Copyright Infringement And Obama's Iconic Campaign Poster
from the life-in-an-age-of-copyright dept
In one of my meetings last week in Washington DC, during a discussion on copyright, someone mentioned (in an offhand manner) that I should look into the copyright questions surrounding the rather iconic Barack Obama campaign poster that, by now, you've probably all seen:
Still, there may be some unresolved questions here. Considering that the work was done for hire by the Associated Press, it's possible that the AP might actually own the copyright on the photo -- and we've already seen that the AP has, at times, had a somewhat twisted view of copyright, especially when it comes to fair use. And, of course, with the Obama administration filling the Justice Department with big copyright supporters, perhaps the DoJ should begin investigating such infringement...
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, copyright infringement, mannie garcia, obama, poster, shepard fairey
Reader Comments
Subscribe: RSS
View by: Time | Thread
Wait a minute...
[ link to this | view in thread ]
Nothing will happen...
Hypocrites and propagandists.
* Which always brings me to wonder, who are the twits at the AP who keep writing stories about apparently driverless SUVs that kill and maim and run amok? Not one of these stories, that appear quite regularly, ever mention that a -human being- was behind the wheel.
[ link to this | view in thread ]
[ link to this | view in thread ]
Transformative
[ link to this | view in thread ]
Wouldn't this be considered a derivative work?
[ link to this | view in thread ]
Re: Nothing will happen...
You either need to get your head checked or start making sense.
[ link to this | view in thread ]
Re: Nothing will happen...
Live the X-Files, do you?
[ link to this | view in thread ]
It might be Fair Use, but I hesitate to call it Art. Five minutes with photoshop will give the same results (which is probably how much time he spent on this bit). Sadly, Shepard Fairey has been known to steal other people's work, make minor modifications and call it his own. He doesn't even bother to research the meaning or purpose behind the images he takes. Then when he's done publishing his image mods, he'll claim copyright and go after anyone else who uses similar source material.
For more info - http://www.art-for-a-change.com/Obey/index.htm
[ link to this | view in thread ]
Re: Wouldn't this be considered a derivative work?
A more interesting question in my mind (purely hypothetical since there is virtually no possibility this matter would rise to the level of a copyright infringement claim) is what is the nature of the contract between the artist and the Obama campaign organization? No matter who holds the underlying copyright to the original photo (likely the photographer, but the possibility of the AP cannot be dismissed out of hand), I would be very curious to read the artist/campaign contract to see how it handled copyright, warrant of title, and indemnification issues. My experience in licensing suggests that if a legal problem was to arise it would be the artist left holding the bag.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Poetic Justice
[ link to this | view in thread ]
But
[ link to this | view in thread ]
Re:
So, you're saying that something can't be considered "art" if it takes less than five minutes to create? That seems a rather silly assertion. Especially considering the time it would take a Photoshop expert to create something like this versus a novice.
[ link to this | view in thread ]
Re: Re: Nothing will happen...
I submit Fox News for your consideration. My understanding is that it is the highest rated news network. Ratings mean $$$. It is typically considered to have a right wing bias.
So if a right wing bias = $$$, wouldn't news organizations have to value their biases over $$$?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
The nice thing about computers is that the degree of transformation is not dependent upon the time spent doing it.
[ link to this | view in thread ]
Re: Re:
I agree. There's an anecdote involving Picasso late in his life. He whipped up a drawing and told the reporter (I think) that it would sell for so many thousands. The reporter was incredulous and said that it only took him five minutes to create. Pablo said, "No, it took eighty years."
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
Just because you can replicate the comic in 5 minutes doesn't mean that's how long it took.
[ link to this | view in thread ]
I was very surprised when I saw it. But I suppose the younger generation of voters don't recall those images.
[ link to this | view in thread ]
More likely that it generally takes more than some quick photo manipulation. After following that posted link, I can see where the commentator is coming from.
[ link to this | view in thread ]
Re: Nothing will happen...
Once again, cast the blame on someone/thing else. The humans responsible are not the problem. It is the method. I always laugh at these stories/reporters. "A vehicle, occupied by Brian Elser, ran over Edith Brown." Cars are the problem. Guns are the problem. Not the idiots using them.
[ link to this | view in thread ]
Re: Re: Re:
I agree it doesn't really matter how long it takes to create a piece of art. A photograph can be a piece of art, but only takes milliseconds to capture 8though the skill to know what to capture and how can take many years). It sounds like we have a lot of jealous would-be artists here who wish they could create something as timely and resonant as this picture, even if they don't like it themselves.
[ link to this | view in thread ]
Faking...
I'll bet a fresh photo would be comfortably left-leaning!
[ link to this | view in thread ]
Not the same
In the picture it looks like he is listening to a question from the audience on why he can't provide an actual birth certificate to prove he was born a US citizen.
[ link to this | view in thread ]
Faking to the right, I mean.
[ link to this | view in thread ]
Would have been a more realistic picture of what the next 4 years hold in store.
[ link to this | view in thread ]
Re: Re: Re: Nothing will happen...
