AP Alledges Copyright Infringement on Obama photo

<p>The 2006 photo by Manny Garcia was used in a lot of popular posters, T-shirts, etc. It sort of reminds me of the issue of trademarks, and how companies don't like their name to become too popular, or they lose the rights to the name: like Kleenex, or Xerox.</p>

<p>http://www.breitbart.com/article.php?id=D9652OD01&show_article=1&catnum=8</p>

<p>Sounds like a lot of money should be recovered by the photog or AP.</p>

<p>Given the Asscoated Press' contract with stringers, the photographer will get zip-o-la.<br>

<br /> Whether AP's suit against Shepard Fairey gets any traction should prove an interesting test of the Fair Use doctrine in the U.S. Copyright laws.</p>

<p>Why now and why not say.....a year ago?</p>

<p>I bet Manny Garcia must be feeling heartburn whenever he sees that image. Looks like some folks made allot of money off it. </p>

<p>As in an earlier <a href="00SAaJ">discussion</a> , it is only the acknowledgement of the use that makes it a case for AP. Earlier, other photos had convincingly been identified as the source, which to me seems to argue that the image is not only "iconic", it is also "generic".</p>

<p>Very interesting case, to say the least! As far as I can tell, the artist's image is a direct manipulation of the AP photo. However, I think it's also transformative, evoking socialist/Marxist imagery such as used in posters of Lenin and Guavara. In fact it only took a few moments with Google Images before I ran across a criticism of these similarities...</p>

<p><a href="http://images.google.com/imgres?imgurl=http://www.moonbattery.com/lenin_poster.jpg&imgrefurl=http://quipster.wordpress.com/2008/10/30/red-star-symbolism-communist-socialist-marxist/&usg=__tQJwjXCdiEdinFl-BFAGkHUQypk=&h=320&w=267&sz=25&hl=en&start=20&tbnid=PbsjQkMVQAEc7M:&tbnh=118&tbnw=98&prev=/images%3Fq%3Dvladamir%2Blenin%26gbv%3D2%26hl%3Den">http://images.google.com/imgres?imgurl=http://www.moonbattery.com/lenin_poster.jpg&imgrefurl=http://quipster.wordpress.com/2008/10/30/red-star-symbolism-communist-socialist-marxist/&usg=__tQJwjXCdiEdinFl-BFAGkHUQypk=&h=320&w=267&sz=25&hl=en&start=20&tbnid=PbsjQkMVQAEc7M:&tbnh=118&tbnw=98&prev=/images%3Fq%3Dvladamir%2Blenin%26gbv%3D2%26hl%3Den</a></p>

<p>I don't think the intent was to paint Obama as a communist, so much as a revolutionary figure of sorts. I gulped rather hard when the image was first released, wondering, "What were they thinking?!" However, I think the imagery speaks to the attitudes of the American People at this time in our history. The original photograph, while nicely done, does not have this sort of impact. To me, the transformative nature of this work is obvious, and I therefore am of the opinion it is protected under fair use (not to say my opinion is in any way "correct").</p>

<p>I look forward to seeing how this case plays out. I'm rooting for Fairey! Power to the People, man! ;-)</p>

<p>If I were to take this single photo manipulation as Shephard Fairey's only transgression on the art world then I would be inclined to side with Sarah. However, there is much evidence to support my belief that Mr. Fairey is nothing more than a common plagiarist. He copies or "samples" the works of others and promotes them as his own, most often with no credit to the original artist.</p>

<p>Here is one example... <br>

<a href="http://www.art-for-a-change.com/Obey/index.htm">http://www.art-for-a-change.com/Obey/index.htm</a></p>

<p>"nothing more than a common plagiarist"</p>

<p>[sigh] Yeah, so it would appear... Thanks for posting the link.</p>

<p>I'm not so sure it's that simple, Jeff and Sarah.<br /> Rap stars "sample" music. Andy Warhol used Campbell's trademarked soup label. Handel "borrowed" music from other composers, and so on and on. Most of the images Shepard Fairey has appropriated are famous, widely used images and he has transformed them into something that "cites" those images in a style that is recognizably Fairey's not that of the original work.</p>

<p>I don't think that most people who have any knowledge of graphics and posters would mistake the Big Brother, Angela Davis, etc., for anything but what they are: quotations from classic images in a new context.<br /> There's no doubt that the artist could be more up front about it, but I'd say his history supports his case for the Obama "sampling" as a part of his established method of work.</p>

<p>Good point! This one should be very interesting to watch.</p>

<p>If he scanned the image and use digital software to alter would there be any doubt that he stole the image?</p>

