this case, and when you set aside the partisan biases, it won’t fly with any percent.
Barry Kelly - February 6, 2009 at 10:56 am
Something that isn’t immediately obvious, but important to the casual reader, is the hidden agendas of some of the commenters here.
“Gary” @ 10:07, judging by his link, is a blatant partisan – a self-styled opponent of “Demofiends”, supposedly trying to turn the US into “France lite”. Thus, his perspectives on the narrow IP issue here must be highly suspect.
“Bruce Boyden” is a lawyer and assistant professor at law. More importantly, his current “research interest” is in the “copyrightability of video game displays”. I don’t know what that means precisely, but I’m willing to conjecture: I’ll guess it doesn’t refer to the enclosures used for arcade video games, but rather the user interfaces presented in-game. Given that video games are a hit-driven business, an interest in copyrighting the user interface – over and above the game itself – seems to be trying to extract more rents out of mere rote production of video games, and thereby limiting innovation and hugely increasing production costs (mainly lawyer costs) in the sector. It would appear to put him on the side of patent trolls and similar legal parasites, who opportunistically try to profit through the courts from incidental and accidental similarities in the work of disparate producers. That would make his thoughts on this topic suspect as to impartiality, but nonetheless useful as a foil.
As to the topic at hand, I think the negative PR created for AP exceeds any value that could ever be achieved in a court of law. I think sanity will eventually prevail at AP and they’ll drop it.
And as to the fair use in principle: the original Fairey work is now in a museum, from what I understand. I’m pretty sure the original photo isn’t. Thus simply as a cultural object, there is no comparison to be made between the two. The difference is the value added, and in my opinion it is vastly more than that of the original photo.
professordarkheart - February 6, 2009 at 10:58 am
Alan,
“Can political candidates now take any music, photos, arts, literature or other writings they want and use them in their campaigns, without permission of the copyright holders?”
Don’t twist mine either, please. I never suggested anything of the sort. What I said was that whether or not something is used for commercial purposes is not dispositive of whether or not it is “fair use” (though it is one of the factors in deciding). For the record, I don’t think the artists who complained about McCain using their music at rallies had a legal case against him, or that Peter, Paul, and Mary would have a case against the “Barack the Magic Negro” parody song; I’m not the one who brought political bias into the discussion. It is possible to have an opinion about matters in the political sphere that is nonetheless based on consistent legal principles.
professordarkheart - February 6, 2009 at 11:10 am
No one has yet commented on the part of the poster which is indisputably different: The word “HOPE” at the bottom. Isn’t that a very large part of what gives this poster its iconic value? Does copyright law take that into account?
Thanks, Ted, and yes, of course the law takes it into account. The word (including its role in the overall effect of the poster) is part of what links the image to visual styles like stenciled street art on the one hand and to Soviet Constructivist imagery on the other. This reframing of a fairly generic portrait composition in a wider art-historical context is part of what I would argue makes Fairey’s use of the photo “transformative.” You could conceivably argue that it isn’t transformative enough to constitute fair use, but to argue that it’s a copyright violation because the original image is recognizable is to argue in either bad faith or ignorance of the relevant case law.
Alan - February 6, 2009 at 11:27 am
FYI, the second revision of the poster is now hanging in the “new works” hallway of the Smithsonian Institution’s National Portrait Gallery in Washington, D.C. The first revision had the word “Progress” not “Hope”. The poster is not far from a portrait of Laura Bush, so just because it is in a museum does not make it art. I can say however that I went to see it last weekend and the prints do not do it justice–it is a very nice work of art, with some great detail; for example, the canvas appears to be old wallpaper, with news print pasted over the top to create shading. Needless to say, I was extremely disappointed to learn this week that the portrait was created by ripping off a photographer’s work without seeking his permission. I hope Fairey is now able to do a nice Michael Phelps and apologize, admit he was wrong, pay up, and then we can all move on.
A.J. Sutter - February 6, 2009 at 11:52 am
I concur with James G and George on the the lack of substantial similarity. Apropos of Daniel’s reference to the angle of Obama’s head, it’s been rotated in the poster. Also, the positioning of the head relative to the edge (cropping) is entirely different from the photo, and the American flag has been omitted, to say nothing of the color effects in the background and the Presidential face. So I agree that the lack of substantial similarity might (or ought) knock out the claim before the fair use defense is reached.
