Painter sues AP over AP's accusation of copyright infringement.

<p>The other day, the Associated Press pointed out that they believe that Shepard Fairey's painting of Obama - as widely used in campaign materials - <strong><a href="http://politicalticker.blogs.cnn.com/2009/02/05/ap-charges-copyright-infringement-on-famous-obama-image/">is an infringement on their photograph</a></strong>.<br /><br />The painter is <strong><a href="http://politicalticker.blogs.cnn.com/2009/02/10/obama-hope-artist-files-suit-against-ap/">now suing the AP over the issue</a></strong>. At issue is whether or not the painter made "fair use" of the photographer's work. From the article:<br /><br /><em>"He used the photograph for a purpose entirely different than the original, and transformed it dramatically," said the release from Anthony Falzone, executive director of the Fair Use Project at Stanford University.<br /><br />"The original photograph is a literal depiction of Obama, whereas Fairey's poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable."</em></p>

<p>I think that if a significant portion of the work was done by hand, it would be an obvious sign of fair use. If the guy had clipped it from the web and photoshopped it into the illustration, and then made a huge canvas printout, it would have been couched too much on someone else's work. To really tell, I think I would have to get a good look at it. I have seen several varieties of "Obama illustrations," obviously based on some kind of photograph from somewhere; but they have been radically different from any light-recording I would expect. Maybe, at most, in the foundation lines used to sketch out an underpainting. Depends.</p>

<p>Should people be accusing and suing each other over this? Those guys should have a beer and drop it. Sharpshooting this at the bar would be okay, but I doubt anyone of them is going to come out a winner if they bicker in public. The painting does not look like a photograph; the photograph does not look like a painting. The painting made it into the National Portrait Gallery. The photograph made it for a day on the Internet. Is that the real issue? Do we have some kind of jealousy here?</p>

<p>I would suggest that someone give them [AP Photo] a line of credit in the Bibliography; but, maybe we should also give credit to the person at the Art Supply store, running the cash register, without whose valuable contributions this painting could not have been made.</p>

<p>Unless some AP photographer saw then-candidate Obama rolling around town with some bold facepaint on, the AP is going to look like they are sharpshooting, quibbling or whining about the photo and the painting. I'd have to see the painting myself; but, it really looks like an apologize to each other and get over it situation.</p>

<p>The painter, himself, is looking foolish suing the AP over an expressed opinion. It's their opinion that this is infringement; if there's no lawsuit or billing from them, then suing them for just saying so is stupid. If there's nothing material about it, then it's just a libel or slander problem. I suspect the AP repels libel charges daily. They probably dispose of 12 of those before lunch.</p>

<p>If I were the guy, I think I would have just called up whomever said it and given them a piece of my mind, if I was really bent out of shape about it. I'd bet this would be one of those things that could be cleared up with a face to face meeting.</p>

<p>Somehow this smells faintly of Fleetwood Mac complaining about "Don't Stop Thinking About Tomorrow." Yeah, that made everyone involved look like they were great intellectuals.</p>

<p>I suppose the difference here, John, is that the painter could have picked up his supplies at any art supply house... but he couldn't have made <em>that</em> exact image (and if you look at the original photograph and the painted results, you'll see they are identical - expression, angle, etc) without the photographer's work and the photographer's employer publishing it. It's derivitive, period. The AP might have gladly licensed the image to the artist or the campaign, possibly for a song, but weren't given the opportunity to address it. </p>

<p>Okay, good point. I'd agree. In principle, I think that if you use someone else's stuff, you should ask. I'd think it would be acceptable for a student to use a photograph to make a painting for homework or an academic assignment; but that's not what this is.</p>

<p>Whether it's derivative or fair use is going to come down to the specifics of what happened, and I don't know about that. I think the call on derivative would get into where the lines fall in the portrait. For example, if it's a tight match, then derivative. If the painter looked at a reference photo and did his own work by hand, fair use. Method and practice would have a lot to do with those differences. These seem to be principles which are conditional; it depends on the specific conditions and manner in which the two works were made and presented. In the few paintings I have done for someone else from photographs, I have either asked the owner [like family snapshot to group painting] or made the picture myself. It's just easier to avoid the whole problem from the start.</p>

<p>I'm under the impression that this painting didn't come to the prominence it had until after it was made; so then there's some semantics about when the painting was published. If the painting was never intended or offered for sale, in many communities and states, it would be considered an unpublished work, even though it was made and shown publicly.</p>

