Or drop the Obama since Garcia is not the official whitehouse photographer, [nppa.org] which might be construed as the Obama Photographer because the whitehouse photographer mostly photographs the president in interesting places meeting interesting people.
by Anonymous Coward
on Monday July 13, @06:20AM (#28674333)
We really did ourselves in with this election I'm afraid.
With this election!? You americans are some severely diluted people. For the past 8 years your ex president helped your nation gain one of the worst reputations in the world, and you honestly think that now you've fucked up? The next time a european (or a piece of "eurotrash" as you so elaborately call us) flips you the finger for just being american, please don't be surprised. It only makes you look even more embarassing since it merely proves your cluelessness of just what the fuck the world thinks.
Actually, then it'd be downright confusing -- photo says "You're both wrong"? Though "photographer" would have been much better than a made-up abbreviation. On the other hand, "photog" abbreviation has apparently been around since about 1906...
The Internet, of course. Maybe you've heard of Vimeo, or Youtube? Plenty of pictures with voices, hell some are just still pictures with music playing!
Actually, it is highly relevant for many of us web geeks, due to the tangled mess that copyright and inspiration versus derivative works is. In an indirect way, this could influence things like source code, where a company sues a smaller company for copyright infringement, and then the coder who wrote the code in the first place steps in, claiming that the supposed copyright holder only licensed the code from him and didn't get full copy rights.
I personally think this case ought to go to Mr. Fairey, since h
Dude, have you seen the photo [popcrunch.com]? It's actually out of context (if you see the actual video), but hilarious. If it was Bush, everyone would be hamming it up. Obama's the president, and with that comes our right as Americans to poke fun at him on a regular basis. There's nothing unique about him that exempts him from that. Also, your comment indicates presumptuousness - how to you know syousef is conservative? Also, what's up with being Anonymous Coward? Are you that ashamed of your political ideals?
I've seen the video, and while there's the possibility that he could have been looking at something else, why should he? Seriously, any sane man would definitely be checking that out. I don't care if I were the king of the universe, I would still be giving that at least a twice over. I don't care if you think it's immoral, inappropriate, or just plain wrong, it's normal male behavior. I don't care if that makes us pigs or not, the only way you couldn't at least toss a casual glance at that either means you're inhuman or not interested.
If you watch the video you can tell that Sarkozy is definitely checking that out and for the most part his country could probably give two shits less. If nothing else, that picture tells me that Obama is an average Joe, at least on some level. He may not by the president people want to have a beer with, but I'd stare at some hot ass with him.
If anyone thinks this is immoral or inappropriate, go fuck yourself. Seriously, go fuck yourself. You're the same dipshit who wasted time debating whether or not Clinton was getting some side action. You're worrying about the wrong things.
by Anonymous Coward
on Sunday July 12, @05:57PM (#28670593)
ABC posted a video of the whole event, he is not checking her out. Or at least, his head does not track her. He's turning around to offer an arm to the woman behind him to help her down the stairs.
Sarkoszy, on the other hand, stares at her ass for a good 10 seconds.
I would assume he's referring to the licenses under which some software is published and the view of some that open source software must be given away and that those who write it are unable to reap a profit from such work.
"Photog" was to fit within the space limitations of Slashdot headline requirements. And "litho" was the word used in TechDirt; people use the term "litho" all the time to refer to lithographs.
So, lets say that this isn't Obama, since the personality and timeliness of the subject appear to be clouding the issue. I'm presuming that the timliness of an image, since the copyright lasts for over a century, isn't salient (someone will doubtless correct me if I'm wrong).
Let's say this is the picture of the Hellers Bakery. Let's say it's a photo of a street flower vendor, and someone takes an anonymous photo off the net and decides to base a work of art on it. It might look like this http://www.josephcraigenglish.com/SidewalkFlowers.jpg [josephcraigenglish.com] and the artist would be required to create the hundred-plus silk screens and choose the colors to create a particular mood. How about if it were more generic? Say, a photo of the Capitol, posterized down to 8 colors with a red-white-and-blue sky?
Having seen the photo and the print for the first time today (but having hear about it previously), I'm calling bullshit on the AP and Garcia. Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.
I fear that the court will rule in favor or either the AP or Garcia. If they do, it will be just one more proof that the system is broken, and is stifling rather than promoting and enabling.
