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Obama Photog Says "You're Both Wrong" To AP & Fairey 222

Posted by timothy
from the faire-use-is-no-excuse dept.
NewYorkCountryLawyer writes "In Fairey v. Associated Press, the Associated Press said artist Shepard Fairey's painting had infringed its copyrights in a photo of then-President Elect Barack Obama. Fairey said no, it was a 'fair use'. Now, the freelance photographer who actually took the AP photo — Manuel Garcia — has sought permission to intervene in the case, saying that both the AP and Fairey are wrong. Garcia's motion (PDF) protests that he, not AP, is the owner of the copyright in the photograph, and that he never relinquished it to AP. And he argues that Fairey is not entitled to a fair use defense. According to an article in TechDirt, this intervention motion by Mr. Garcia represents a changed attitude on his part, and that his initial reaction to Mr. Fairey's painting was admiration, and a desire for an autographed litho. Maybe Mr. Fairey should have given him that autographed litho."
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Obama Photog Says "You're Both Wrong" To AP & Fairey

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  • Photog? (Score:2, Informative)

    by Tubal-Cain (1289912)
    Title would be much clearer if the g was dropped from 'Photog'.
    • Re:Photog? (Score:5, Insightful)

      by slarrg (931336) on Sunday July 12, 2009 @06:52PM (#28670571)
      Personally, I would prefer the headline "Obama Photographer Says AP and Fairey Are Both Wrong" for the same number of characters.
      • Re: (Score:3, Insightful)

        by TinBromide (921574)
        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 slarrg (931336)
          Well, if the headline were referring to any particular White House photographer or their position I would expect it to say "White House photographer" not "Obama photographer". The primary reason for having "Obama photographer" in the headline rather than simply "photographer" is that the news story is only relevant because a well-known, iconic poster was made from the reference photo. If this were a lesser known photo with an equally unknown derivative work it would simply not be newsworthy. Having "Obama p
        • Eh?

          Obama wasn't a president at the time that photo was taken. Official [*] has nothing to do with anything...whomever WAS the OWHP then wouldn't have been photographing the President if he had been taking shots of Obama.
      • by crossmr (957846)
        That wouldn't be nearly as tabloid and sexy as the current title.
    • Re: (Score:3, Insightful)

      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...
  • by syousef (465911) on Sunday July 12, 2009 @06:24PM (#28670381) Journal

    ...Obama checking out some 17 year old girl's ass?

  • Really? (Score:5, Informative)

    by PotatoSan (1350933) on Sunday July 12, 2009 @06:34PM (#28670435)
    Photog? Litho? You can't be bothered to type those out?
    • Re: (Score:3, Interesting)

      "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.
      • by tyrione (134248)

        "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.

        Yes and they are actually artists who make them, not some Internet reader passing off the jargon as if they are in that particular industry.

        • by jvkjvk (102057)

          RIght, because no one outside an industry should be allowed to use the magic words?

          Umm, what?

    • Re:Really? (Score:4, Funny)

      by Strange Ranger (454494) on Sunday July 12, 2009 @07:54PM (#28670939)
      You mean photogoober isn't having a lithotomy?
      • by selven (1556643)
        What is a lithotomy? My knowledge of Latin and Greek makes me think it has something to do with getting stoned...
    • by mcgrew (92797)

      2 mch txtng i thk. kds r lzy.

  • by Overzeetop (214511) on Sunday July 12, 2009 @06:39PM (#28670461) Journal

    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.

    • Re: (Score:3, Interesting)

      by TinBromide (921574)
      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.
      • Re: (Score:3, Informative)

        by belmolis (702863)

        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.

      • Re: (Score:3, Informative)

        by belmolis (702863)

        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

    • by jdwilso2 (90224) on Sunday July 12, 2009 @07:06PM (#28670657)

      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.

    • Re: (Score:3, Insightful)

      by rhizome (115711)

      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.

      • But they are composed in a way which is unique. It's my assertion that the unique features which make a photograph have been almost entirely removed - transformed into an image which could very well be found to be nearly identical to a frame of a TV clip of the same - or even another - speaking engagement the (now) President has given over the last 2 years.

        FWIW - I've been doing photography for 30 years, almost never for money, but I work in the Architecture field, which is all about creativity, uniqueness,

        • by sker (467551)

          >> "It's my assertion that the unique features which make a photograph have been almost entirely removed - transformed into an image which could very well be found to be nearly identical to a frame of a TV clip of the same - or even another - speaking engagement the (now) President has given over the last 2 years."

          If that's true then it should have been easy for Fairey to find some pubic domain image to use. If I take someone else's code for something I could have written but didn't feel like it, tha

          • by Overzeetop (214511) on Sunday July 12, 2009 @09:54PM (#28671729) Journal

            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)

            • by Joe Decker (3806)

              It's not as easy as you think to find the author

              Indeed, it really isn't. I'm a photographer and, yeah, it does happen that stuff gets separated from it's owner, EXIF should be a pretty good solution but sometimes, even often, people strip it out along.

              There are a few steps being taken toward "search the web by image content, approximately", the best example I know of so far is the TinEye search engine (www.tineye.com). It's pretty cool, even found a musical group that was using one of my images as their f

      • by Firehed (942385)

        Photographers (more often than not) are attempting to tell a specific story, and will very intentionally compose a photo accordingly. So while photos aren't lies (excluding work in photoshop), they can and do often take a small section of the truth way out of context.

      • by hedwards (940851)
        Sigh, I wish this myth would die. Technically speaking you cannot render 3 dimensions onto only 2 without making some sort of creative or editorial decision as to how the projection should work out. Factual photographs are a very specific type of photo which is aimed at preserving or relaying information rather than on expression.