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: But
;-)
[ link to this | view in thread ]
Not that Simple
[ link to this | view in thread ]
Re: Transformative
Compression is applied, pixels and sounds get de/re/coded. And at the end it is probably the whole new creation? Or do I miss something here?
[ link to this | view in thread ]
Re: 5 minutes
[ link to this | view in thread ]
Re: Re: 5 minutes
Again, so what?
[ link to this | view in thread ]
[ link to this | view in thread ]
Toys a hack
http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html
[ link to this | view in thread ]
Re: Wait a minute...
[ link to this | view in thread ]
Re: Wouldn't this be considered a derivative work?
Look at this.
http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
It depends upon the contract. Corporations are usually savvy enough to claim the copyright (it's then a 'work for hire') while individuals aren't (which is why your mom's baby pictures are still under copyright by some defunct photography studio.)
[ link to this | view in thread ]
Re: Nothing will happen...
[ link to this | view in thread ]
The right to copy
This period of exclusively has steadily lengthened over time through ever more restrictive copyright laws, at the expense (quite literally) of the public's interest; to the degree that the public's interest is often seen as subordinate or secondary.
This notion is antithetical to the very idea of how cultural works are shared and appreciated by society in common; and contrary to how the law was originally conceived.
Copyright wasn't meant to deprive or even prevent an artist from creating or owning his own original works. It was meant to be a lease bestowed upon the artist so that he or she could benefit commercially from his or her works. The trade off for this privilege is that the public would also benefit by the arrangement as well.
"Fair use" is measure that, in part, reflects the acknowledgment that inspiration does not spring from a vacuum but comes from the works of others. It is meant to accommodate other concerns of course, but sadly its scope has been similarly diminished over time.
Unless we come to a more rational, balanced perspective on this legal arrangement, we risk depriving ourselves of the very things we point to when we talk about our culture.
The Obama poster, the subject of this article, is a perfect example of this. Do you suppose we would have had the Obama poster at all, if the copyrights at issue were zealously guarded by the owners?
Possibly. But less likely.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
fair use
http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and -the-art-of-appropriation/
[ link to this | view in thread ]
Fairey's Copyright Infringement
Fairey has indeed violated copyright laws. This image and the money he made from it, constitutes copyright infringement. One can make a case for it being derivative work which means a financial settlement is due either the photographer or AP.
Fairey has a history of copyright infringement, and AP should hold him financially accountable.
Let's see if communist party supporter, Fairey, will "spread the wealth" he earned for art he never really created.
If we allow Fairey to get away with this, then we open the door for other works to be used in this manner. Enforcement of Copyright laws and prosecution for copyright infringement should not be limited to those of one political party with exceptions being made for those of another party.
[ link to this | view in thread ]
Fair Use
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]
[ link to this | view in thread ]
You can be certain if the McCain camp had done this, legal action would be taken.
NO political party should be above the law. No artist is above the law. No citizen is above the law.
[ link to this | view in thread ]
Fairey has no clue about fair use.
http://www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html
I have to agree with Sherwin. Many of Fairey's references are not fair use. To be fair use the images by Fairey have to comment on or parody the work that is being referenced and the majority of the public must be able to make that connection when viewing the art. Viewers should be able to know what is being commented on or parodied if fair use is done in the way it should be. Anything else is infringement.
Fairey has referenced works by artists and photographers that are not widely known so it is not fair use. People did not make the connection that Fairey was commenting on Mannie Garcia's photograph of Obama with Hope just like they did not know he was commenting on a poster by Rene Mederos when selling shirts with a slightly altered version of the Mederos poster. (he settled out of court on that one)
If Shep used Mickey Mouse or the Pepsi label people would make the connection and it would be fair use. (but he would not use a Pepsi label anyways since Pepsi is one of his clients). That is how fair use and parts of fair use like transformative works work. Fairey just finds a cool image and uses it look at how he used the SS skull on a shirt and did not even realize that it was the SS skull until he tried to sue Walmart for copyright infringement because they infringed on his copyright of the skull.
SuperTouch and the ObeyGiant site claim that Fairey is open about where he has referenced from because some of that info is in the Supply and Demand book. That is a poor defense to use for fair use because people should not have to pay $59.95 for a book about Fairey's art just to be able to find out the connection in his work. That is not how fair use works and I'm glad people are starting to point it out!
The only reason Jamie O Shea wrote the SuperTouch critique of Mark Vallen's Fairey critique is because two blog posts on the Boston Globe site just brought Mark Vallen's critique back into the spot light. Like Sherwin says it looks like they are just trying to do damage control before Fairey's big solo exhibit.
[ link to this | view in thread ]
"BAD GRAPHIC"
About the copyright issues, it's AP's call, despite their "staff" photog. not objecting. They are owed, at LEAST, payment (to be determined) by both the Fairey guy who "created" the poster and the Obama campaign who has used it heavily in merchandising, including to solicit the Presidency.
