Is Anything In Shepard Fairey's Image Actually Copyrightable By The AP?
from the searching...-searching...-searching... dept
With a lawsuit underway after the Associated Press accused artist Shepard Fairey of copyright infringement over his iconic Barack Obama poster (Fairey initiated the actual lawsuit, asking for a declaratory judgment that his image did not infringe, but that was after the AP publicly stated they were going to go after him for infringement), many are looking over the legal issues, and examining whether or not Fairey's use is fair use. In our initial post on the subject, it seemed pretty obvious that it was fair use, in large part because the AP didn't even realize it was an AP photo until someone else pointed it out -- suggesting that it was a transformative work, which represents a big part of the "test" for fair use.However, law professor Peter Friedman, has a very interesting look at some of the relevant case law, pointing out that courts have clearly said that the elements of a photograph that are copyrightable are only those elements created by the photographer. He quotes some recent court rulings that have found that the copyright only covers those specific things (e.g., "posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved"), but elements beyond that are not covered by copyright. Friedman then points out that Fairey's image uses none of those supposedly copyrightable elements.
Basically, Fairey used Obama's pose -- which was not set up by the photographer, thus not covered -- and changed pretty much everything else about the image. So, he's wondering, what in the iconic image actually is covered by copyright?
Fairey's poster was not a copy of the photograph. It used one element, the angle of Obama's face, and changed everything else from the photograph. I doubt the choice of the angle was a creative choice on the part of the photographer. First, I would be surprised if the angle was not forced on him by the place the photographic pool was required to be, and, second, the angle is so generic that I can hardly imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply painted a copy of the photograph, I'd agree that it was an infringement. But he didn't. He changed everything except the angle of the head. And surely the choice of subject matter for the photograph was not a creative one.
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Filed Under: copyright, fair use, peter friedman, photos, shepard fairey
Companies: associated press
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Without the picture, the end result would have been different.
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But of course that has absolutely fricken nothing to do with copyright. So thank you so much for smashing your fingers on your keyboard and enlightening us with your crap.
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Let's look at what Judge Leval had to say about the subject in 1990:
"I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."
So he gives us a check list for fair use. Please note that both Judge Leval and case law say this applies to literary, musical, and pictorial works. To count as fair use as "transformative":
1. The use must be productive.
2. The use must employ the quoted matter in different manner.
3. The use must employ the quoted matter for a different purpose.
Look at those pictures. 2 and 3 on the checklist are as obvious as a slap to the face. Given the meaning of the word "productive" in this context ("Yielding favorable or useful result; see constructive") I'd say 1 is also snagged.
It'll be an annoying legal battle but he's going to win in the end, as he should. Copyright is a Not Good Thing really, or at least is turning into one. If people can't be allowed to create works of art just because someone is greedy and wants money then that society is a sham.
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TRANSFORMATIVEWORKTRANSFORMATIVE WORKTRANSFORMATIVEWORKTRANSFORMATIVE WORK
Dear god people! You think someone is a hack for doing something so very creative yet so very simple, and then think he should be flayed even though he is well inside his legal rights as the case law shows!
Weird Harold is the worst of the lot so far! You should all be ashamed!
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And for those saying that it could be done in ten minutes in Photoshop: then do it. So what? Art is about impact, not about how long it took to create. Clearly, this image had some impact.
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Without the picture, the end result would have been different.
Even if that were true, it doesn't change the legal analysis above, that notes that there is no copyright infringement.
In the week that you've been posting comments here Harold, you've shown yourself to be near totally ignorant and almost 100% wrong on the law, economics, history, art and culture. What else could you be wrong about it? I can't wait to see what's next!
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None of the elements?
Really? He changed everything??? Looks like he only changed the colors and background to me.
Also, if the choice of subject matter isn't creative, it's no longer copywritable? I guess all candid photographs of people would fall under that category.
Weird stuff.
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Re: None of the elements?
I wonder what you would consider fair use?
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Re: Re: None of the elements?
If the "artist" has instead just looking at the image and hand drawn it, we wouldn't have this discussion. The reality is without the AP image, there would be no end product. The rest is just razzle dazzle to make you not think about that simple underlying fact.
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Re: Re: Re: None of the elements?