On the fair use claim (which presupposes that the work would otherwise infringe), apropos of Alan’s comments: I’m not a litigator, but as I recall commercial use doesn’t negative fair use. It just shifts the burden of proof to defendant, who has to show that market for the original work hasn’t harmed the market for the original work (I’m not sure what’s the appropriate qualifier is here, e.g. “substantial” harm, etc.). I can imagine many newspapers, magazines etc. wanting to run the original photo, and I can’t imagine any of them substituting the poster in its place, so I expect Fairley wouldn’t have a tough row to hoe, should things get that far.
Alan - February 6, 2009 at 12:28 pm
Given the divergence of opinion, maybe it would be good if Fairey turns this into a test case. He will lose, but it would be a good lesson to anyone else who thinks they can rip off someone else’s work using Photoshop and a little digital processing.
steve - February 6, 2009 at 12:33 pm
alan, you clearly aren’t up on your post-war art history as it relates to this subject. see andy warhol, jasper johns, robert rauschenberg to name a few.
professordarkheart - February 6, 2009 at 12:49 pm
I hope Fairey is now able to do a nice Michael Phelps and apologize, admit he was wrong, pay up, and then we can all move on.
I’m ready to move on right now, Alan, having finally found a point of agreement with you. I absolutely think that Fairey is under the exact same obligation that Phelps was to apologize to me for a non-story pushed by our ADD-afflicted national media.
Colleen - February 6, 2009 at 1:00 pm
If I paint someone am I obligated to go through every AP photo ever taken and make sure it isn’t similar? And how can it not be? I bet Obama had literally a million photographs taken of him since becoming Senator, then candidate, then nominee, then President Elect, now president. I am sure every angel, distance, vantage and profile has been shot by someone. I mean, it’s a close up of the worlds most famous man.
I don’t think the poster is all that similar to the photo. Closer cropped face, different head tilt, Obama pin, hope, change in colors, head raised up in the visual space of the image and no flag in the background. Not to mention, how can you say you own the image of someone else’s face? I think Fairly could have used Obama’s DMV photo and derived much the same image. That is just how the guy looks.
But I think the best argument is why wait until now? This image came out before the convention last summer. Didn’t they let it go on for a long time before complaining? It was almost like they were letting it go along until it got valuable, then once Fairly made it valuable now they want to take it.
Alan - February 6, 2009 at 1:06 pm
Ah yes, Andy Warhol, Jasper Johns and Robert Rauschenberg, who made posters for political candidates by photoshopping a photograph taken by someone else.
steve - February 6, 2009 at 1:15 pm
no, andy warhol, jasper johns and robert rauschenberg who directly used actual images appropriated from mass media with no alterations whatsoever (other than changes in color or combinations with other appropriated images). these were often silkscreened directly onto the canvas. so what’s your point? is photoshop the differentiator here? again, i suggest you look into the history before presuming you are an expert on the subject. the law and precedent aren’t based on your opinion of what constitutes art.
Bruce Boyden - February 6, 2009 at 1:18 pm
Steve, what cases are you thinking of?
Alan - February 6, 2009 at 1:18 pm
@Colleen: If you take a photograph, you own the copyright. The subject matter is irrelevant (unless the subject itself is a copyrighted work). The photographer does not own every image of Obama’s face, but he does own the copyright to the one he took, and that is the photo Fairey used in the poster.
Alan - February 6, 2009 at 1:29 pm
Show me one example of a similar work by Warhol, Johns, or Rauschenberg, that was created to promote a political candidate, and that survived a copyright challenge.
steve - February 6, 2009 at 1:39 pm
alan, is your point that it’s a political poster and that’s how it’s different from warhol? you said yourself that the original is hanging in the smithsonian which i think elevates it to a level above poster. and i can buy warhol posters all day that used an appropriated image as source material in the original (e.g. marilyn monroe). perhaps i am missing a stipulation that excludes all appropriation except those used for political posters?
steve - February 6, 2009 at 2:16 pm
and i realize that copyright law became more stringent after 1976, but warhol was still making work after then. if this case were so cut and dry (as alan suggests), i would think that someone would have taken the warhol foundation, jeff koons or julian schnabel to the cleaners. i am not a copyright expert, but i know art history and it is full of people doing this.
socktopi - February 6, 2009 at 2:56 pm
“Show me one example of a similar work by Warhol, Johns, or Rauschenberg, that was created to promote a political candidate, and that survived a copyright challenge.”