<p>If that is so, then it is not the painter, but the printer of copies of the painting which might have done the infringing. Who knows about that? I think this would really get down in the weeds on who did what. Overall, both groups are going to come out losers. The AP got their photo published; the painter attained national recognition and made it into the National Portrait Gallery. Exactly, what is one side going to win over the other? They might manage to defame the other, and possibly themselves, but what would they gain? Nada. They've all already gained as much as they could from this venture, probably.<br>

<br /> <br /> I'd bet, though, that whatever happened, this whole thing has been accelerated by the outcome and attention. Probably the best way to get this resolved is to get the people involved to downshift the tension. If this happened locally in my community, I'd have visions of a judge chewing out both parties.</p>

 

<p>The angle of Obama's head in the painting is actually different than in the photo; it's more vertical. That's what clinches it for me: Fairey changed the color, style, appearance, AND actual visual composition of the photo's image. That seems like it should be enough to make it a work that stands on its own.</p>

<p>I think that I might be a tad more sympathetic towards Fairey if this whole "theft" thing wasn't a theme throughout a good deal of his work. I wish I could remember the specific link, but I saw a lengthy article that broke down his body of work as it related to existing political graphic art. It seems that he has a knack for tracking down obscure left-wing artwork from other countries, modifying it slightly, and slapping his "obey" logo on it. Since old propaganda art from eastern Europe or Latin America is unlikely to be recognized in the U.S. Fairey is free to sell his "work" on T-Shirts in skateboard shops for a tidy sum. The original images are not public domain, and Fairey has been sued by the estate of at least one artist who caught wind of the whole thing. Ad this to his graffiti "art" stencils that are ubiquitous in East Coast cities like Boston and Worcester and you have someone who isn't going to get any sympathy from me. </p>

<p>As to the specific work in question, was the Obama image painted or computer generated? It looks an awful lot like something that is the product of Photoshop>Posterize>Illustrator>LiveTrace>LivePaint. This perception is backed up by the fact that there is now a website that will convert any photo you upload into a Fairey "Obama Poster." We need to make a point of registering our dissaproval of this sort of thing lest our own copyrights become nothing more than cute little "C" decorations below our images. </p>

<p>Well said Andrew. I believe the link you were trying to locate is <a href="http://www.art-for-a-change.com/Obey/index.htm">here</a>. I cannot get past the fact that a great number of his "original" works are not only derivative but outright copies of other people's work. If he had not built his artistic legacy on the sweat and talents of others I would be more sympathetic to his claims of <em>fair use </em>in the case of the Obama thing. </p>

<p>One other point I would like to mention is that my impression of Fairey is that he is an attention whore. My first thought when I heard he had been arrested in Boston was that he probably called the cops on himself as a way to get his name back in the media. That worked for about 5 seconds so now this suit against the <em>AP</em>?</p>

<p>Did anyone else find Mr. Falzone's comments a little patronizing?</p>

<p>"not only derivative but outright copies..."<br>

You guys should listen to some music and track the roots. Is Jaco Pastorius´s bass solo "Donna Lee" an exact copy of Parker´s solo? I don´t know, and it is irrelevant. Both works are beautiful entities in their own right. The same can be said of the photo as well as the poster. For my part, I would be proud to have my photo used as an inspiration for another artist.</p>

<p>I would be proud to have my photo used as an inspiration for another artist.<br /><br />Would you be proud to start and run a high-overhead news gathering operation like the Associated Press - which pays photographers so that they can actually make a living being out there doing what they do - and then having no ability to invoke your copyrights when a political campaign that spent <em>hundreds of millions of dollars</em> made a derivitive copy of one of your works into a widely used electioneering piece, cranked out in the hundreds of thousands? The print shops that produced the hundreds of thousands of buttons, posters, bumper-stickers and t-shirts bearing this image all got paid for their tasks. But the photographer who produced the original (and his employer), who bore the costs of being out there to get the image in the first place... they should be satisfied with having inspired the copying artist, and should wave their rights?<br /><br />What strikes me as interesting isn't Fairey's typical position on this (he's well known for these derivitive copy jobs)... it's that the Obama campaign, armed with a huge checkbook and willing and able to pay for everything from cheesy Greek temple sets to enormously expensive inaugural affairs, and who clearly would benefit from cordial and professional relations with the AP, didn't just ask what the licensing should cost, and cough it up. I wonder what his many west coast entertainment industry supporters and New York publishing industry supporters think of his campaign's tacit endorsement of this shameless rights grab? Ah, change, huh?<br /><br />Regardless, the AP wasn't even suing this guy. They just pointed out the derivation from their material - no doubt so that they could demonstrate in future cases that they're not blind to it, and that they care when they're ripped off. </p>

