Obama Photog Says "You're Both Wrong" To AP & Fairey 222
Posted
by
timothy
from the faire-use-is-no-excuse dept.
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."
Re:Really? (Score:3, Interesting)
Re:Is this the photo of... (Score:5, Interesting)
Re:I'm having a hard time seeing infringement (Score:3, Interesting)
We could even use this to "protect the children" in that the subjects could step forth and demand damages. That angle alone should get 90% of washington behind it.
Re:Is this the photo of... (Score:5, Interesting)
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.
Re:I'm having a hard time seeing infringement (Score:3, Interesting)
>>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 creative art with any intrinsic value. But, if the photo has no value then don't use it. 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.
Re:What are the chances... (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 video.
Frankly any outcome of this trial/issue is counter-factual because we keep insisting you can own ideas. We should all just ignore the law extra hard for a while and hope it goes away.
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)
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.
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.
great photo (Score:2, Interesting)
baby got barack
http://blog.beliefnet.com/everydayethics/2009/07/obama-ogles-ass-nah-but-sleazy-sarkozy-sure-did.html [beliefnet.com]
Re:Does the AP have a leg to stand on? (Score:2, Interesting)