Sorry 'bout the Heller's Bakery line...I forgot to delete it when I chose another JCE print. FWIW, he does very nice work, and they're a bit of fun when you want to add color to a room. It's a bonus if you're from the DC area and know the spots he likes to take as subjects.
One other thing. If someone takes a picture of me and only me, shouldn't I have some say in what happens to the picture? I know that there have been instances where car companies have stopped fan made calenders from being distributed (i forget the case law as to who won though), so shouldn't people have rights over their likenesses? If Obama says that the use of his picture is cool, it should be cool.
We could even use this to "protect the children" in that the subjects could step forth and demand damages.
What you're talking about is called "right of publicity". In the US it is a matter of state law, not federal law, and the details vary considerably from state to state. Obama probably has no claim here because the original photograph is a news photograph of a public figure. Obama might well have a claim if the photograph or a derivative work were used for something like advertising soap.
One other point: the right of publicity is a purely negative right. The holder of the right has the power to prevent certain uses of his or her image. He or she does not have the right to license uses of his or her image that infringe on other IP rights. If a photographer takes a picture of, say, Jennifer Aniston, she can prevent that photograph from being used in an advertising campaign for hairspray or clothing. She cannot, however, unilaterally grant a license to an advertising agency. The photographer
I think it's even more simple than that... everyone's greedy and copyright law is completely broken.
the IP industry wants it both ways and only when it supports larger corporations rather than individuals...
contrast this with the recent wikipedia issue of the UKs national portrait gallery claiming copyright on photos taken of portraits that are in the public domain
Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.
Fairey had no idea who created the image, and as I understand it there was no credit in the clip he found on the internet. Last year I tried to search for an image of a pro football player (not one of the "stars") to frame for a big fan of his who is a friend. I looked all over the net and found several, but most were not the quality needed for reproduction, and most had no attribution whatsoever. By chance, a full resolution photo was posted to a fan site associated with the team - again with no attribution whatsoever. Luckily, the photographer _had_ placed his name in the EXIF data, and the photo had been uploaded without any modifications. From his name, I found his website and obtained permission to reproduce the photo (he printed a nice 16x20 at his printer and shipped it to me for a reasonable fee). Honestly, it can be hard to track down a copyright owner with all the thumbnail clips on the net. If you stopped 100 people on the street in middle America and asked them how to view the EXIF data on a jpeg photo, do you think you'd get more than 4 or 5 people to actually be able to tell you? I knew, and it was still difficult to find.
It's not as easy as you think to find the author. I got burned for $2k by Getty about a year ago for two 150x200pixel images on my business website. The images were contained on a "royalty free" CD purchased by my web designer some 8 years prior, and the images contained no attribution to the author or copyright holder. A web crawler for Getty matched the images to their catalog, and I got a "bend over" letter in the mail. The actual usage would have cost me about $180, had I known the images weren't royalty free, and known that Getty owned/managed the copyright.
I don't think that particular photo made any difference to the art. It could have been one of many photos to act as a "portrait setting" for the bold color scheme and MLK-like pose for the poster (which I believe is the art of the piece)
>>Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.
If that's truly the case, then why would Fairey have needed to use the photo at all? If it is generic, why did he use it? Why wouldn't he use his magic artist skillz to create some equally lifelike pose without anyone else's photo? I understand the majority of Slashdot doesn't view photography as a creat
I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative. Many key elements of the photo have been removed or altered beyond recognition or to the point of being wholly generic (collared shirt, tied tie, blank background turned into two contrasting colors). There is no way to tell from the poster where he is (inside? outside? etc...)
Does it/should it come down to "did he create it from scratch or use the photo as a template for his work?" As I understand copyright, it doesn't. If he had created this from seeing Obama in person, or from the photo in the paper, without the digital version as a starting point - would it still be copyright infringement?
Let me try a different direction: as a public figure, with the cameras "always on," and the number of poses that are common to a man who carefully considers his speeches and deliveries - is there any shot of him that _can't_ be found to match a realistic rendering of his bust in a "natural" or "common" stance from scratch? I suspect, though I can't prove, that amongst the thousands and thousands of hours of TV footage of the campaign and first 6 months of his presidency there is a shot of him at least once, if not multiple times, with a pose similar enough to the photo to use as a model for the poster. That, to me , makes the subject so generic as to be a fact, and not copyrightable. The exact digital file, however, is still copyrightable, as it puts him in a place, with particular fine, defining features of the time, and with a specific background, foreground, and the like - i.e., a photograph.