Whoever deems this image attractive, however, must also enjoy tours of morgues. The color options in this thing are truly horrible: depressing, depressed, the color of the negative (or, "morte"), deconstruction-run-amok.
[ link to this | view in thread ]
CURIOUS, THOUGH:
[ link to this | view in thread ]
Fairey Fails at Fair Use
People are outraged because the same thing that happened to the music industry is now trying to happen against the visual art industry. Contrary to popular belief for many of us art is a business. We create out of passion and if we can profit from it good. But how can an artist profit from hard work and dedication if an artist like Shepard Fairey can take from that work and do what he sees fit to it FOR PROFIT while holding on to a fragile foundation of fair use. If we follow Fairey's idea of fair use all images would be up for grabs. He tends to use images that are not widely known. That is why fair use does not apply. The photograph of Obama itself was not a widely known photograph.
I'm personally sick of people using Warhol and others to defend Shepard Fairey. Warhol used images that the public knew of. Everyone knew that his Monroe's were a comment/parody of the famous photograph. The same thing goes for the soup cans. Under fair use today it would be perfectly acceptable to do that. Fairey failed at fair use because people did not make the connection between the photograph and his posters. That is because the photograph itself is not widely known. In order to claim fair use you almost have to use an iconic image as the foundation of the new work. Fairey is only saying it is fair use to cover himself and he is not doing a very good job of that.
Since he donated over $400,000 to the Obama campaign from his profits selling the posters I hope that he will have to give $400,000 to the AP if indeed they are the copyright holder. I also think that members of the Obama campaign need to be questioned and perhaps included in any copyright infringement case that comes of this. Workers from the former campaign are now saying that they never suggested a photograph to Shepard Fairey but other articles from last year suggest the opposite. Either Shepard Fairey is a liar or the former Obama workers are.
If this case goes to court and Shepard Fairey loses to the AP it will be a great win for artists who support copyright protection. It will help to define the limits of fair use... which ARE LIMITED in the first place. Copyright laws were not made to protect people who willfully steal. They were made to protect creators so that they will continue to create knowing their work is safe. If you have not noticed there has been a boom in the number of artists since strict copyright laws have been around. Copyright creates an environment that respects creativity. People would not openly show their works if they thought someone could use it without giving them credit.
Maybe Obama will make a statement about the importance of copyright laws. I think he should apologize for supporting a poster that violated a US law. If he can take the time to send Fairey a personal letter thanking him for his images and for putting work on stop signs I'd think he can take the time to address copyright and why we have it in the first place.
The poster failed at fair use because people did not make the connection with the original image. The basis of fair use is that you comment or parody another work. If that connection isn't made fair use does not apply. Saying that the public or the AP is silly for not making the connection only helps strengthen the case against Fairey. Keep it up.
There is only three reasons people defend Fairey. They are fan boys. They think a slam against the Hope poster is a slam against Obama. Or they don't care about copyright in the first place. If this was just some kid posting altered AP images everyone would agree with APs choice to seek compensation.
There are many artists who have alleged the same thing about Fairey. So if AP wins it will open the doors for others to file against Fairey. The guy could be a pauper before it is over and it is because of his poor choices. He should have learned after settling out of court when he infringed on the copyright of Rene Mederos.
[ link to this | view in thread ]
Change You Can Xerox
[ link to this | view in thread ]
"People are outraged..."
What a load of malarkey. You're argument is dissembling one-sided "advocate speak", which leads me to suspect that it's jurisprudence involvement that has exacerbated this issue of "reproduction and use" that had done more to polarize this issue—it certainly has helped to distort the term of exclusive copyright well beyond any reasonable measure.
Most artists I know (and I actually do a few because I happen to be one) aren't nearly as restrictive and exclusionary as you seem to suggest. To the contrary, they almost always tend to be excited by others who been inspired by their work which is precisely the reaction that the photographer had (not AP) towards the poster if you recall.
You are likely a second party to art and the creative process, at best. Regardless, you've distorted the picture for the sake of an abstract, overly simplistic proposition - which is common of political discourse du jour.
[ link to this | view in thread ]
Re: Fairey Fails at Fair Use
"People are outraged..."
What a load of malarkey. You're argument is dissembling one-sided "advocate speak", which leads me to suspect that it's jurisprudence involvement that has exacerbated this issue of "reproduction and use" that had done more to polarize this issue—it certainly has helped to distort the term of exclusive copyright well beyond any reasonable measure.
Most artists I know (and I actually do know a few because I happen to be one) aren't nearly as restrictive and exclusionary as you seem to suggest. To the contrary, they almost always tend to be excited by others who been inspired by their work which is precisely the reaction that the photographer had (not AP) towards the poster if you recall.
You are likely a second party to art and the creative process, at best. Regardless, you've distorted the picture for the sake of an abstract, overly simplistic proposition—which is quite common of political discourse du jour.
[ link to this | view in thread ]
hey
[ link to this | view in thread ]
Re: Re:similar results can be obtained with a bit of masking
Please. Otherwise you are as you state.
Friendly challenge,
Erial
[ link to this | view in thread ]