It’s called Google, try using it sometime:
http://latimesblogs.latimes.com/culturemonster/2008/11/warhol-nixon.html
“Andy Warhol’s “Vote McGovern” ranks as America’s greatest modern political poster. Made for a 1972 benefit auction, it epitomizes the artist’s gift for fusing artistic traditions both high and low. ”
The poster in question being a recolored version of an unaltered photograph of Nixon.
Fairey’s poster on the other hand is a hand-drawn painting based on a cropped piece from a larger picture of Obama (the full photo shows Obama sitting at a table next to someone else), with completely different colors and a political message added (“Hope), then given away for free. (The selling of the image on t-shirts et all is being done without Fairey’s profit or consent)
For over a year – the photo his poster was based on wasn’t even identified, with a large number of people attempting to find the original. And the photographer is on record as apporvinf of Fairey’s painting.
This is unambiguous fair-use, and the AP’s case is completely without merit.
Bruce Boyden - February 6, 2009 at 3:21 pm
I think the last several commenters need to get a little less snarky. The answers are not entirely clear. For instance, Koons lost a copyright infringement suit over his team’s creation of a sculpture from a photo: Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). It’s not clear how much weight Rogers has after Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), but it hasn’t been overruled.
I don’t think you can infer much of anything from the absence of lawsuits against earlier artists.
Allen - February 6, 2009 at 3:22 pm
This is fair use. 100%.
1. the purpose and character of the use -
the photo documents a public figure at an event; the poster illustrates that same public figure with exaggerated colors and graphic elements that dramatize the figure and elevate his image
2. the nature of the copyrighted work -
the copyrighted work is a photograph that anyone in the vicinity of Obama in the last two years could have taken; it was taken in public, of a public figure, at a public event, from a common perspective
3. the amount and substantiality of the portion taken – the background is different, the tie is different, the colors are different, the style is different, the medium is different, the angle of the head is different; the only things that are the same are the subject (Obama), and the perspective from which he is being viewed
4. the effect of the use upon the potential market – if someone wants a stylized illustration of Obama, they would not buy the photo (or any photo) instead; the illustration is unique and iconographic, the photograph is not
Alan - February 6, 2009 at 3:46 pm
The photographer earns his livelihood from attempting to capture public figures in compelling poses. He clearly accomplished that with this photograph. The photographer sells his photos to others who might want to use them for any purpose, including the purpose of making a poster, whether stylized or not. Fairley took the photo and used it for that purpose. It clearly had value for that purpose, otherwise Fairley would not have used it. For Fairley to misappropriate a photographer’s work for his own use, without permission or compensation, is clearly not “fair use”.
kim - February 6, 2009 at 4:32 pm
Haven’t had a chance to read all the comments, but there’s a larger context here. Others have mentioned Warhol – but artists have been using photographs as source material since the invention of photography in the mid 19th century. Painters were some of the first to embrace the new technology. A large percentage of all realist art painted in the last century and a half is based, all or part, on photographs. There’s even a stylistic movement named for the practice: Photorealism – yes, most of the Photorealist painters used photos as visual sources, and they weren’t using exclusively their own photos, far from it. Just yesterday, I was having an (unrelated) discussion with a colleague about Degas’ ubiquitous use of photographs for his paintings and other work. It’s absolutely commonplace for painters to use photos in this way. Fairey hardly reinvented the wheel. So why is he suddenly excoriated for a practice that is so commonplace, and, by the way, long predates the copyright laws in question too. There’s something weird about this whole fracas – how have painters in the past been judged (or not) for using photographs as source material for other artworks?