I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative.
I agree. It is a classic fair use.
The problem is that the way the courts handle these cases, it can cost zillions of dollars in legal fees to get to that point, and there is no guarantee how it will come out. The creative process is hampered by this openendedness. An artist should be able to know ahead of time whether he can or can't use something, and if so to what extent.
No man is an island, and all that; I get the general idea. All works are derivative works. But there's a big difference even between being inspired by what you've seen and attempting to duplicate it, and going forth and literally duplicating it. I don't believe that it is theft, or even that it is necessarily wrong in all cases. In fact, I don't necessarily even believe that it is wrong in this case. I do, however, see the obvious argument.
Ultimately, I think that our society can function without copyright. On the other hand, you can't count on people not to be asshats. If you want photographers to be able to make a living taking photographs and licensing or selling them and so on, you have to believe in their right to control their distribution and use to some extent. It's okay not to want that, although some photographers might disagree. After all, people pay for images used in commercial art every day.
If his initial attitude changed it must have done so a while ago. I heard the artist and the photographer interviewed by Terry Gross on NPR some months ago, and the latter was quite clear that he considered his photograph to have been stolen, and also made the claim then that he thought he owned the copyright, not the AP. He was a bit peeved, and frustrated by the general attitude that people thought they could do whatever they wanted with images that they happened to find on the internet (which was where this artist found the photograph). He described the difficult, creative work and considerable preparation that went in to making the photograph, and, naturally, did not agree with the artists' view that his transformation of it was creatively significant enough to support his claim of fair use. Originally, I was sympathetic with the artist, but after hearing the photographer's point of view, I'm torn.
It may be that Duchamp and Warhol paved the way towards the act of selection being defined as a creative act, but I find it difficult to think of Fairey in the same light. His work isn't breaking barriers, presenting irony, or forcing us to rethink our interpretation of the source material he chooses to use. It is blatantly commercial and self-serving, calling attention to the Fairey brand without adding any value or doing any creative work as part of the process.
*shrug* Be more interesting with bigger versions of the images, I have no beef with you if you disagree--just think that actually providing the data is interes
...you could find a frame in the thousands of hours of TV coverage of Obama that has his face in this approximate pose and orientation - enough from which to base the stylization of the bust, and crop out the background to the multi-colored sky and banner bottom? Would the existence of such a frame nullify this lawsuit, or create a second one allowing one of the TV networks to sue the artist as well?
It would make virtually no difference, unless you could show Fairey copied from that frame instead of the photograph (meanwhile, sourcing from the photograph has generally been acknowledged).
Copyright does not require uniqueness or novelty. It requires originality, i.e., you created the portion of the content you are claiming rights to rather than copying it or registering someone else's work, and expressiveness, i.e., the portion of the content you are claiming rights to is an expression of an idea (aliens invading earth) rather than a bare fact, an abstract idea, or a conventional meme/plot. Ex: Two photographers standing right next to each other take essentially simultaneous and virtually identical photographs of Obama at a rally. Two separate copyrights, and neither work infringes the other.
Once you get beyond registration (which is required in order to file suit for copyright infringement), the primary bone of contention in a copyright infringement lawsuit for a "derivative work" is whether the author of the later work 1. had access to the earlier work and 2. appropriated substantial expressive elements of the earlier work. If there was no access, or even with access no appropriation from that work, there should be no copyright violation. Ex: Third photographer takes photograph that is coincidentially similar to first two at later portion of rally. Third separate copyright, no infringement. Ex: Third photographer poses Obama look-alike in rally-like staging to create a third photograph like one of the first two (the only one they've seen). Probable copyright infringement of only one copyright.
The only advantage to there being another source, if in fact it was the other source, is to say "No, I didn't take it from you, I took it from them, and it was public domain/licensed/none-of-your-business-because-it-wasn't-yours. And then prove it. The public domain, of course, might be that other source. But don't expect the copyright owner to take someone's word for it unless they're a reasonably trustworthy someone.
