AP Demands Money For Iconic Obama Poster Image

from the asking-for-a-fight dept

Wed, Feb 4th 2009 6:01pm — Mike Masnick

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.

barack-is-hope

Yes, the Associated Press is now claiming that the use of its image is copyright infringement and is demanding payment. Of course, it's probably worth pointing out that, until a week and a half ago, the AP had no idea that the poster was made using one of its images. If that's not a transformative (i.e., allowed) use of the image, it's difficult to say what is. Given the posturing on both sides, it doesn't look like Fairey (who's smartly being represented by Stanford's Fair Use Project) is going to back down. Hopefully, the Associated Press is finally taught what fair use means. It could use the education.

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
Companies: associated press

45 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 4 Feb 2009 @ 6:09pm

Another Missed Opportunity
AP does not get it.
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.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 4 Feb 2009 @ 6:47pm

Bright Side?
Maybe this will make the BHO administration a little more sympathetic to fair use?
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 6:48pm

In a purely legal context the AP does have a fairly strong case. A defense of fair use would likely fail under the present circumstances.

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.
[ link to this | view in thread ]
Couch Lurker, 4 Feb 2009 @ 6:53pm

Relevance?
"Of course, it's probably worth pointing out that, until a week and a half ago, the AP had no idea that the poster was made using one of its images."

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*?"
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 7:18pm

Missing Tag
FYI-it looks like the second paragraph is missing the opening
paragraph tag.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 7:21pm

AP didn't create it. The creator didn't give a damn, and in fact was actually quite pleased about it all. AP have acquired the rights to it cause the photographer was employed by them. That does not make them creators. They've got a pretty sound legal grounds to sue, but your example of copying something you've created is hyperbole. I want you to tell me who benefits from this legal action, because I can't see any good outcome from this whatsoever.

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?
[ link to this | view in thread ]
ChurchHatesTucker (profile), 4 Feb 2009 @ 7:27pm

Re: 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"?"

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.'
[ link to this | view in thread ]
Dan, 4 Feb 2009 @ 7:34pm

So you're all dismissing the transformation argument?
So you're all saying that the transformation of the actual photograph into a derivative work isn't worthy of copyright in it's own accord?

You all just shot 90% of the arts in the foot.
[ link to this | view in thread ]
Paul Brinker, 4 Feb 2009 @ 7:38pm

Keep in mind that this is not a "copy". The source image cant be mistaken for the image of Oboma in a "pose" that most likly has been seen by many many people.

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.
[ link to this | view in thread ]
Couch Lurker, 4 Feb 2009 @ 7:40pm

Relevance?
"Are you seriously suggesting that the AP was unaware of the poster? Really?"

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.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 7:41pm

according to ap logic, obama should sue for having his picture taken.
[ link to this | view in thread ]
Scott, 4 Feb 2009 @ 7:42pm

Fair Use.
I would think this image has been transformed to the point that it is well within the fair use standards, even though they are rather broad. Imagine having this conversation about Andy Warhol's body of work...
[ link to this | view in thread ]
ChurchHatesTucker (profile), 4 Feb 2009 @ 8:07pm

Re: Relevance?
"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."

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.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 8:09pm

it is transformed
Surely the photographer saw the image many times and did not recognize it. That alone suggests that it was substantially transformed.
[ link to this | view in thread ]
Beef Supreme, 4 Feb 2009 @ 8:19pm

Idiocy
Just another example of the idiocy of those who misuse copyright law.
[ link to this | view in thread ]
Cheetos Under the Couch, 4 Feb 2009 @ 8:22pm

Re: Relevance?
Couch Lurker -> "then sold it off for a profit,"

Who sold what for a profit to whom ?
[ link to this | view in thread ]
Rose M. Welch, 4 Feb 2009 @ 8:36pm

Re: Relevance?
Idiot Couch Lurker:

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.
[ link to this | view in thread ]
jo mama, 4 Feb 2009 @ 9:10pm

Re: Re: Relevance?
because you broke the law you defend someone who broke the same law, therefore it's ok. did you ever hear of jack the ripper.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 9:14pm

link to original photo
http://la.metblogs.com/2009/02/04/ap-tries-to-shake-down-shepard-fairey/
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 9:39pm

Re: Re: Re: Relevance?
Did you ever hear of capitalization and punctuation? Your shift key is not vestigial.

I can't even tell what it is you're trying to say.
[ link to this | view in thread ]
I'm so confused, 4 Feb 2009 @ 9:57pm

Re: Re: Re: Relevance?
"because you broke the law you defend someone who broke the same law, therefore it's ok. did you ever hear of jack the ripper."

Who broke what law ?
Jack is guilty of copyright infringement ?
I dont get it
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2009 @ 10:02pm

...Hopefully, the Associated Press is finally taught what fair use means. It could use the education....

or a kick in the @$$!
[ link to this | view in thread ]
Phil, 4 Feb 2009 @ 10:47pm

It's Transformative. It's Common Sense
You put those pictures in front of a jury of regular joe types, and I have no doubt they would agree to the idea that the artist created something different than the photograph, but that he used the photograph for inspiration. That's transformative.
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.
[ link to this | view in thread ]
Mike (profile), 4 Feb 2009 @ 11:13pm

Re: 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.