The fact is the photographer did NOTHING more than happen to click the shutter from the position he happened to be standing in at the moment that Obama happened to strike this pose. There was no artistry or creativity involved in taking this photo. He didn't pose Obama. He didn't plan or orchestrate this shot. This wasn't a creative endeavor or a planned work of art, it was a happenstance. Had another photographer been standing there snapping photos he would've got this shot by happenstance too. Odds are some other photographer or attendee from the event has this same photo one so close it could be mistaken as the same in their film or on their computer.
On the other hand, the "artist" did real work. He planned and efforted to turn this photo from what it really is, a fortunate snapshot, into a true work of art.
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Re: Re: Re: None of the elements?
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The Real Question Is...
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Re: The Real Question Is...
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And about those court decisions, well, it does make some sense to separate photojournalism from artistic photography. If the subject of the photo was a building, I bet it would be the architect claiming copyright infringement, not AP or the photographer. In this case no one has any legitimate claim on the subject.
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Infringement... dunno. Theft... yes.
First he DIDN'T paint anything. He did a few simple filter transformations in Photoshop. If he had painted a copy of the image then at least he could say it was "inspired by" the photo.
If he had used the image as a small part of a larger piece it would be fair use. But all the "artist added was some text. The poster is mainly made up of the photograph. It would not exist without the photograph!. The lighting is still present in the transformed image or else all that would be visible would be a silhouette of Obama's head, and the photographer chose the exposure. It can easily be argued that the "pose" is indeed generated by the photographer, as well as the angle. The photographer chose the instant to take that photo and thus picked the pose and the angle. No "pose" by a model or other subject is ever 100% decided by the photographer. Expecting or requiring it to be so is ridiculous. Does that mean a photograph of a tree or a horse is not eligible for copyright? Of course not. The same with the angle. The photographer worked within the constraints of the situation (his position and Obama's) and picked the instant to take the photograph.
Also Peter Friedman's speculations about "originality" are completely irrelevant. What law states that every element of a photograph has to be "original" for it to be copyrightable? Unless I miss my guess, there is no such requirement. Friedman's whole opinion sounds like something written by an art snob who automatically thinks the "artist" (thief!) is right.
Shepard Fairey is using that photographer's work in substantially recognizable form to make money. Therefore he should have paid for a license. He didn't, so he's a thief.
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Re: Infringement... dunno. Theft... yes.
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Re: Infringement... dunno. Theft... yes.
We don't know that at all. Look, this isn't the first time someone has posed in that position, and it won't be the last. That's a very inspirational, and even presidential, pose, so to think that without this picture that some lucky photographer stumbled upon, no one would have thought to make that poster, is naive to say the least.
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Re: Infringement... dunno. Theft... yes.
The photographer was SHOWN the image and DID NOT recognize it. It wasn't until someone TOLD him that the work was derived from his photo that he recognized it!
That pretty much shoots your 'RECOGNIZABLE FORM' argument straight to shit, doesn't it!?
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It's neither infringement or theft.
Illustrators have used clipped photographic reference since the invention of photography. It's established practice. As soon as the artist applied handwork to the image, it stopped being a copy of a photograph, and became the artist's image.
Granted, Shepard Fairey is kind of a tool. But he's absolutely in the right on this. Both the AP and the photographer are only looking for a payday.
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Re: It's neither infringement or theft.
I haven't seen anything that says Fahey is asking for money. As far as I can tell, he's just asking the court to clear his name, as the AP has already stated their intentions.
I wouldn't want that looming over me. I'd ask the court for help too.
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Re: Re: It's neither infringement or theft.
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Re: Re: Re: It's neither infringement or theft.
Oh, thanks, I'll go back to drinking coffee now. /shuts up
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This photograph would not exist without him, and I don't see how any fees associated with it should not be shared with him.
If you can't hold the copyright to your own face, how can you own any intellectual property?
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God, what is this ignorant keyboard smashing day?
How? I'll tell you how. You write an original song and put it in a fixed state. You write an original play and put it in a fixed state. You film an original movie and put it in a fixed state. Any other idiotic questions?!
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To put it another way, if the event, person, animal, or thing cannot be copyrighted, exactly how can a photograph of the even, person, animal, or thing be so copyrighted?