So, if this is not a unique pose for Obama, and the shirt and tie are also common, is this not "a conventional meme/plot" or - in this case - pose which is a feature of the personality of the man, rather than the creative originality on the part of the original photographer?
Uniqueness is not required. Are you arguing that Obama always takes that body position, and is recorded from that angle, with that framing? So frequently as to be routine? At best, you might argue that the views are akin to a "scene a
Neither. Any number of photographers who took identical photos would have their own copyright. Only the one whose photo was traced (if indeed one was) would have a case. If the artist looked at photos but drew his own he's likely fine, unless he took extreme attention to detail.
If this had been a frame from a video it would (more) likely fall under fair use being an insignificant part of the whole. Each still photo is individually copyrighted, borrowing one still photo is less 'fair' than one frame of a vid
Regarding this: "There's no way to square this with his original comments"
I do not believe Garcia is being inconsistent; I would probably have a similar reaction. I put almost all my photographs under the creative commons license, and I am very flattered when anyone considers my photographs good enough to use for anything. Still, I consider this part of the license absolutely essential: "you must attribute the work in the manner specified by the author or licensor". I took the energy to take and share my photograph with others, so I think the license I put it under should be respected.
Although I use a different license than Garcia, we both agree that putting something online should not be the equivalent of completely losing ownership/control of our art. Still, we are both flattered when people do want to use our art. These two beliefs are not mutually exclusive.
In order for AP to use Manuel Garcia's photos, Garcia had to give them a written license or contract stating the rights he was giving them (first use, non-exclusive rights, all rights, domestic rights, international rights, etc.).
What was the contract that Garcia signed with AP? If he didn't sign anything, then AP wouldn't have any rights to use his work at all. If he signed over all his rights, AP owns the work. If he signed over certain rights to use them in newspapers and magazines, but kept all other rights for himself, then he owns the rights. Depending on the contract he used, he might have kept the right to make derivative merchandise.
Garcia's legal papers don't mention anything about the contract he signed with AP.
Are there any photographers out there? What are the provisions in the usual contract you sign with an agency like AP? Do you sell all rights? What rights do you keep?
I think the photographer is due something. But by the time the courts have figured out exactly what that is, the lawyers will have used up all the money.
Arbitration seems like a worthy alternative to the courts.
Since it's a famous picture of him, maybe the President could spend a few hours looking over those law books and sorting out some of this Intellectual Property mess we find ourselves in. Look at it another way, if Barack Obama can somehow be personally dragged into this vortex the way John Q. Downloader has been, maybe there finally will finally be some... Change.:)
From what I understand, their claim is pretty much completely dependent on the wording of the contract they had with the photographer. If the AP has a signed contract saying that they own the copyright of all the pictures he took for them, then their claim is valid. If they only have a contract that says they get unlimited reproduction rights (my understanding is that a typical contract is more like that), then they don't own the copyright. Until details of the contract are presented, nobody can know anything more about their case.
Nearly every photograph Ansel Adams [wikipedia.org] ever took was of a "publicly owned object." Do you really think his photographs are not original work deserving of copyright?
Fair use serves a crucial role in limiting the reach of what would otherwise be an intolerably expansive grant of rights to copyright owners. Were it not for the fair use doctrine, each of the following activities would be infringing:
* whistling a tune while walking down the street (public performance)
* cutting out a New Yorker cartoon and posting it on your office door (public display)
* photocopying a newspaper article for your files (reproduction)
* quoting a line from The Simpsons in an email to a coworker (reproduction)
* reverse engineering of computer code (reproduction)
* "time-shifting" a radio or television program (reproduction)
* playing an excerpt of Roy Orbison's "Pretty Woman" in a copyright law course (public performance)
* quoting from a novel in a review (reproduction)
If you ever took an art class, you know that they use such things as pictures and then ask you to create your own art from it. If this case is found guilty of copyright impingement, then art classes will be outlawed or drastically changed so that one cannot create art from a photograph.
It is not a photocopy, it is art, it is not an exact copy, it is different in a certain way as an art form goes.
If this case is valid, then artists everywhere will lose their rights and freedoms to create art just like it.
Photog? (Score:2, Informative)
Re:Photog? (Score:5, Insightful)
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Re:Afro-American Racism Against Whites and Asians (Score:4, Insightful)
We really did ourselves in with this election I'm afraid.
