AP Demands Money For Iconic Obama Poster Image
from the asking-for-a-fight dept
Just last week, we wrote about the question of whether or not the iconic image used on Obama posters that was created by street artist Shepard Fairey was copyright infringement. For a while, no one (including Fairey) could figure out what photo was the basis for the image. But a photojournalist tracked it down, and discovered it was by a photojournalist named Mannie Garcia, who was doing work for the Associated Press at the time. Garcia didn't mind at all, but as we noted in our post, the AP might take a different view on things, since it's so aggressive with copyright. However, even we thought the AP wouldn't be so stupid as to actually demand payment for the use of the image... but we were wrong.
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Filed Under: copyright, copyright infringement, mannie garcia, obama, poster, shepard fairey
Companies: associated press
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Another Missed Opportunity
What are we talking about here, assuming they win their case?
Maybe five figures ? - Chump Change
While on the other hand the value of publicity and good will is .... well they do not value it.
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Bright Side?
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Its legal position notwithstanding, I do have to wonder what the heck the AP is thinking. Is trying to make a "point" against the artist truly worth the negative publicity? I think not.
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Re:
I'm not saying the AP is making a good decision here, but that the artist made a bad one.
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You're confusing plagiarism with copyright. The two are separate things.
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Relevance?
Why is that relevant at all? If you created a piece of work, and I copied it, or a portion of it, *without your knowledge* then sold it off for a profit, would you simply say "oh, I didn't know you were doing that, I guess I missed the boat"? Not likely.
Usually this blog has some decent commentary, but once in a while, bits like this make me scratch my head and wonder "what were the editors *thinking*?"
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Re: Relevance?
Are you seriously suggesting that the AP was unaware of the poster? Really?
Assuming not, then they were unaware of the connection. As was the artist. Until somebody else made the match.
Somebody makes an *insanely* public use of your work, and you don't notice? I think that's pretty much the definition of 'transformative.'
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Re: Relevance?
Who sold what for a profit to whom ?
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Re: Relevance?
As others pointed out, it's relevant because it highlights that the work was transformative, rather than derivative. Transformative works change the nature of the original work. If the owner of the copyright on the original doesn't even recognize its own work, then it seems quite reasonable to say that it's transformative.
Usually this blog has some decent commentary, but once in a while, bits like this make me scratch my head and wonder "what were the editors *thinking*?"
Well, now I've explained what I was thinking.
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Re: Relevance?
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Missing Tag
paragraph tag.
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The image created is iconic. It already belongs to the public in that respect. Locking it up won't do a damn to change that; it will only enrage people. Hoarding culture harms society, plain and simple. And before you rail off about the rights of creators, ask yourself this: is a world full of litigators jealously guarding their "property" and depriving people of their cultural heritage really the world you want to live in? Really?
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So you're all dismissing the transformation argument?
You all just shot 90% of the arts in the foot.
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Re: So you're all dismissing the transformation argument?
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Re: So you're all dismissing the transformation argument?
That's the point at the heart of the transformative versus derivative debate. Fairey's art is clearly a transformative work and is therefore protected by Fair Use.
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Can AP sue if someone had taken a photo that was really really close to the one that was used a source? (Oboma looking up?)
Its a really stupid lawsuit because the poster is NOT a copy of the picture, in any form.
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Re:
It would seem, by their logic, if the AP has a picture of the Eiffel tower, and I made a picture of the Eiffel tower in MS Paint (either by hand or based off my own picture of the Eiffel tower taken from more or less the same spot as the AP's photographer), then it's copyright infringement, even though that's just how the Eiffel tower looks.
Unless of course the AP can somehow prove they're the only ones that have a picture of Obama with his head tilted in that general direction.
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Relevance?
Not at all. The summary was suggesting as such. I find it hard to believe that AP would be unaware of something like this. However, that wasn't my point, now was it?
The summary claims that it is "worth pointing out" that the AP [supposedly] did not know about the use of the photograph. I fail to see why this is "worth pointing out" at all. Whether a company is aware or unaware of the use of the image is irrelevant -- it is still being used in the poster. *That* is the issue up for debate.
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Re: Relevance?
If you don't recognize your own work (or the work that you claim as your own) in someone else's, then that is pretty much the low-bar definition of "transformative."
Real-world check: This goes on ALL THE TIME. I've done it, everyone I know does it. Mozart did it. Duchamp perfected it. This is how art happens. If you're looking to lawyers for guidance, you're doing it wrong.
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Re: Re: Relevance?
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Re: Re: Re: Relevance?
I can't even tell what it is you're trying to say.
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Re: Re: Re: Relevance?
Who broke what law ?
Jack is guilty of copyright infringement ?
I dont get it
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Re: Re: Re: Relevance?
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Re: Relevance?
It's not irrelevant. The point being made was that the image was transformative, which is one of the ways something can be considered fair use. It was so transformative that neither the photographer or the company paying for the work realized that it was the same image.
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Re: Relevance?