And even if you're photographing a copyrighted work, such as a painting, you're still only providing a visual description of the work. And allowing photographs to be copyrightable allows photographs of public domain art to reenter copyright, which is pure nonsense.
Why should anyone have copyright on the Mona Lisa merely because he or she took a picture of it. It's pure lunacy!
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So Cambells should be sueing the Warhol estate too
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not infringement, not theft
No real set up, no real control of the environment, and there fore, the photographer can only claim one second of time.
the poster artist used it as inspiration. Hardly anything but the pose and subject are similar.
stupid argument, holds no water.
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Monkeys
Absolutely none of those photos, even the most stunning or artful ones, should be copyrightable because, after all, they were random captures taken by accident by monkeys. Still our government, in all its wisdom, would declare that all these photos are covered by copyright.
The kicker wouldn't be this, or the absurdity of politicians bought and paid for by the monkey's guild. It'd be that we'd find Wierd Harold here arguing that no one could ever take any photo or paint any painting without paying the estate of a long dead monkey for the act of violating his copyright.
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Re: Monkeys
They don't control obama's image, they don't control obama's name, just the image they took at that second.
If you took the long dead monkey's picture and duplicated it and colorized it, then you still owe the dead monkey's estate money. Again, I have to assume that you have never produced anything of value in your life (work of art, music, or computer code, example). You would feel very different if people were ripping your work off every day.
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Re: Re: Monkeys
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Re: Re: Monkeys
I'm a software developer (almost 20 years now) and on the side I'm an artist (oils mostly) and a photographer. I make money at all three, but mostly at the software, and no I don't feel different though I've had images used, paintings reproduced (chinese art factories), and software pirated. Like with all your posts, you are wrong.
Study art Harold, and you'll find that copying (and modifying) prior works, has ALWAYS been a major part of art, in fact a large basis of all art and art forms. Copyright isn't protecting art, your work, or my work, it is slowly destroying it.
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Re: Re: Re: Monkeys
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Re: Re: Re: Monkeys
You don't feel the slighest bit ripped off when someone profits from your efforts? Hey then, sends me the original of everything you do and I promise you won't feel bad when I make money off them.
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Re: Re: Re: Re: Monkeys
Sure, I'd be upset if someone took my software and started selling exact copies of it as their own, but I'm not upset when someone takes my software, builds upon its features, improves it, and makes money off that. Well, ok, I'm upset that I didn't think of those features and improvements, but you know what I do, I improve and extend those ideas and incorporate them into my next version. It's competition, it's business, it's growth, it's reality. If they couldn't, if I couldn't, then we'd all be stuck with the software and systems we were using 20 years ago when I started.
With my artwork, my first and only concern with some chinese art factory copying my paintings was that their copies were inferior and might be mistaken by mine. I quickly ralized that it didn't matter, because anyone looking at $20-$200 mass produced chinese paintings isn't going to buy my originals at $2000+ anyway.
With my photography, yeah, if a major publication used some of it without credit or payment I'd bitch a fit. If I find a web site has used one of my images as is, or with minimal changes, I make a judgement call. Selling posters? Pay me a royalty or quit. Using it to pretty up their site or attract other business? Identify me as the photographer.
If someone altered it dramatically like this guy did though, why would I care? Even if I'd spent a day setting up a photoshoot and that was my one good shot, I wouldn't care beyond wishing I'd thought to do something like that, to make those creative changes. It's an entirely new entity, it's not competing with the original, it's not costing the photographer any income or any fame, it's actually doing the opposite and bringing him into the spotlight. I'd consider that a plus and I'd learn from it too. Maybe next time I took a photo I'd experiment with those alterations myself, learn, grow, and hopefully become a better and more diverse artist. I certainly wouldn't set back and whine and complain that someone had profited off my work.
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Re: Re: Monkeys
Once again, Weird Harold displays his ignorance of the law. If he had actually bothered to, I dunno, *READ* he might have noticed that the image itself is NOT protected by copyright law. Only the creative elements of the image that the artist had input on.
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www.reuters.com
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No. Close studies of the Reuters photo and the AP photo show that the Reuters photo does *not* match the Shepard Fairey image, but the AP image does.