With this election!? You americans are some severely diluted people. For the past 8 years your ex president helped your nation gain one of the worst reputations in the world, and you honestly think that now you've fucked up? The next time a european (or a piece of "eurotrash" as you so elaborately call us) flips you the finger for just being american, please don't be surprised. It only makes you look even more embarassing since it merely proves your cluelessness of just what the fuck the world thinks.
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The Internet, of course. Maybe you've heard of Vimeo, or Youtube? Plenty of pictures with voices, hell some are just still pictures with music playing!
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Actually, it is highly relevant for many of us web geeks, due to the tangled mess that copyright and inspiration versus derivative works is. In an indirect way, this could influence things like source code, where a company sues a smaller company for copyright infringement, and then the coder who wrote the code in the first place steps in, claiming that the supposed copyright holder only licensed the code from him and didn't get full copy rights.
I personally think this case ought to go to Mr. Fairey, since h
Is this the photo of... (Score:4, Funny)
...Obama checking out some 17 year old girl's ass?
Re:Is this the photo of... (Score:5, Funny)
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Re:Is this the photo of... (Score:5, Interesting)
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Re:Is this the photo of... (Score:5, Informative)
Dude, have you seen the photo [popcrunch.com]? It's actually out of context (if you see the actual video), but hilarious. If it was Bush, everyone would be hamming it up. Obama's the president, and with that comes our right as Americans to poke fun at him on a regular basis. There's nothing unique about him that exempts him from that. Also, your comment indicates presumptuousness - how to you know syousef is conservative? Also, what's up with being Anonymous Coward? Are you that ashamed of your political ideals?
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If it were Bush ... (Score:5, Funny)
,,, it would look like this:
http://i.dailymail.co.uk/i/pix/2008/08/09/article-0-0237E35600000578-961_468x541.jpg [dailymail.co.uk]
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Re:If it were Bush ... (Score:4, Informative)
Yeah, the girl in question asked for a swat on the butt, but Bush decided one in the small of the back was more appropriate. [dailymail.co.uk]
Clearly Bush (who got to play some volleyball) had the better of it, if you read the whole article.
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Re:Is this the photo of... (Score:5, Interesting)
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Re:Is this the photo of... (Score:5, Informative)
ABC posted a video of the whole event, he is not checking her out. Or at least, his head does not track her. He's turning around to offer an arm to the woman behind him to help her down the stairs.
Sarkoszy, on the other hand, stares at her ass for a good 10 seconds.
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Re:Is this the photo of... (Score:5, Informative)
It's here: http://www.youtube.com/watch?v=RbifTbJtgJA [youtube.com]
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Re:Is this the photo of... (Score:5, Funny)
Thank goodness Berlusconi wasn't there.
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Really? (Score:5, Informative)
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Indeed, you're talking about a Shibboleth [wikipedia.org]. It's a cool word.
I'm having a hard time seeing infringement (Score:5, Insightful)
So, lets say that this isn't Obama, since the personality and timeliness of the subject appear to be clouding the issue. I'm presuming that the timliness of an image, since the copyright lasts for over a century, isn't salient (someone will doubtless correct me if I'm wrong).
Let's say this is the picture of the Hellers Bakery. Let's say it's a photo of a street flower vendor, and someone takes an anonymous photo off the net and decides to base a work of art on it. It might look like this http://www.josephcraigenglish.com/SidewalkFlowers.jpg [josephcraigenglish.com] and the artist would be required to create the hundred-plus silk screens and choose the colors to create a particular mood. How about if it were more generic? Say, a photo of the Capitol, posterized down to 8 colors with a red-white-and-blue sky?
Having seen the photo and the print for the first time today (but having hear about it previously), I'm calling bullshit on the AP and Garcia. Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.
I fear that the court will rule in favor or either the AP or Garcia. If they do, it will be just one more proof that the system is broken, and is stifling rather than promoting and enabling.
Oops (Score:2)
Sorry 'bout the Heller's Bakery line...I forgot to delete it when I chose another JCE print. FWIW, he does very nice work, and they're a bit of fun when you want to add color to a room. It's a bonus if you're from the DC area and know the spots he likes to take as subjects.
