Obama Photog Says "You're Both Wrong" To AP & Fairey 222
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."
Photog? (Score:2, Informative)
Really? (Score:5, Informative)
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?
Attitude not changed too recently (Score:5, Informative)
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.
Re:Is this the photo of... (Score:3, Informative)
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.
Re:Is this the photo of... (Score:1, Informative)
He doesn't have 7.5 years left. Only 3.5 currently.
I for one am going to vote for change...
Re:I'm having a hard time seeing infringement (Score:3, Informative)
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:3, Informative)
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:I'm having a hard time seeing infringement (Score:3, Informative)
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 owns the copyright to the photograph must grant a license for it to be used for commercial purposes. The permission of both Ms. Aniston and the photographer is necessary. So, in this case, since Obama didn't take the photograph, his approval is not sufficient to allow an infringing use of the photograph if the photographer or AP, whichever owns the copyright, does not approve.
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.
Re:Is this the photo of... (Score:5, Informative)
It's here: http://www.youtube.com/watch?v=RbifTbJtgJA [youtube.com]
Re:What are the chances... (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 faire," except for the fact that the stylized poster was sourced from the photograph, rather than being coincidentially similar because of similar subject matter. Taking something from a copyrighted work is always riskier than doing it yourself or going back to a public domain source.
No copying, no copy infringement.
Maybe. Ask a jury. The angle of the shot might be almost unique and the artist might be really unsympathetic. There may be a thousand published photos like it and the artist might be comparatively famous. Could Campbell's have busted Warhol? *shrug* In your example the artist takes even less -- a line of sight.
There's no black and white answer, but there's an aspect of the golden rule - don't appropriate something just because you want it. If that pose is so common, why not take a picture yourself? Or negotiate with one of the the 100s of photographers who've taken the picture (that pesky competition thing)? Why all the post-hoc squirming to justify sourcing the material from that particular shot? If the photographer was so hard to find and so much has been removed (considering your other comments), why not a shot from a local TV station's evening news? Maybe a jury would think along those lines, and maybe it wouldn't.
Re:Really? (Score:3, Informative)
Indeed, you're talking about a Shibboleth [wikipedia.org]. It's a cool word.