<p>Matt, you failed to adress my musical analogy. If musical inspiration were labelled as derivative copying, as you call it, Bach would have been fined for writing his "Concert in the Italian Style" which was based on a work of Vivaldi.<br>

The actual photo of Obama was an ordinary press photo, used as inspiration for a painting. If you actually view this case as copyright infringement, you do not help your fellow photographers - you just stifle cultural development and feed more lawyers.<br>

It would be interesting to hear the opinion of EFF on this case - as opposed to the RIAA-inspired "don´t even think of copying anything at all" views.</p>

<p>Sven, another example would be the Coldplay song <em>Talk</em>, which I immediately recognized as a Kraftwerk rhythm (<em>Komputer Lieben</em>). The difference with this example is that Coldplay clearly credited the influence of the original artist in their CD insert. I don't know if Bach credited Vivaldi but when taken in context, he should have... don't you think?</p>

<p>Plagiarism is defined as: <strong>:</strong> to steal and pass off (the ideas or words of another) as one's own <strong>:</strong> use (another's production) without crediting the source <em>intransitive verb</em> <strong>:</strong> to commit literary theft <strong>:</strong> present as new and original an idea or product <strong>derived</strong> from an existing source. (credit to <a href="<a href="http://www.merriam-webster.com/dictionary/plagiarize">plagiarize</a>">Mirriam-Webster Online Dictionary</a>)</p>

<p>In Marilyn Randall's book <em>Pragmatic Plagiarism</em> she writes, <em>"The self-conciousness of contemporary appropriation differs from previous artistic imitation principally in that, like the plagiarist who knows what he is doing and that it is wrong, the post-Romantic appropriative artist knows that copying others is not the proper way to be creative, original, or perhaps even legal."</em></p>

<p>There is a distinction between being influenced and inspired by your peers and outright copying their artistry in part or in whole. We are all influenced by those we admire and those we don't.</p>

<p>It appears that Electronic Frontier's only statement regarding Fairey's artistic freedom is "It is kind of the perfect storm... It raises questions about what we as a culture and a legal society feel is proper." - Michael Kwun, senior staff attorney at the Electronic Frontier Foundation as quoted in the San Francisco Chronicle. Which, I suppose, is why we are here debating this.</p>

<p>Jeff, the point is that the poster artist could in no way have "credited" the photo without being torn apart by AP lawyers. Yet it is not a copy. Just inspiration.<br>

Compare patent law practice in US as opposed to the rest of the world. Same things going on. Patent plants, patent genes, in the most insane and absurd ways. The Author´s guild calling a machine that can read e-books aloud "an illegal reproduction device". In such a cultural climate I guess it´s OK to feel intimidated by this "perfect storm".</p>

<p>Sven: composers and performers routinely <em>do</em>, appropriately, go after other recording artists and producers who seek to make money off others' works. When it became particularly faddish to sample beats, orchestra hits, hooks, and other elements of other musician's works while producing a new dance, rap, or other recording... the people who failed to get permission from the original creators routinely found themselves in court. Clowns like "Vanilla Ice" who layered an extra note or so on top of someone else's extracted rythm or chorus found out the hard way about the inappropriateness of it.<br /><br />The painting in question isn't an homage to the photographer's work. The fact that you characterize the photo as "ordinary" (in the sense of its being photojournalist's work, rather than... what? ... an editorially commissioned portrait done by Annie Leibovitz?) is a red herring. Whether or not a photographer's work was produced under circumstances ordinary or extraordinary, easy or challenging, laborious or casual has nothing to do with it. That the photographer was a mere PJ, and not a famous photographer has nothing to do with it.<br /><br />That painter's hugely reproduced work (and one of the most visible facets of the single most expensively packaged and marketed political campaign in all of human history) <em>only exists as it is seen in the painting and the thousands of reproductions base on it</em> because it is directly derived from what the <em>photographer</em> saw and produced. And he was only there because he was being paid by his employer, the AP, to do exactly what he did: capture images of Obama.<br /><br />Fairey didn't have an image of his own over which to paint. So, he took someone else's, without so much as a nod to that other person's work or the long experience and expense that person and his employer went to in order to make that photograph happen in the first place.</p>

<p>As for the photo, it is interesting to listen to the "offended" photographer himself:<br>

"Photographer Mannie Garcia had this to say over on Tom Gralish's Philadelphia Inquirer photographer blog:<br>