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We could even use this to "protect the children" in that the subjects could step forth and demand damages.
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What you're talking about is called "right of publicity". In the US it is a matter of state law, not federal law, and the details vary considerably from state to state. Obama probably has no claim here because the original photograph is a news photograph of a public figure. Obama might well have a claim if the photograph or a derivative work were used for something like advertising soap.
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One other point: the right of publicity is a purely negative right. The holder of the right has the power to prevent certain uses of his or her image. He or she does not have the right to license uses of his or her image that infringe on other IP rights. If a photographer takes a picture of, say, Jennifer Aniston, she can prevent that photograph from being used in an advertising campaign for hairspray or clothing. She cannot, however, unilaterally grant a license to an advertising agency. The photographer
Re:I'm having a hard time seeing infringement (Score:5, Insightful)
I think it's even more simple than that ... everyone's greedy and copyright law is completely broken.
the IP industry wants it both ways and only when it supports larger corporations rather than individuals ...
contrast this with the recent wikipedia issue of the UKs national portrait gallery claiming copyright on photos taken of portraits that are in the public domain
http://yro.slashdot.org/story/09/07/11/1239244/UKs-National-Portrait-Gallery-Threatens-To-Sue-Wikipedia-User [slashdot.org]
the real issue is that copyright law protects the entity with the largest legal budget.
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Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.
All photographs are "factual" information.
Re:I'm having a hard time seeing infringement (Score:4, Interesting)
Fairey had no idea who created the image, and as I understand it there was no credit in the clip he found on the internet. Last year I tried to search for an image of a pro football player (not one of the "stars") to frame for a big fan of his who is a friend. I looked all over the net and found several, but most were not the quality needed for reproduction, and most had no attribution whatsoever. By chance, a full resolution photo was posted to a fan site associated with the team - again with no attribution whatsoever. Luckily, the photographer _had_ placed his name in the EXIF data, and the photo had been uploaded without any modifications. From his name, I found his website and obtained permission to reproduce the photo (he printed a nice 16x20 at his printer and shipped it to me for a reasonable fee). Honestly, it can be hard to track down a copyright owner with all the thumbnail clips on the net. If you stopped 100 people on the street in middle America and asked them how to view the EXIF data on a jpeg photo, do you think you'd get more than 4 or 5 people to actually be able to tell you? I knew, and it was still difficult to find.
It's not as easy as you think to find the author. I got burned for $2k by Getty about a year ago for two 150x200pixel images on my business website. The images were contained on a "royalty free" CD purchased by my web designer some 8 years prior, and the images contained no attribution to the author or copyright holder. A web crawler for Getty matched the images to their catalog, and I got a "bend over" letter in the mail. The actual usage would have cost me about $180, had I known the images weren't royalty free, and known that Getty owned/managed the copyright.
I don't think that particular photo made any difference to the art. It could have been one of many photos to act as a "portrait setting" for the bold color scheme and MLK-like pose for the poster (which I believe is the art of the piece)
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>>Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.
If that's truly the case, then why would Fairey have needed to use the photo at all? If it is generic, why did he use it? Why wouldn't he use his magic artist skillz to create some equally lifelike pose without anyone else's photo? I understand the majority of Slashdot doesn't view photography as a creat
Re:I'm having a hard time seeing infringement (Score:4, Insightful)
I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative. Many key elements of the photo have been removed or altered beyond recognition or to the point of being wholly generic (collared shirt, tied tie, blank background turned into two contrasting colors). There is no way to tell from the poster where he is (inside? outside? etc...)
Does it/should it come down to "did he create it from scratch or use the photo as a template for his work?" As I understand copyright, it doesn't. If he had created this from seeing Obama in person, or from the photo in the paper, without the digital version as a starting point - would it still be copyright infringement?
Let me try a different direction: as a public figure, with the cameras "always on," and the number of poses that are common to a man who carefully considers his speeches and deliveries - is there any shot of him that _can't_ be found to match a realistic rendering of his bust in a "natural" or "common" stance from scratch? I suspect, though I can't prove, that amongst the thousands and thousands of hours of TV footage of the campaign and first 6 months of his presidency there is a shot of him at least once, if not multiple times, with a pose similar enough to the photo to use as a model for the poster. That, to me , makes the subject so generic as to be a fact, and not copyrightable. The exact digital file, however, is still copyrightable, as it puts him in a place, with particular fine, defining features of the time, and with a specific background, foreground, and the like - i.e., a photograph.