<p>Manuel, that's oddly enough not the point. Some "theft" of images is actually permitted under US copyright law (and the copyright laws of several other countries). You can actually copy an image and use it under many circumstances if the use is transformative. For instance, consider a picture of someone joyeously holding up the front page of a newspaper with the headline "OBAMA!" (i.e. the day after the election victory). The newspaper is copyrighted, but the photo is not about the newspaper. It's about the person's reaction to the election. The front page lends context to the photo, and as such, its inclusion in the photo is a transformative use. Another important factor concerning this use would be whether it would hurt sales of the newspaper, for instance if people would buy the photo instead of the newspaper. This of course would likely not be a problem. Then there's frequency of use. Perhaps a couple dozen prints are sold and one goes on exhibit somewhere. That wouldn't be very widespread distribution. Finally, there's an issue of how much of the copyrighted material is used. If only the headline can be made out in the photo, then it's really only one word. This is not more gratuitous use of the copyrighted material than is necessary to achieve the objective of providing context to the photo. This use would probably be considered "fair use," so the photographer probably would not require the consent of the paper or have to compensate the paper.</p>

<p>More developments on this front.</p>

<p>News (<a href="http://www.huffingtonpost.com/2009/02/07/shepard-fairey-arrested-i_n_164872.html">link</a> ) on Feb 7, 2009, indicates that in Fairey was arrested in Boston,</p>

<blockquote>

<p>Police Officer James Kenneally says the department had Jan. 24 warrants alleging the Los Angeles artist tagged property with graffiti.</p>

</blockquote>

<p>I know Sarah, but this is one of those cases that is not clear. I suspect that AP will win in this case as the analogy I used is not much different then what occurred, but for the spray cans or brushes. It will be an interesting case. The case of the photographer who did geshia women and sued the restaurant for using the images, won. The restaurant paid someone who scanned the images and altered them somewhat using photoshop. </p>

<p>Fairey bites back!</p>

<blockquote>

<h2 >Shepard Fairey Sues Associated Press Over Obama Poster</h2>

<!-- By line --> <address >By <a title="See all posts by Dave Itzkoff" href="http://artsbeat.blogs.nytimes.com/author/dave-itzkoff/" title="See all posts by Dave Itzkoff" >Dave Itzkoff, </a> © New York Times<br /> </address>

<p><a href="http://topics.nytimes.com/top/reference/timestopics/people/f/shepard_fairey/index.html">Shepard Fairey</a> , the visual artist who created <a href="http://www.nytimes.com/2009/01/25/weekinreview/25kennedy.html">the iconic “Hope” poster of Barack Obama</a> , has filed suit against The Associated Press, according to court documents. Last week, The A.P. said in a statement that <a href="http://artsbeat.blogs.nytimes.com/2009/02/05/ap-says-it-owns-image-in-obama-poster/">the poster, based on an A.P. photograph taken by Mannie Garcia in April 2006, requires its permission for use of the image, and that it is seeking credit and compensation for its use in Mr. Fairey’s works</a> . In the suit, filed in United States District Court in New York, lawyers for Mr. Fairey are seeking a declaratory judgment which would rule that Mr. Fairey’s poster does not infringe on The A.P.’s copyrights and is protected by the Fair Use Doctrine. The complaint also seeks an injunction enjoining The A.P. from asserting its copyrights against Mr. Fairey, his company, Obey Giant, and anyone in possession of the poster or works derived from it, as well as a jury trial.</p>

</blockquote>

<p>http://artsbeat.blogs.nytimes.com/2009/02/09/shepard-fairey-sues-associated-press-over-obama-poster/</p>

<p><a href="http://www.huffingtonpost.com/jonathan-melber/the-ap-hase-no-case-again_b_165068.html">This article from the Huffington Post</a> is an interesting read. Though obviously just one person's opinion (<a href="http://www.huffingtonpost.com/jonathan-melber">Jonathon Melber</a> , lawyer, long time volunteer for "lawyers for the arts" groups, and author of an "law for artists" type book), it does bring up some topics worthy of consideration regarding the "fair use" argument.</p>

<p>Melber also maintains that Manny Garcia told him that nothing he signed with the AP ever gave the AP copyright to his images (paragraph below quoted from the above linked article):</p>

<blockquote>

<p>It's also worth noting that there's a real question as to whether the AP owns the copyright to Garcia's photograph in the first place. Under copyright law, you own the copyright to whatever you create unless you grant it to someone else in writing. Garcia told me that none of the documents he signed granted the AP the copyright to any of his photographs. He said he was "caught completely off guard" when, according to Garcia, the AP told him in January that they owned the copyright. And he was shocked when he found out the AP was going after Fairey. "I told the AP I don't want to be a part of it," said Garcia. "I don't want to sue anybody."</p>

</blockquote>

<p>This, if true, is pretty interesting and would indicate that the AP has absolutely no case even independant of the "fair use" argument. Though you have to wonder who knows better exactly what are in the AP contracts, the AP and it's lawyers, or a working photographer. No offense to Manny Garcia, but I think there are many of us in the photography world who aren't "top notch" when it comes to law and/or legal documents.</p>

<p>Read the link, not so sure that Garcia, claimed that he owned the copyright, more like I ain't sure. Great way for a lawyer to promote himself, high profile case, people won't remember if he won, they will remember his name.</p>