1. eric - February 18, 2009 at 8:51 am

   In the aftermath of the photo/poster controversy, I’ve noticed, most recently at the White House press conference, that Obama frequently holds his head in that tilted posture (which seems to convey, whether deliberately or not, attentiveness and thoughtfulness). So I suspect there are plenty of other photos with a similar pose.

2. krs - February 18, 2009 at 9:33 am

   If I were the AP, I wouldn’t have published the photo that was taken when there was a giant arrow cursor on the camera lens.

3. Alan - February 18, 2009 at 11:14 am

   This is one of the most dramatic illustrations I have seen of Fairey’s copyright violation. Fairey’s poster took the original shading of Garcia’s photograph and turned it into four distinct colors: white, light grey, red and dark grey. The white parts of Fairey’s poster correspond the the best lit areas of Obama’s face; the light grey corresponds to the areas that are one step down in illumination,; thered another step down; and the dark grey, the least illuminated portions. In other words, there is a clear correspondence between the illumination in Garcia’s photo and the four colors in Fairey’s poster. If Fairey had preferred the lighting in Jurvetson’s photo, he could have used that instead, in which case, the coloration in his poster would have looked dramatically different. The fact is though that Fairey preferred shading captured by Garcia in his photo and that is why he used it. Furthermore, there can be no doubt that the illumination captured by Garcia is one of the creative elements of his photo to which he holds the copyright. Fairey’s use of this same lightening pattern, even though he changed the colors, is a clear violation of Garcia’s copyright.

4. Tim - February 18, 2009 at 12:52 pm

   I have a detailed analysis over at my blog.

   I think Fairey will win this case. Though the above analysis is one of the better arguments I’ve seen against one of the prongs in the Fair Use analysis.

   I believe

   A- Fairey only helped the photo’s market

   B- Fairey transformed the photo into a new work – that both didn’t look the same and also sent a completely different message and did a completely different thing – the photo was meant to show the newsworthy fact that clooney and obama held a presser, while the Fairey work was a political message displaying the characteristics the Obama campaign wished to display of leadership, hope, wisdom and change. It had a strong message that went well above and beyond what the photo did.

   C- It didn’t necessarily take a substantial portion of the original photo…the above version of the AP photo is not the entire thing, the real photo contains obama and clooney from the waist up…Fairey only used a small portion of that that wasn’t necessarily the essence of the original photo.

   D- Fairey didn’t profit from his art.

   This all seems to favor Fairey in my opinion.

5. Bruce Boyden - February 18, 2009 at 12:53 pm

   I’ve got a series on this case going here:

   http://law.marquette.edu/facultyblog/2009/02/14/the-obama-hope-poster-case-a-copyright-catch-22/

   I’ll get to substantial similarity and fair use, but I’m saving the best for last.

6. Alan - February 18, 2009 at 1:13 pm

   A- Fairey did nothing to help the market for the photo; what Fairey did instead is to use the photo without licensing it, thereby depriving Garcia of the licensing fees he was entitled to receive from Garcia.

   B- Fairey did not transform the photo into a new work. The photo is clearly visible in Fairey’s poster. If this theory were to be upheld, does that mean I can now take every Hollywood major motion picture, change the colors and re-release them? Furthermore, Garcia took the photo intending to capture characteristics of Obama; Fairey made the poster with the same purpose. Garcia also took the photo intended to use it not only for news, but for any legitimate usage, including a poster. This is the same usage that Fairey made of the photo.

   C- Fairey took a substantial portion of the photo (even assuming there was more, which has not yet been demonstrated to me).

   D- Fairey has been profiting substantially from the poster, for example, by selling signed copied on eBay. He has also used it to enhance his reputation, similar to advertising. The poster was also used to “advertise” or market Obama. Can I now take any copyrighted material I want and use it to advertise myself, a product or a third person, as long as I don’t sell the advertisement?

7. Alan - February 18, 2009 at 1:18 pm

   @Bruce: I look forward to reading the rest of your analysis.

8. Tim - February 18, 2009 at 1:24 pm

   Fairey did nothing to help the market for the photo So there was a large demand for this photo prior to the Fairey work? I don’t think so. Sure they could sell the photo (As the AP is the one with the copyright) but who would buy?

   ,i>If this theory were to be upheld, does that mean I can now take every Hollywood major motion picture, change the colors and re-release them?,/i> Of course not, but it would be taken into consideration and weigh into your favor if you did.

   Fairey made the poster with the same purpose Wrong. He in fact had far greater purposes…he has said many times the things he wished to portray and it wasn’t just a likeness of Obama.

