http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/

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?

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!

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.

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.

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.

“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.)

It decreased the income Garcia was entitled to received FROM FAIREY. Fairey paid him nothing to use it.

Here, Fairey confessed to having accessed the photo, so that question does not arise.

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.

http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/found_again_the_poster_source.html

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