The key point being it was a trans formative work, which is allowed ( to certain extents). This is not the sane as some one anonymously clipping, pasting it all over web page, and then the AP finding out later. Those photos would be fairly obvious, and direct misuse. This on the other hand, is more on the fine line of fair use, and infringementy
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Fair Use.
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it is transformed
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Idiocy
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link to original photo
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or a kick in the @$$!
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It's Transformative. It's Common Sense
Any of you IP pin-heads -- this means you "jo mama", who try to say that there's something infringing here (much less illegal), are clueless and lack even the sniff of common sense. More than likely, people like "jo mama" or "Couch Lurker" are going to say anything to defend the most twisted interpretations of IP law, simply because they have a buck to gain by doing so.
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Copyright Infringement
I can't see even one, single color in the poster that resembles the color scheme of the original, because it has been transformed. Although I doubt that Shepard Fairey would deny that the pose and posture makes it evident that the "image" IS from the AP photo, and admit that it is what he used for his inspiration ( as Phil said). It is an inspiring pose, even though I am not an Obama man. Bottom line: It is easy to discern that the poster is a transformation of the original AP image and it is far removed from the act of using the original AP to "make money."
Shepard Fairey did very professional work in constructing this poster. It has served well in representing Obama's campaign. I think that someone at AP might see claiming infringement might be a way to make a few easy bucks. This may sound strange, but I hope AP takes Shepard Fairey to court, so that the court can tell AP they are being foolish and commend Shepard Fairey for a job well done.
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O RLY AP?
http://www.reuters.com/article/RCOMUS_NWS/idUSRTR23GLF
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Re: O RLY AP?
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How many photos are there...?
Wonder who else does - there must be millions of photos of him out there....
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In this matter the author of the new work has apparently confirmed that his poster is based upon the original photograph (as to which the AP apparently holds copyright as a "work for hire"). Accordingly, it seems fairly clear that the poster is a derivative work, and thus would conflict with one of the several rights explicitly accorded by copyright law to the copyright holder of an original work (in this matter the AP photo).
If the legal inquiry stopped at this point that would be the end of the matter and the artist would be liable under the law for direct infringement of the derivative right held by the owner of the copyright on the original work. But the law does not stop there, for the copyright law does offer copyright infringers the opportunity to avoid liability if the infringer is able to raise and prevail on the defense of fair use. This defense, recited in the copyright law at 17 USC 107, sets forth a four (4) part inquiry that if satisfied by the author of the new work may afford the opportunity to avoid being deemed an infringer.
It is in the context of presenting a fair use defense that the transformative nature of the work may assist the alleged infringer the opportunity to satisfy the first prong of the four prong test. In other words, the more tansformative the nature of the work, the more likely that the alleged infringer may satisfy the first prong. However, it does have to be borne in mind that the alleged infringer is still not off the hook as the next three prongs of the fair use test still need to be satisfied.
I note the above merely to clarify that the mere act of creating a new work that is deemed to be transformative does not, in and of itself, avoid being held an infringer. Transformative is a term that arises as one of the factors to be considered when a defense of fair use is raised by an alleged infringer. Thus, a work can be incredibly transformative, yet still be deemed to not satisfy the remaining fair use tests.
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Re:
In my unartistic opinion this poster tends towards the latter.
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Re:
I note the above merely to clarify that the mere act of creating a new work that is deemed to be transformative does not, in and of itself, avoid being held an infringer. Transformative is a term that arises as one of the factors to be considered when a defense of fair use is raised by an alleged infringer. Thus, a work can be incredibly transformative, yet still be deemed to not satisfy the remaining fair use tests.
Of course, as is typical in an MLS comment, while technically true, you leave out the rather important fact that when the use is found to be transformative, it almost always outweighs all the other factors by a LONG shot. See this article for more of an explanation. No one said that the other factors don't matter -- but we were recognizing that if the work is transformative, the other factors tend not to have very much pull, and would need to be massively against the works' creators to matter.
http://www.huffingtonpost.com/jonathan-melber/the-ap-hase-no-case-again_b_165068.html
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http://www.google.com/hostednews/ap/article/ALeqM5hcqhpLfgHpcIipb1rVGvAoa5BusAD96560SG0
It adds some additional information to both the legal issues involved and the use being made of the poster.
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Are there NO other pictures?
I have a picture of Obama looking up and to his right, so I now OWN that image, right? And nobody can make any works of Obama looking up and to the right without violating my copywright, right? That's how the system works these days, isn't it?
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When is a photograph no longer a photograph?
We must answer the following riddle: When is a photograph no longer a photograph?
Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.
The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.
There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.
Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.
Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.
The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.
Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other--all remain perfectly distinct and identical to the original.
Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction--but photographic nonetheless.
We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.
http://bulk.resource.org/courts.gov/c/F3/207/207.F3d.1119.98-16061.html
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using someone else's image
In this case, the photographer says ok & AP says no. Who 'owns' the image in the first place?
This is a long-standing dilemma for artists.
Personally, I don't think there is much change in the image from photo to poster except in technique.
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