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This is all even more silly...
http://en.wikipedia.org/wiki/Che_Guevara_(photo)
http://en.wikipedia.org/wiki/File:Fitzpatric kChe.jpg
Yes, the AP photo pose of Obama is nothing but a flipped right version of Che's pose in the Korda photo which you can see here:
http://www.rotorgraphics.com/cheobama/che-obama.jpg
And to prove all this, you can turn the AP Obama photo into a satirical copy of Fitzpatrick's Che Guevara's poster almost effortlessly:
http://www.rotorgraphics.com/cheobama/Fitz-Obama.jpg
Copyright really needs to be pitched when the lawyers start arguing over CRAP like this.
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AP doesn't get 1 of these a year, they probably get their work ripped off and misappropriated more than anyone. Everyone does it (prettying up websites), it's the nature of the web, right? But with thousands of these violations, this isn't a small leak of value but more of a flood of lost potential. Imagine if they did nothing to stem the tide. At some point, the newspapers and news sites online will say "we can't pay for your images anymore, because they are too common" and their entire business fails.
This case is maybe extreme, but it is very symbolic. It's clear from the image as presented that the original AP photo was used not as a sample, but as the digital guts of the end product. The artist wasn't inspired by the work, he just duped it and manipulated it. It isn't any different from a mash up or a music sample: You may play with it and manipulate it all to heck, but at the core it is still the original work. AP's business depends on jealously protecting their materials and maintaining value in their product. Without it, they are done.
It's the real issue of copyright and value - without value, much of this material would never get created to start with.
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Yes, you are right, the issue is of copyright and value. Because of copyright much of this material, many orders of magnitude greater in value than the original works, would never be created.
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If you want to take your own images of Obama (and the artist would have had many chances to do so over a 2 year plus campaign) he could have gone out, purchased the camera equipment, traveled to the events, snapped hundreds of images hoping to get one good one, which is what the AP snapper probably did. The copyright of the image is sealed the moment the shutter snaps, regardless of whatever value you might think the image has.
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That image saw limited use and brought AP limited income prior to it being transformed by the artist. Once it happened, and all this uproar and discussion occurred, its desirability and use vastly increased.
Following your interpretation of copyright the AP would have made less money and received less benefit from the image.
The instance the image is covered by copyright is immaterial, because this use is currently allowable whether you like it or not. The fact that every image is covered by a copyright law so misguided and easily abused is a sign that the law is flawed and put in place by the ignorant and the corrupt.
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That is so wrong it amazes me. We've suggested in the past that you learn the difference between price and value. Apparently you have chosen not to do so. So you display more ignorance.
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While I don't suggest wikipedia is a good source for all information, this is a pretty good summary of the concepts:
http://en.wikipedia.org/wiki/Value_(economics)
If you are attempting to imply social value, then it's just like the internet, with little or no actual value to mankind.
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Hilarious
When Mike posts about music copyright the overwhelming number of comments are of the anti-copyright, "all-of-the-music-should-be-free" type.
Not so fun when the shoe is on the other foot.
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http://lessig.blip.tv/#1830681
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Bah,
Big content pushes these copyright law extensions and interpretations because that helps them stay rich at the people's expense, and "creatives" blindly buy into big content's arguments because it fulfills their needs to feel special and deserve rewards and recognition for their every mediocre act.
I can tell you right now that Harold is either a shill for big content or when he was little he saw his momma looking to the heavens a lot. Harold, if the latter is the case, I hate to break it to you, but your momma wasn't thanking god for blessing her with such a talented little angel like she told you. She was praying that he would forgive her for lying to her average little child about the true quality of his work and extent of his abilities.
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Friedman misreads the case law
The Meshwerks case is a narrow ruling meant to apply to the evaluation of copyright claims for non-traditional elements. It wasn’t really an issue of the photos, it was the digital models.
Meshwerk assumed the models were copyrighted through the action of traditional copyright law. In such a schema, when an independent contractor provides an image, unless it is explicitly noted contractually as “work for hire,” the copyright remains with the contractor (photographer/cinematographer/videographer). Meshwerk loses because they didn’t contractually establish continued ownership of the models by incorporating a specific limited license that vested the copyright and usage rights (other than those licensed on a limited basis to Toyota) solely with Meshwerk.