""Of the iconic poster he said, 'I've been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn't snap. It never occurred to me it was my picture. I thought, 'that's familiar.' I would see it and say that's cool, but it did keep sticking in my head.' He was quick to add he is not mad at Fairey, and he's not looking at any lawsuits. 'I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work. I wouldn't mind getting a signed litho or something from the artist to put up on my wall.""<br>

Matt, your musical preferences does not matter. How many notes do you have to change to make music original? That discussion is absurd too. Jazz was never born with your "hands off my creation" stance.<br>

<a href="http://www.boingboing.net/2009/02/04/ap-tries-to-shake-do.html">http://www.boingboing.net/2009/02/04/ap-tries-to-shake-do.html</a><br>

<a href="http://www.boingboing.net/2009/02/09/milton-glaser-weighs.html">http://www.boingboing.net/2009/02/09/milton-glaser-weighs.html</a></p>

 

<p>Sven: exactly my point. The photographer didn't sue the painter. The AP didn't sue the painter. They just pointed out that he derived his widely consumed work directly from their photograph, and that he didn't ask. He's suing <em>them</em> because he's a publicity whore (evident if you follow his career). Don't you understand the difference between seeing a photograph and saying, "Huh, I really should paint a picture of that same guy, gazing heroicly into heaven, and offer it up to my political party as campaign material... I'll have to make a study of what he looks like so I can best synthesize just the right expression," and "Huh, that photographer captured I a representation of my candidate, and I'm going to <em>copy it</em>, no need to bother with acknowledging the owner of the work that I'm essentially paint-by-numbers reproducing.<em>"<br /><br /></em>You'll notice that he also felt conspicuously obligated to make a big show of granting the campaign the <em>rights to copy and adapt his work</em> into other forms and variations. He scored media points by demonstrating his generosity in granting the campaign valuable license to use his painting, and many reporters swooned over that generous, copyright-related gesture. What a nice guy! So thoughtful, to willingly grant that license! Never mind that he never even asked the AP if they'd do the same thing on the photograph that he copied to make the work in the first place. Are you not seeing the hypocrisy?</p>

<p>What bothers me most is this socialistic mentality that not only permeates on this board, but other internet boards as well. The big bad AP picking on the poor lonely artist. I suspect that most of those defending Fairey are probably Obama supporters. They don't look at it as an infringment of a photograph, but more as an attack on their messiah. But then again Obama did say that we need to, "redistribute the wealth"!</p>

<p>Thomas: Of course the US version of modern economy is far superior, which is that when things go well for Banks and Auto companies, money goes into the shareholder´s pockets, and when things go bad, money goes from the taxpayer´s pockets to banks and auto companies. Interestingly, this could also be called "redistribution of wealth".<br>

Matt: whether the painter is a publicity whore is irrelevant. And no, I don´t see the hypocrisy. As I said before, you guys grew up in a country where you can get a patent on a ham sandwich. That´s gotta obscure judgment. And it does:<br>

John Cage's <em >4'33"</em>, a lengthy silent composition from one of his avant-garde performances, constitutes an original work for copyright purposes. This means that other composers who include silent tracks have made a <em >derivative work</em> from Cage's silence. Cage's representatives have served producer Mike Batt with a legal nastygram asserting that he infringed on Cage's copyright with his 60-second silent track on the latest Planets album. (BoingBoing)</p>

<p>This article (written by an IP lawyer, <a href="http://www.huffingtonpost.com/jonathan-melber">Jonathon Melber</a> ) is an interesting read and brings up a number of points relevant to this discussion. Not the least of which is that the photographer doesn't seem to have an issue with the poster and he claims that the AP has no copyright claim to his image:</p>

<p>http://www.huffingtonpost.com/jonathan-melber/the-ap-hase-no-case-again_b_165068.html</p>

 

<blockquote>

<p>Sven: exactly my point. The photographer didn't sue the painter. The AP didn't sue the painter. They just pointed out that he derived his widely consumed work directly from their photograph, and that he didn't ask.</p>

</blockquote>

<p>Matt, you are oversimplifying the circumstances to make your point. No, the AP didn't file suit (perhaps because according to Melber in the link above, they didn't have a case). But they rattled their sabers in the way that everyone does in this over-litigated society to see if Fairey would buckle and give them a cut of the money. The AP's comments on the issue make this pretty clear. They wanted money and were going to see if they could get some by making threats. If they didn't file suit, in my opinion, it is because they didn't have a case at all. Even in this pathetic lawyer-happy litigation festival we call a justice system, filing frivolous lawsuits is still a pretty quick way to get sued yourself. Fairey obviously thought that even without the AP taking him to court that he had enough of a case to counter-sue. Given their comments, and particularly if the claim that the AP holds no copyright to the image is true, I would be inclined to agree.</p>

