In Fairey v. Associated Press, the "fair use" litigation commenced by artist Shepard Fairey involving portraits of Barack Obama, the Associated Press has filed its answer and counterclaims, accusing Fairey of copyright infringement and disputing his claim of "fair use".
Answer and counterclaims
[Ed. note. As faithful reader "Shane" points out, the photographer who actually took the picture does not agree that Associated Press owns the copyright in the photograph. -R.B.]
Commentary & discussion:
Excess Copyright
Lisa Borodkin Blog
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14 comments:
He copied the most substantial part of the photograph for commercial and political purposes, depriving the AP of revenue they would have received had all the merchandise he's selling had been licensed. He's giving tons of it away for free but that's the sort of thing you could negotiate in licensing, no?
I'm no lawyer, but I think the fair use principles are against him.
This was clearly a "fair use".
@ Christopher:
The work is clearly transformative, transforming a nice **news** image (the contents of which were not created by the photographer, not the pose, not the back ground, not the subject, not the suit or tie, not even the found lighting) into an iconic image that is different in feel and purpose and appearance, so much so that neither AP nor the original photographer ever noticed on their own that Fairey used the AP photo as a source, in spite of the ubiquitousness of the HOPE poster.
AP, however, even claims to have a copyright interest in the "patriotic theme" of the photo. What they left out, though, is that their copyright interest in the photo is disputed by the actual photographer.
http://thomashawk.com/2009/02/the-associated-press-says-that-they-own-famous-and-iconic-shepherd-fairey-obama-image-photographer-manny-garcia-says-not-so-fast.html
"In terms of the APs claim of ownership of the image, Garcia states that he was not a staffer for the AP when he took it, that he wasn’t even an AP freelancer, but rather a temporary hire with no contract and that the ownership of the disputed image belongs to him.
And I think he just may be right on this. Without a contract with him signing over his rights to his photos to AP, as far as I’m aware Garcia ought to own the rights to his work."
Thanks for reminding us of that, Shane; I've referenced your contribution in the main article.
That's pretty funny that the photographer is claiming ownership of the photo himself!
That certainly changes things.
I understand it's transformative, but for all we know all he did was load it into Photoshop and slapped on a couple filters. Is that transformative enough? Thinking of the 'purpose' of the use, is copying a photo for a political campaign legitimate? Which is beside the fact that he's selling them.
I don't know, I'm still on the fence about whether it's fair use or not, but that's just my personal opinion.
Christopher:
What's happened here is not merely "copying a photo for a political campaign", but taking a photo from one setting, modifying it in significant ways, and putting it to use for a totally different purpose, one for which the original was totally unsuitable.
Furthermore, who cares if the transformation process is simple or complex?
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@Christopher,
The transformative nature of the poster is so great that neither the AP nor the original photographer ever noticed on their own that the poster was based on their image. The amount of time it took to make the transformation is irrelevant, if it wasn't, you'd have to deny that the original copyright was in valid since it only took 1/60 of a second or less to actually snap the original photo. So, clearly, the amount of time isn't the issue, the realization of artistic vision is. Note, too, that AP is claiming ownership of an image even though they had nothing to do with the setting or the objects in tableau, yet you have no problem with AP claiming ownership of the tableau as shown in the photo, for it is that tableau--and even the "patriotic theme" that AP claims ownership of and that Fairey transformed.
This is such an obvious case of fair use that it boggles the mind that AP is stupid enough to be making this claim.
I really wonder if they would have sued, had not Fairey and the fair use bar sued first.
I truly expect that this case will be settled early in the game, like shortly after the first conference when the judge reminds the Associated Press's lawyers about Rule 11.
@Christopher:
If you really want to put this in perspective, the most dramatic visual presentation of just how ridiculous the AP claim is comes from Lawrence Lessig in a presentation he made in late February.
Blip.tv link
All in all, it's a great presentation. It really gets fun at 1:36 or so where he starts talking about Shepherd Fairey. It is a presentation very worth watching, especially when he gets to the actual poster and the source photo.
The presentation goes on from there and is generally along the lines of what you might expect from someone as plugged into copyright as Mr. Lessig. I recommend you give it a quick look.
If the AP paid the photographer for the image, or the work used to create the image, whether as a temporary employee, contract employee, or general full-time employee, isn't it likely that they may claim that the image was produced as a "work made for hire"?
(I'm not disputing that the photographer is claiming ownership, merely that he could be mistaken.)
On a related note: There is an interesting Wikipedia article about the famous iconic Che Guevara photo taken by Alberto Korda. It has been widely exploited politically and commercially for over forty years; and has become one of the world's most popular images. Even though Korda did not rigorously defend his copyright during his lifetime, his heirs are now attempting to do so (albeit only against parties using the image in ways they don't approve of).
I'll leave it to the lawyers to determine if using Obama's image in a highly stylized derivative work constitutes "fair use" under the law. Morally, my gut says that it is. Free political speech would be harmed if we weren't able to use popular iconic images to express our viewpoints visually.
Did my comment not go through? Blogger keeps giving me errors.
@ Shane, by "running it through Photoshop" rapidly, I mean that sort of image could be done easily in Photoshop, with little effort, with no artistic vision, for the sole purpose of creating a piece of merchandise for sale from somebody else's work. Fairey didn't necessarily put any more thought into the "tableau" than the AP did.
They claim ownership because it was work performed for hire. I guess that's disputed now so we'll see.
I watched the TV link--hilarious. He makes a really good point that the AP's photo of Obama is very non-unique, and so Fairey could have taken any one of those photos and created a practically identical poster.
On that note, I agree it's a fair use.
@ Christopher,
Artistic vision can look easy in 20/20 hindsight, just as inventions can. Lots of things seem obvious or easy once somebody has thought of it and lead the way, but until then they are not. The popularity, resonance and striking nature of the HOPE poster is proof that there is a *strong* artistic vision behind the poster, and as we can see by Lessig's demonstration of a website that attempts to automate the process, it isn't as easy as it looks and none of the examples he provides have the same iconic quality as the HOPE poster.
Haha. At this rate it seems almost likely that Obama will step in and claim he owns the copywrite because it is a portrait of him.
This is really all pretty ridiculous. I would honestly be surprised if this case is ruled against Fairey.
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