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I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative.
I agree. It is a classic fair use.
The problem is that the way the courts handle these cases, it can cost zillions of dollars in legal fees to get to that point, and there is no guarantee how it will come out. The creative process is hampered by this openendedness. An artist should be able to know ahead of time whether he can or can't use something, and if so to what extent.
Re:I'm having a hard time seeing infringement (Score:5, Insightful)
Ultimately, if you don't want to secure the author's permission, you should do your own work.
Sorry to disillusion you, but nihil sub solum novum. There is no such thing as "your own work"; all creators build upon what others have done.
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Re:I'm having a hard time seeing infringement (Score:4, Interesting)
No man is an island, and all that; I get the general idea. All works are derivative works. But there's a big difference even between being inspired by what you've seen and attempting to duplicate it, and going forth and literally duplicating it. I don't believe that it is theft, or even that it is necessarily wrong in all cases. In fact, I don't necessarily even believe that it is wrong in this case. I do, however, see the obvious argument.
Ultimately, I think that our society can function without copyright. On the other hand, you can't count on people not to be asshats. If you want photographers to be able to make a living taking photographs and licensing or selling them and so on, you have to believe in their right to control their distribution and use to some extent. It's okay not to want that, although some photographers might disagree. After all, people pay for images used in commercial art every day.
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Attitude not changed too recently (Score:5, Informative)
Re:Attitude not changed too recently (Score:5, Interesting)
Also... It looks like something a mildly talented person could do in under an hour in Photoshop.
Which is all Shepard Fairey really has to offer the world. All of his best "work" is borrowed more or less directly from another artist's source materials with little to no modification aside from his brand name. [art-for-a-change.com]
It may be that Duchamp and Warhol paved the way towards the act of selection being defined as a creative act, but I find it difficult to think of Fairey in the same light. His work isn't breaking barriers, presenting irony, or forcing us to rethink our interpretation of the source material he chooses to use. It is blatantly commercial and self-serving, calling attention to the Fairey brand without adding any value or doing any creative work as part of the process.
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Re: (Score:3, Insightful)
Wait, are you saying that Andy Warhol wasn't commercial and self-serving?
Re: (Score:3, Insightful)
Don't throw out accusations of tracing without even taking the short time needed to test your theory.
Looks like more or less a tracing to me, as per the rollover image at the bottom of this post.
http://blog.ideeinc.com/2009/01/23/will-the-real-obama-hope-photograph-stand-up/ [ideeinc.com] And I don't see what you're talking about with respect to the ear symmetry.
*shrug* Be more interesting with bigger versions of the images, I have no beef with you if you disagree--just think that actually providing the data is interes
What are the chances... (Score:3, Insightful)
...you could find a frame in the thousands of hours of TV coverage of Obama that has his face in this approximate pose and orientation - enough from which to base the stylization of the bust, and crop out the background to the multi-colored sky and banner bottom? Would the existence of such a frame nullify this lawsuit, or create a second one allowing one of the TV networks to sue the artist as well?
Re:What are the chances... (Score:5, Insightful)
It would make virtually no difference, unless you could show Fairey copied from that frame instead of the photograph (meanwhile, sourcing from the photograph has generally been acknowledged).
Copyright does not require uniqueness or novelty. It requires originality, i.e., you created the portion of the content you are claiming rights to rather than copying it or registering someone else's work, and expressiveness, i.e., the portion of the content you are claiming rights to is an expression of an idea (aliens invading earth) rather than a bare fact, an abstract idea, or a conventional meme/plot. Ex: Two photographers standing right next to each other take essentially simultaneous and virtually identical photographs of Obama at a rally. Two separate copyrights, and neither work infringes the other.
Once you get beyond registration (which is required in order to file suit for copyright infringement), the primary bone of contention in a copyright infringement lawsuit for a "derivative work" is whether the author of the later work 1. had access to the earlier work and 2. appropriated substantial expressive elements of the earlier work. If there was no access, or even with access no appropriation from that work, there should be no copyright violation. Ex: Third photographer takes photograph that is coincidentially similar to first two at later portion of rally. Third separate copyright, no infringement. Ex: Third photographer poses Obama look-alike in rally-like staging to create a third photograph like one of the first two (the only one they've seen). Probable copyright infringement of only one copyright.