<p>In general, I am against what happened here. But cases like these cannot be decided "in general". Every situation is different and must be judged as such. That is why we have stacks of court decisions a mile high to define what "fair use" is and what "copyright" means.</p>

<p>Because the AP is so heavily invested in the creation of information and the selling of its use (that IS what they do for living, and nothing else), they have an understandable interest - much like a company must protect its trademark in order to keep it from becoming diluted through common use - in being very clear that other people can't just do whatever they want with their material. If they didn't appear to care about that, they'd be setting a slippery-slope example. Whether or not they had <em>any</em> actual prospect of getting Fairey to pay a customary licensing fee for the use of their photograph, they certainly had good cause to say - out loud - that his work was derivative.<br /><br />Yes, we're in (way!) overly litigious times. But we're also in everyone-rips-off-"corporate"-media times. They are understandably protective of what it costs them so much to produce. A few weeks back, I ran into someone selling cheap repros of a (bad!) painterly rendition of one of my photographs. Their answer to my request that they cease and desist? "Well, we found it on the web, so we thought it was OK."<br /><br />The AP is, like a voice in the wilderness, saying "That's NOT OK!" And I have to agree with them. This one is worth talking about because the Obama campaign made such high profile use of the work in question. So it's a good, readily discussed example of why people who produce derivative works should consider talking to the folks who own the original. Fairey, to me, seems to be operating under the "it's easier to apologize than it is to ask permission" model... except that he's not apologizing, either. This notion that because the photographer didn't consider his photograph to BE a work of fine art at the time he took it - and that only Fairey made it valuable - strikes me as a flimsy excuse for writing off the importance of the copyright.</p>

<blockquote>

<p>This notion that because the photographer didn't consider his photograph to BE a work of fine art at the time he took it - and that only Fairey made it valuable - strikes me as a flimsy excuse for writing off the importance of the copyright.</p>

</blockquote>

<p>That may be. But the notion of the photographer saying "Hey, I don't care about the poster and I do not want to be any part of this. Plus, the AP has no copyright claim to my image" is a <strong>staggeringly</strong> good reason.</p>

<p>You, me, and everyone can disagree with the photographer's stance. But if he doesn't care how his image is used, that's his business. Unless the AP turns up with a signed contract showing different (and the fact that they haven't and haven't filed suit would indicate that they have no such contract), it's the photographer's call to make.</p>

<p>It seems rather improbable that there would be <em>any</em> ambiguity (in the minds of the photographer or of the AP) about whether his work is "for hire," and if not, whether his license to them is exclusive or in any way limited. I mean, it's news work. This area is ultra-super-duper cut and dry, with generally iron clad contracts all around. Don't seem like it would be much work to get that settled, do it?<br /><br />Let's separate the issue of his employment/contractual status from the larger issue of whether or not a painter producing a derivative work should be determining (before hundreds of thousands of reproductions are bought and paid for) whether he's within ethical - to say nothing of legal - bounds. It really doesn't matter to me whether the photographer or the AP is the copyright holder. He didn't ask either one of them. And as mentioned, neither one has taken action (beyond a finger wag) towards Fairey. If the photographer's right, and it's up to him to determine to whom he licenses the image - and he just doesn't care - that's fine. If it's up to the AP, and they care (enough to make a statement, but not enough to break out the lawyers), then that's fine, too. What's <em>not</em> fine is Fairey making up his own rules. Because that means he's just as welcome to do the same with anyone else's work.</p>

<p>I'm not saying that I disagree with you in the big picture (subject to whatever court decisions exist over the definition of 'fair use'). But the fact is that I don't think we can successfully or usefully debate this sort of thing in a general sense because so much of what makes something cross the "wrong" line is different on an individual case by case basis. We can't successfully debate "ethical" bounds in this case any more than we can successfully debate them on any topic. Ethics are a personal decision. We can all state our opinions, but it is highly unlikely that we will find any useful conclusions that we can all agree on. Which leaves us with the legal argument.</p>

<p>While I may not personally like the result, the copyright holder makes these decisions, not me. And if the AP didn't file suit and hasn't turned up a contract showing that they control the image, I tend to think that they were just trolling for an easy paycheck. After all, according to Fairey's statements, the AP should have a slam dunk case. It's sort of like the Barry Bonds thing. If you really didn't do all that stuff, then let's see the lawsuit against the guys who wrote the book accusing you as a cheater. What's that, no lawsuit? I guess you didn't have a leg to stand on.</p>