Alan - February 6, 2009 at 4:42 pm
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html#2
sophia - February 6, 2009 at 5:07 pm
Doesn’t the original photo have George Clooney in it?
http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/found_again_the_poster_source.html
Liz - February 6, 2009 at 5:23 pm
in response to Alan’s comments at 3:46 – i would completely agree with you IF Garcia’s photo was a creative expression that he had planned to sell as a work of art OR if Fairey’s use lessened the income that Garcia would derive from the photo BUT:
1. It’s the AP is after Fairey, not Garcia. Which means that as a hired contractor by AP to cover the Darfur conference, Garcia (even as the photographer) does not own the rights and could not resell it to another buyer. For example, movie posters that feature a film still – the cameraman is not getting rich off of the merchandise – the studio is.
2. Garcia was unlikely to stand to make more money from the photo after it had been published by AP. Therefore Fairey did not ‘rob’ him.
3. In fact, who knew Manny Garcia’s name until the photo became the creative point of departure that then became an icon? No offense Manny, but hopefully this publicity will get you more future dough from AP or other peeps.
My vote’s on Fair Use. Its a shame that the only people who are making money off this ridiculous case are the lawyers. Even if AP wins, Garcia’s not going to see a dime.
Frank - February 6, 2009 at 5:46 pm
I haven’t read all the comments, but one thing to note here is that we don’t have to worry about the photog getting the copyright in all images that have that Obama expression. He can only press against a copyright suit against someone who has copied *his image.” Proof of opyright infringement is based on a sliding scale of access and similarity. IF there’s striking similarity, you don’t need to do much to prove access; if there’s less similarity, you do need to prove access. Copyright sounds in tort, even though it is a form of intellectual property.
Here, Fairey confessed to having accessed the photo, so that question does not arise.
Alan - February 6, 2009 at 6:51 pm
I would completely agree with you IF … Fairey’s use lessened the income that Garcia would derive from the photo
It decreased the income Garcia was entitled to received FROM FAIREY. Fairey paid him nothing to use it.
Joe Miller - February 6, 2009 at 6:59 pm
This is a terrific comment thread. One thing people seem to be assuming is that this particular photo – the one taken by Garcia – contains copyrightable expression. Does it? I think not.
“Originality,” the Supreme Court has held, requires both that the expression for which protection is sought (a) not have been copied from someone else (let’s assume that’s satisfied here) and (b) have the necessary minimum level of creativity.
I think Garcia’s utterly banal, pedestrian photo flunks the second part of the test. To the extent it is good (and it is a nicely composed snapshot), it is utterly conventional. It’s the snapshot equivalent of the white pages – and they’re not copyrightable (because they’re not “original”) either.
(Having said all that, I concede that most copyright law folks don’t agree with me about where the creativity threshold is for copyrightability. Most folks think it’s quite a bit lower than I think it should be.)
Liz - February 6, 2009 at 7:34 pm
Alan – Garcia didn’t own it – AP did. Garcia’s not even suing Fairey.
Alan - February 6, 2009 at 7:59 pm
@Liz: The fact that the AP was assigned his copyright is a distinction without a difference. If the photos he took had no copyright, or if the copyright had no value because everyone could use them for free, then he would not get paid and would be out of a job. We could then just go to Flickr for all our photos, because there would be no professional photographers anymore, no AP, no newspapers, no magazines.
bill - February 6, 2009 at 8:49 pm
This is fair use.
Also, Solove is right to impugn AP’s motives here. Realize that AP has had a pretty GOP (and anti-Obama) slant. They may be trying not only to get $$, but also to tarnish this poster and maybe even reduce the spread of the iconic image.
A.J. Sutter - February 6, 2009 at 9:58 pm
Thanks, Joe, for bringing this back to the composition. As Dan mentioned in the original post, the composition of the photo is the possibly original element. The composition of the poster (sc., the artwork, though no doubt also true of Dan) is entirely different from that of the photo.
One way in which the participants in this thread have been talking past each other that while most people (and Dan’s original question) are focused on infringement, Alan repeatedly refers to “misappropriation”. I’m not a scholar on this matter, but this 2005 paper by Ryan Holte suggests that state claims of misappropriation as to copyrightable subject matter have been pre-empted, although this 2002 paper by Daniel Gervais seems to suggest, @ 954n.27, that the point is less clear.