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.
[ link to this | view in thread ]
Phil, 5 Feb 2009 @ 12:55am

Copyright Infringement
In my opinon, the work on the poster is tranformative and, as Mike mentioned, the owner of the original image didn't even recognize that the poster was a tranformation of their orignal work.

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.
[ link to this | view in thread ]
Matt, 5 Feb 2009 @ 5:53am

O RLY AP?
Maybe it wasn't even their photo...
http://www.reuters.com/article/RCOMUS_NWS/idUSRTR23GLF
[ link to this | view in thread ]
Esahc (profile), 5 Feb 2009 @ 7:49am

Re: So you're all dismissing the transformation argument?
I am an artist and I say 90% of "artists" need to be shot in the foot; same as 99.999% of lawyers need to be shot in the face.
[ link to this | view in thread ]
Chris Dymond, 5 Feb 2009 @ 8:10am

How many photos are there...?
So AP own a photograph of Obama looking in the same direction with lighting from a similar angle?

Wonder who else does - there must be millions of photos of him out there....
[ link to this | view in thread ]
nasch, 5 Feb 2009 @ 8:18am

Re:
On the other side too, the artist was kind of foolish or ignorant. Even if his fair use defense holds up, I can see the copyright notice on that photo in the thumbnail view. Did he not notice it? Does he not know what copyright means? Has he not noticed how zealously some guard their copyrights these days?

I'm not saying the AP is making a good decision here, but that the artist made a bad one.
[ link to this | view in thread ]
Yakko Warner, 5 Feb 2009 @ 8:21am

Re: O RLY AP?
Nice find.
[ link to this | view in thread ]
Yakko Warner, 5 Feb 2009 @ 8:30am

Re:
Exactly. (See Matt's link to the Reuters photo in another comment.)

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.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 9:01am

There seems to be some confusion concerning the significance of the words "transformative" and "derivative". "Derivative" is defined in the copyright laws as a new "work" that is based in part upon a previously existing "work". Thus, two works are involved. the originally existing work and the new work based on the former.

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.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 9:54am

Re:
BTW, the "transformative" analysis is on a sliding scale (remember, people are making this analysis) ranging from "diddly squat" to "WOW, WOW, Ultra WOW".

In my unartistic opinion this poster tends towards the latter.
[ link to this | view in thread ]
Xiera, 5 Feb 2009 @ 11:16am

Re: Relevance?
The point is: if the holders of the copyright don't even recognise the copyrighted material, isn't that clear proof that it's transformative, and therefore fair use?
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 11:19am

Re: Re: Re: Relevance?
Ninety percent (if not more) of what you view in this world is a transformative work of something else, just like this poster and if you really can't thing of a better way to try and argue that what the artist who created this poster did is illegal than maybe you should be quiet while the grown-ups talk.
[ link to this | view in thread ]
Xiera, 5 Feb 2009 @ 11:27am

Re: So you're all dismissing the transformation argument?
In what way does Fairey's art attempt to displace the AP's photograph?

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.
[ link to this | view in thread ]
Xiera, 5 Feb 2009 @ 11:30am

Re: Re:
I think to be covered by Fair Use, you still have to cite the original work's copyright. As an example of this, think back to writing reports in school -- you need a bibliography to cite the copyrights of the works you quoted.
[ link to this | view in thread ]
Mike (profile), 5 Feb 2009 @ 2:34pm

Re: Re: Re:
I think to be covered by Fair Use, you still have to cite the original work's copyright. As an example of this, think back to writing reports in school -- you need a bibliography to cite the copyrights of the works you quoted.

You're confusing plagiarism with copyright. The two are separate things.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2009 @ 7:05pm

The linked article has been updated and can be read at:

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.
[ link to this | view in thread ]
anymouse, 6 Feb 2009 @ 12:32pm

Are there NO other pictures?
So can nobody find any other pictures of Obama in a suit an tie looking up and to his left? How do we know the created image is based on this specific picture (other than the artist admitting that he used it for inspiration), and even if it is, can't we find 5, 10, or 50 OTHER pictures of Obama looking up and to his left that could also be suing?

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?
[ link to this | view in thread ]
Mike (profile), 8 Feb 2009 @ 9:57pm

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
[ link to this | view in thread ]
Lloyd Shugart, 15 Feb 2009 @ 4:53pm

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
[ link to this | view in thread ]
happy, 19 Mar 2009 @ 3:45pm

using someone else's image
I am a photographer & have had my images used in someone elses art - & it pisses me off. If they had given me credit for the original image - & let me know about it - I could have had the opportunity to say yes or no.

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.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2009 @ 6:39am

Re: Relevance?
I think 'worth pointing out' was meant to identify the fact that it IS a fully transformative work, and that even the AP was unable to determine that it was a derived work, until a outside source decided to track down it's origins.

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
[ link to this | view in thread ]
Anonymous Coward, 12 Jul 2009 @ 4:02pm

What I find ironic is that the AP claims to own Obama's image. Shouldn't Obama own Obama's image?
[ link to this | view in thread ]