   Fairey took a substantial portion of the photo (even assuming there was more, which has not yet been demonstrated to me) So perhaps instead of opining before leaving a cloud of ignorance you should find out. My blog has the entire photo – and it’s not a substantial portion of the photo pysically or for it’s purposes.

   by selling signed copied on eBay. He has also used it to enhance his reputation, similar to advertising. He didn’t keep any of those sales proceeds…he put that money into creating more posters for the campaign. He in fact has not profited from the post directly at all. And indirect benefits from use doesn’t matter. Under that assumption a teacher benefits from using To Kill A Mockingbird (or any book) because that makes them a good teacher and they profit later from it in salary.

9. Alan - February 18, 2009 at 1:44 pm

   Indirect benefit from use don’t matter? A novel argument, at best. I am heartened to learn that I can now use any copyrighted material I want, as long as my benefits are indirect.

10. Alan - February 18, 2009 at 1:52 pm

    P.S., The Clooney-Obama photo shown in your blog is a different photo. I needed to look no further than the fact that both Obama’s face and the flag are in-focus in the former, while the flag is out-of-focus in the photo that was infringed. The stars on the flag are also in different positions. But please feel free to make a closer comparison to satisfy yourself. I guess we now know who is actually guilty of opining from a cloud of ignorance.

11. Tim - February 18, 2009 at 1:53 pm

    I am heartened to learn that I can now use any copyrighted material I want, as long as my benefits are indirect.

    You seem to be trapped in the habit of taking every single argument someone makes and deride it as the whole argument instead of what it is, part of the analysis.

    And it’s not a novel argument. The question at the prong of the Fair Use analysis isn’t even did you profit from it, it’s whether it was for commercial purposes or not….and it clearly wasn’t…as he didn’t profit and used all the proceeds to contribute further posters FOR FREE to the Obama Campaign. It was clearly, and unarguably not a commercial purpose.

    Indirect benefits (defined as say reputational gain or other opportunities opened because of fame) don’t matter because if a “not-for-profit” anything does a good job, they likely have benefit in the future. Like I said…a teacher who uses any quality copyrightable book in a lesson plan can benefit later from being a good teacher who uses good resources in the form of a better salary….but that doesn’t make it a commercial transaction.

12. Tim - February 18, 2009 at 2:06 pm

    I’ll give you after a closer examination I am wrong about them being the same photo…and I will alter that portion of my blog post…I have to say it’s my fault for not carefully examining but I will say in my defense, that is something I read elsewhere when this story first happened a few months ago.

    Despite that minor setback for my arugment, it still stands…the amount taken portion of the analysis does not necessarily decide anything and in fact might be one of the least important factors.

    With that said, good job…you found a mistake I made and I’m glad when they are pointed out so I don’t confuse anyone else. I apologize for resorting to immature tactics.

13. Alan - February 18, 2009 at 2:09 pm

    @Tim: due to your lack of civility I will not discourse with you further. Some day you may make a mediocre lawyer. Good luck.

14. Alan - February 18, 2009 at 2:14 pm

    P.S., a teacher does not run books through the photocopy machine; they pay for their use, just as Fairey was obligated to pay for his use of Garcia’s photo. Yes, you can have indirect benefits from your use, provided you paid for it in the first place.

15. Tim - February 18, 2009 at 2:23 pm

    they pay for their use, just as Fairey was obligated to pay for his use of Garcia’s photo. They don’t always, e.g. internet printout…and Fairey didn’t put it through a photocopy machine, while often teachers will hand out exact copies of parts of things.

    As far as indirect benefits making something commercial…how do you measure that? Fairey has a large background in art, and has been rather famous for years…how is that more or less responsible for any current success? It is an impossible thing to measure. Not to mention I haven’t seen anywhere in my readings how reputational gain can be a commerical transaction…if there is law that says that, i’d be happy to review it.

    And I apologized for my lack of civility…I got annoyed because your analysis seemed directly aimed at me instead of an overall analysis. It was wrong. I guess it called for you lack of civility…but I didn’t get personal, I’m sure you are a mediocre something right now.

16. A.W. - February 19, 2009 at 9:58 am

    The poster-maker should win, but even if she wins, she loses.

    I have said this for a long time. We will not have sanity in our legal system until we have loser pays. But the AP can come up with this silly suit, supposedly suing because it claims a picture of an utterly public figure in a basic pose is copyrighted? Its crap.

    But these lawyers can run up their legal fees and bully this “little person.” Its a shame. And it shouldn’t be allowed to happen. But if they had to pay her legal fees in the end, they might not sue in the first place.

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