Even assuming that a misappropriation claim were available here (a state law claim, BTW), David Barnes has some pertinent comments about IP misappropriation in this 2007 paper: “The simple view of misappropriation theory rests on the premise that persons should not be able to appropriate the benefits of another’s investment without similar investment of their own. … [But] [r]evisiting the Supreme Court’s opinion [in INS v. AP, 248 U.S. 215 (1918)], however, reveals a more complex misappropriation doctrine. … The ensuing injunction did not prevent all free riding. It prevented only free riding that ‘interfere[d] with the normal operation of the complainant’s business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not.’” (Barnes @4-5.)
Barnes summarizes this as follows: “There are two views of misappropriation. The simple view prohibits one actor from free-riding on the activity of the other. The nuanced view prohibits one actor from free-riding on the activity of the other if doing so [would] so interfere with the incentive to engage in creative activity that society would be [sic] suffer. Many courts’ rulings in Internet initial interest confusion cases reflect the simple view. Intellectual property theory and trademark law generally reflect the more nuanced view.” (Id. @5-6.)
As long as the “investment” involved in creating the poster was similar to that involved in taking the photo, there would seem not to be misappropriation even under the “simple” view. AP’s likellihood of meeting Barnes’s “nuanced” view is even less likely. BTW INS v. AP related to news, not to a photo, though it’s a nice historical echo that AP was also the plaintiff in that case.
Bruce Boyden - February 6, 2009 at 11:57 pm
FYI, Garcia (a) believes he still retains the copyright in the image, not AP, and (b) is “concerned” about some uses but seems not to have reached a conclusion that Fairey’s use is necessarily improper.
http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html
I’m not sure where “temporary hire” would fit in under the work-for-hire doctrine, so without more facts it’s hard to say who actually has the copyright in the photo.
Venkat - February 7, 2009 at 11:52 am
Great comment thread.
It’s funny that the fact that AP may not necessarily own the photo only came out later. They should have probably buttoned up that issue first.
To the folks that say the picture is run of the mill…obviously not, why else would SF have chosen it.
Tough issue – this is an example of why being a lawyer is fun!
RioRico - February 7, 2009 at 4:48 pm
“Plagiarize!
Let no-one else’s work EVADE your eyes!
Remember why the good lord MADE your eyes!
And plagiarize, plagiarize, plagiarize!
(But be certain always to call it, RESEARCH!)”
–Tom Lehrer
I seem to recall various artists saying that ALL art is plagiarism. Certainly much visual art at least refers to other visual art. If I publish a photo of stacks of Campbells soup cans, am I plagiarizing Campbells, or Warhol, or anyone? How about if the objects in my photo only RESEMBLE such cans, or Warhol’s renditions thereof?
IMHO, if a disputed work is not a fairly EXACT copy of an existing work, the IP arguments become absurd. Some time back, a friend hand-made a good needlepoint replica of a famous BYTE magazine cover of a viking ship with a floppy-disk sail. Did she copy? Yes. Did she unlawfully plagiarize? I think not. (If, as in Fairey’s case, someone else photographed her rendition and sold posters and t-shirts, is she responsible?) Nobody would mistake her needlework with the printed magazine cover; nobody will mistake Fairey’s painting for the Garcia photo.
Suppose I paint a sailing ship onto a printed nautical chart, or an Obama portrait onto a newspaper page. Have I illegally sampled the chart or newspaper? Suppose I generate an ASCII art image of grinning Harry Truman holding up the newspaper with the DEWEY WINS headline. Did that original photo infringe on the newspaper’s copyright? Who does my image infringe or damage?
Alan - February 7, 2009 at 4:58 pm
The answer is pretty much yes on all counts; those are all copyright violations (assuming the originals were not so old that their copyrights had lapsed).
A.J. Sutter - February 8, 2009 at 12:29 am
Alan, how can you be so sure that they are “violations” without more context? What if RioRico’s works are satirical? Or what if they are fair use? (See 17 USC 107: “the fair use of a copyrighted work … is not an infringement of copyright” (emphasis added), i.e. fair use isn’t merely something that mitigates liability for infringement, it is constitutive of the nature of the act.)
Gail - February 18, 2009 at 6:35 pm
If Fairey hadn’t “painted” the poster and created a new work, would Garcia’s photo have even been memorable or perhaps worthy of copyright?
stewie roberts - February 28, 2009 at 8:01 pm
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/
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