To show the weakness of Friedman's analysis, one can consider two examples:
1) If the image he shows is, as he says, a digital Solara positioned on a pre-existing photo, who holds copyright to the photo it was positioned in? Certainly, adding a digital model, does not transfer ownership of the original copyright to Toyota… If we used his reading, it would seem to tell us that Toyota could take any photo insert the Solara model, and summarily dispose of the underlying copyright in the original image. That’s just laughably ludicrous. It would mean that there was essentially nothing copyrightable in a photograph. All I’d need to do is add some computer generated text to an image I purloin from the net, and I’m now safe from claims of infringement.
2) Someone holds the copyright to the final image of the Solara on its background. It does not exist in a legal vacuum. There are both trademark and copyright issues at play in that final image. If the court’s analysis were to be taken as broadly as he opines, we’d need to question whether anyone could indeed hold copyright to that final image or almost any image. In fact, we’d have a world where almost no-one’s vacation images would belong to them (through lack of the kind of creativity through design he cites). That’s clearly not the case.
Going further, his reading of “Rogers v Koons” isn’t worthy of a First Year, much less a professor of law. In point of fact, he is quoting “Rogers v Koons” to establish a lack of copyrightability here, when in fact, that case did exactly the opposite with regards to Mr Koons. More appropriately, he should look at the later “Blanch v. Koons” and “Campbell v. Acuff-Rose Music” for guidance. Those cases dealt with whether the new creation was “transformative” enough in its use of the already copyrighted and trademarked materials to constitute an independent work in which the original copyrights were no longer in force. The important principle at play is the way the two Koons cases, along with Meshwerks and Acuff-Rose help define the boundary of copyright - what “transformative” is taken to mean and who holds copyright to which elements.
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In this particular case the linchpin issues seem to boil down to the answers to two questions.
Is the original photo even eligible for protection under copyright law? Caselaw is far from clear where a definitive answer can be given If it is not under copyright law, the Fair Use Doctrine does not even come into play. If it is under copyright law, only then does the analysis shift to one of Fair Use. A transformative use is, of course, quite important, but it is generally limited to the first factor of the four factor test (by the way, the analysis does not have to be limited to just the four factors. The statute specifies them as a minimum, and not the entire inquiry).
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Without ...
So what? If Obama didn't run for office, the picture would never have been created. This isn't a question of the core inspiration.
If Toyota didn't build cars, you wouldn't be able to take a photo of them. That doesn't change the court decisions which have found that Toyota doesn't hold a copyright of every picture of all Toyota cars.
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Re: Without ...
You are making the mistake of confusing the subject matter with the image as an object. The car owner owns the car. The picture taker owns the picture.
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Just an observation
All this to create something which apparently is iconic of the presidential campaign based off of a photo the photographer didn't recognise as his own. This copyright wrangle reeks of money grabbing regardless of whatever legal issues are involved, at a time of a significant historical event it makes me wonder if it betrays some of the real problems in America.
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"That is so wrong it amazes me. We've suggested in the past that you learn the difference between price and value."
Are you saying value cannot be expressed in terms of price? It seems to me you are, and that is so wrong it amazes me.
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The best expression of value for an item is "what people will pay for it". Example if you sell a house: You have a price in mind (asking price) and you have offers (what people are willing to pay). The price you sell it for will likely be between those numbers. You may value your house more than the market, but in the end the market tells you what your house is worth today.
All other valuations are theoretical.
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Re: Re: Re:
I don't think it's ignorance though, but deliberate misdirection, as evidenced by your focus on the figure of 10 used in the guy's example, as if it were an actual sales number or estimate. Why not pick on the $10 figure, it's too low to support a business too. You're not that dumb, you're directing people to wikipedia, and making arguments using figures of your own.
No, you're making very deliberate attempts to confuse the issues, and it's obvious that you know you're wrong. What I can't figure out is whether you're just a troll having fun, an industry insider trying to confuse others who don't yet grasp basic concepts, or if you're really just Mike's alter-ego bantering with him to drive a greater discussion.
lol, just joking on that last one Mike.
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http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932
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Fairey does not like fair use unless he works under it.
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