The only advantage to there being another source, if in fact it was the other source, is to say "No, I didn't take it from you, I took it from them, and it was public domain/licensed/none-of-your-business-because-it-wasn't-yours. And then prove it. The public domain, of course, might be that other source. But don't expect the copyright owner to take someone's word for it unless they're a reasonably trustworthy someone.
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Re: (Score:3, Informative)
Uniqueness is not required. Are you arguing that Obama always takes that body position, and is recorded from that angle, with that framing? So frequently as to be routine? At best, you might argue that the views are akin to a "scene a
Re: (Score:3, Interesting)
Neither. Any number of photographers who took identical photos would have their own copyright. Only the one whose photo was traced (if indeed one was) would have a case. If the artist looked at photos but drew his own he's likely fine, unless he took extreme attention to detail.
If this had been a frame from a video it would (more) likely fall under fair use being an insignificant part of the whole. Each still photo is individually copyrighted, borrowing one still photo is less 'fair' than one frame of a vid
Garcia Is Consisent (Score:5, Interesting)
Regarding this: "There's no way to square this with his original comments"
I do not believe Garcia is being inconsistent; I would probably have a similar reaction. I put almost all my photographs under the creative commons license, and I am very flattered when anyone considers my photographs good enough to use for anything. Still, I consider this part of the license absolutely essential: "you must attribute the work in the manner specified by the author or licensor". I took the energy to take and share my photograph with others, so I think the license I put it under should be respected.
Although I use a different license than Garcia, we both agree that putting something online should not be the equivalent of completely losing ownership/control of our art. Still, we are both flattered when people do want to use our art. These two beliefs are not mutually exclusive.
What was Garcia's contract with AP? (Score:3, Insightful)
What was the contract that Garcia signed with AP? If he didn't sign anything, then AP wouldn't have any rights to use his work at all. If he signed over all his rights, AP owns the work. If he signed over certain rights to use them in newspapers and magazines, but kept all other rights for himself, then he owns the rights. Depending on the contract he used, he might have kept the right to make derivative merchandise.
Garcia's legal papers don't mention anything about the contract he signed with AP.
Are there any photographers out there? What are the provisions in the usual contract you sign with an agency like AP? Do you sell all rights? What rights do you keep?
Hope for copyright reform? (Score:4, Insightful)
I think the photographer is due something. But by the time the courts have figured out exactly what that is, the lawyers will have used up all the money.
Arbitration seems like a worthy alternative to the courts.
Since it's a famous picture of him, maybe the President could spend a few hours looking over those law books and sorting out some of this Intellectual Property mess we find ourselves in. Look at it another way, if Barack Obama can somehow be personally dragged into this vortex the way John Q. Downloader has been, maybe there finally will finally be some... Change. :)
Re:Does the AP have a leg to stand on? (Score:5, Insightful)
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Re:Copyright is out of control (Score:4, Insightful)
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Re:This is all irrelevant (Score:4, Informative)
You can't be serious about that? [eff.org] Clearly it does apply.
Fair use serves a crucial role in limiting the reach of what would otherwise be an intolerably expansive grant of rights to copyright owners. Were it not for the fair use doctrine, each of the following activities would be infringing:
* whistling a tune while walking down the street (public performance)
* cutting out a New Yorker cartoon and posting it on your office door (public display)
* photocopying a newspaper article for your files (reproduction)
* quoting a line from The Simpsons in an email to a coworker (reproduction)
* reverse engineering of computer code (reproduction)
* "time-shifting" a radio or television program (reproduction)
* playing an excerpt of Roy Orbison's "Pretty Woman" in a copyright law course (public performance)
* quoting from a novel in a review (reproduction)
If you ever took an art class, you know that they use such things as pictures and then ask you to create your own art from it. If this case is found guilty of copyright impingement, then art classes will be outlawed or drastically changed so that one cannot create art from a photograph.
It is not a photocopy, it is art, it is not an exact copy, it is different in a certain way as an art form goes.
If this case is valid, then artists everywhere will lose their rights and freedoms to create art just like it.
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