        Typically speaking the photo won't have any meaningful creative element to it and will just consist of documentary evidence. Sort of like group photos or pictures of museum piec
    • Re: (Score:3, Interesting)

      by sker (467551)

      >>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

      • If the original photo adds nothing at all to the "essence" of the final work then Fairey shouldn't have needed it in the first place.

        It certainly had mechanical value to Fairey's work, but not much more.

        Arguing that it had creative value is going to be extremely difficult - very little of the normal creative elements that go into photography exists in the final work - not depth of field, not framing, not color temp, not grain, not exposure, not lighting, not focus, not fine detail. What Fairey has done is the visual equivalent of summarizing an entire book in a couple of paragraphs and then adding his own spin to the reaming skeleton of

  • by lee1 (219161) <{lee} {at} {lee-phillips.org}> on Sunday July 12, 2009 @06:49PM (#28670541) Homepage
    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.
  • No one seems to have noticed the real "transformative" or impressionist addition made by the "painter", huh? He altered the background and shading in the photo to reflect a gradient from red to white to blue.

    I'd say that's plenty transformative enough. Regardless, I feel like I'm playing devil's advocate in even pointing this out, given that I disagree with most of the justifications for the existence of copyright in the first place.

    This "photog" Garcia is apparently a prick who isn't happy with just his

  • as it is up to a court and judge to decide if the "fair use" clause can be used for the artwork.

    In many cases artwork is based on pictures, but it is different enough from the picture that it does not violate copyrights. If it was a bit by bit copy you can claim copyright violation, but it is not a 100% match and may be different enough through effects and colors that it may fall under "Fair Use" for parody or works of art, or anything.

    It should be noted that the "stupid" DMCA law tries to do away with "Fai

    • The DMCA applies to neither fair use nor to this case.

      • by Orion Blastar (457579) <orionblastar@@@gmail...com> on Sunday July 12, 2009 @09:35PM (#28671607) Homepage Journal

        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.

  • From Garcia in the techdirt article:

    "When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."

    Actually, posting it on the internet does make it free for the taking, Garcia. It's just not free to sell or distribute as ones own.

    Personally, I think this is a bunch of crap. At the very most, the poster only looks like a drawing of Obama's head from the picture. Maybe it was stylized in Photoshop or maybe he very carefully sketched out a drawing of the photo, but there was also some additional details added by the poster author that are not in the picture, just as

    • From Garcia in the techdirt article:

      "When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."

      Actually, posting it on the internet does make it free for the taking, Garcia. It's just not free to sell or distribute as ones own.

      Actually, you went just a bit to far/ Had you said:

      It's just not free to sell or distribute.

      you'd be correct for much of what is on the net. I run into the "I found it on the net so it must be free to use / public domain / not copyrighted;" it's amazing how many people think that even when they are otherwise savvy business people. I often ask "so because I can easily get electronic copies of our work on the net it must be free for anyone to use rather than pay use, eh?" Of course, these same people balk

  • by Overzeetop (214511) on Sunday July 12, 2009 @07:52PM (#28670927) Journal

    ...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?

    • by DRJlaw (946416) on Sunday July 12, 2009 @09:17PM (#28671457)

      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?

        If this were a shot of the Capitol, would it make a difference? What if the graphic artist who created this:

        http://www.lneuman.com/ACEOs/images/m2588.jpg [lneuman.com]

        was sued by the photographer who took this shot:

        http://creativebushido.files.wordpr [wordpress.com]

        • Re: (Score:3, Informative)

          by DRJlaw (946416)

          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

    • Seems to me that showing that the painting could have been plausibly based on any of several photos would strengthen the painter's case considerably. Doing so would indicate that what he copied was not the photographer's creative expression but mere scènes à faire.

    • Re: (Score:3, Interesting)

      by WNight (23683)

      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

      • "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 video."

        That brings up an interesting distinction, especially as video gets better and better. We already record HD at 1920x1080 - fully 2 megapixels. (For the young 'uns out there, my first digital camera was less than 1MP, and I have some negatives on Konica 3200 which can certai

  • Taking a a photograph of something is not an original work, for the most part. Painting a picture of it might be.

    But to be honest (while leaving out entirely my position on Obama's politics themselves) I would think that Obama himself should have copyright on any images of himself, to hell with who made them.

    I think this should apply in general, although photo studios certainly believe otherwise and go out of their way to tell you so. If the subject of a photo is a person, then that person should have an ov

    • by e9th (652576) <e9th.tupodex@com> on Sunday July 12, 2009 @08:33PM (#28671195)
      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?
      • Re: (Score:2, Insightful)

        by RealGrouchy (943109)

        If I design a can label for a soup company, do I own the label, or does the company?

        If someone takes a photo of the can with 'my' label on it, who owns the copyright to the photo?

        If someone paints a pop-art version of that photo, who owns the rights to it?

        If someone takes a photograph of that painting, who owns the rights to it?

        The only winner is the copyright lawyers for all these people.

        - RG>

  • Nice of him to let AP do all the leg work on the case and THEN intervene.

  • Garcia Is Consisent (Score:5, Interesting)

    by rm999 (775449) on Sunday July 12, 2009 @10:54PM (#28672081)

    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.

  • ...to point out that he is actually the one with ownership over his own head and all 3 of these people are wrong?

  • by nbauman (624611) on Monday July 13, 2009 @01:21AM (#28672817) Homepage Journal
    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?

  • by Qrlx (258924) on Monday July 13, 2009 @02:29AM (#28673079) Homepage Journal

    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. :)

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