Is Anything In Shepard Fairey's Image Actually Copyrightable By The AP?

from the searching...-searching...-searching... dept

Tue, Mar 3rd 2009 2:05am — Mike Masnick

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.

barack-is-hope

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

61 Comments

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Weird Harold, 3 Mar 2009 @ 3:16am

Without the underlying picture (copyright to AP) would that poster have ever been created? In the end, it is just a rendering of the photograph with the background removed, a simple photoshop technique.

Without the picture, the end result would have been different.
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Just a guy., 3 Mar 2009 @ 3:37am

None of the elements?
"He changed everything except the angle of the head. And surely the choice of subject matter for the photograph was not a creative one"

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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Mikecancook, 3 Mar 2009 @ 3:56am

The Real Question Is...
which one do I dislike more? The AP or Fairey? It's really a case of wanting them both to lose.
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Nelson Cruz, 3 Mar 2009 @ 4:01am

Actually Shepard Fairey even slightly changed the tilt of Obama's head. It is not so straight in the photograph.

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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Stew, 3 Mar 2009 @ 4:04am

Infringement... dunno. Theft... yes.
--"f 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."--

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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Mike Farris, 3 Mar 2009 @ 4:16am

It's neither infringement or theft.
As a professional Graphic Artist, I can tell you that this image wasn't created by simply applying a Photoshop filter. The detail of the work on the facial features is too good. It was drawn.

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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some old guy, 3 Mar 2009 @ 4:24am

Re: It's neither infringement or theft.
Both the AP and the photographer are only looking for a payday.

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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explained, 3 Mar 2009 @ 4:51am

Re: Re: It's neither infringement or theft.
I think he meant the Associated Press and the photographer who took the picture for them.
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Anonymous Coward, 3 Mar 2009 @ 5:12am

My problem is that if you are going all copyright crazy, Obama should have the rights to his image.

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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Luci, 3 Mar 2009 @ 5:16am

Re: Infringement... dunno. Theft... yes.
No, definitely NOT Photoshop filters. If you really think that, you should go in for an eye exam and a new prescription. Looking at them side by side it is readily apparent that this was drawn, not manipulated.
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Ima Fish, 3 Mar 2009 @ 5:25am

I'm of the opinion that photographs of events and people are not copyrightable. If a verbal or written description of an event or person, i.e., a fact, is not copyrightable. How can a visual description be copyrightable? That's all a photograph is, a visual description of the event, object, person, etc.

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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some old guy, 3 Mar 2009 @ 5:26am

Re: Re: Re: It's neither infringement or theft.
I think he meant the Associated Press and the photographer who took the picture for them.

Oh, thanks, I'll go back to drinking coffee now. /shuts up
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Ima Fish, 3 Mar 2009 @ 5:27am

Re:
"Without the picture, the end result would have been different."

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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Ima Fish, 3 Mar 2009 @ 5:30am

Re:
"If you can't hold the copyright to your own face, how can you own any intellectual property?"

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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inc, 3 Mar 2009 @ 5:45am

Re: None of the elements?
Well I guess changing colors is how an image is created so that would be a step. If you actually look at the image you can see that Obama's body has been changed. Notice the smooth rounded shoulders. The angular lines on and around the tie. The Obama campaign symbol and the word hope as well as the tilt of his head. Plus the ears are perfectly round, but you wouldn't notice that because of your knee jerk reaction and no need to actually pay attention.

I wonder what you would consider fair use?
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Paul`, 3 Mar 2009 @ 5:47am

Re:
No, Your wrong.
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Anonymous Coward, 3 Mar 2009 @ 5:54am

Re:
And your point is?

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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Weird Harold, 3 Mar 2009 @ 5:54am

Re: Re: None of the elements?
If the "artist" had started with a blank canvas, there wouldn't be a discussion. The problem is that it is clear that the AP photo is the basis and the vast majority of the result "product". This isn't a painter looking at a photograph and creating his own version, rather someone taking a digital image and manipulating it with filters and other photoshop tools and techniques. This is very clear when you see that the highlights and tonal changes in the images are exactly the same.

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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Anonymous Coward, 3 Mar 2009 @ 5:57am

TRANSFORMATIVEWORKTRANSFORMATIVE WORKTRANSFORMATIVEWORKTRANSFORMATIVE WORK
TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE WORK TRANSFORMATIVE 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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Jeepsterguy, 3 Mar 2009 @ 5:58am

So Cambells should be sueing the Warhol estate too
This poster is no different than many representational pieces of art from the mid-20th century pop art era. Warhol and many artists like him did representational pieces of common everyday objects. There is no difference here. To waste the courts time with this is just ridiculous. I can understand, I guess, the artist insistence on wanting to head this off, after the AP threatened litigation, but come on... really... is this worthy of a courts time? The AP should be ashamed to even suggest it. It has brought more attention to their copyrighted piece (increasing its value), which should be seen as a benefit. Otherwise it probably would have been lost in a sea of other similar photos.
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you're wrong, 3 Mar 2009 @ 6:03am

Re: Infringement... dunno. Theft... yes.
"It would not exist without the photograph!."

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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Forge, 3 Mar 2009 @ 6:05am

Re: Infringement... dunno. Theft... yes.
Shepard Fairey is using that photographer's work in substantially recognizable form to make money.

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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Anonymous Coward, 3 Mar 2009 @ 6:22am

Re: The Real Question Is...
I vote AP. At least Fairey didn't try and sell the picture.
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colin, 3 Mar 2009 @ 6:26am

not infringement, not theft
The photographer shot this pic when it hit to push his little button. I would imagine the photographer has several similar photos, as he was using high speed shutter, some auto advance feature as to facilitate any potential quality shot.
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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Boden, 3 Mar 2009 @ 6:32am

Re: Re: Re: None of the elements?
Actually, we would be having this discussion, because you'd then be arguing that despite the fact the "artist" had hand drawn the poster it was obvious that he started with the photo.

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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hegemon13, 3 Mar 2009 @ 6:42am

Re:
Your point? Without Shakespeare, most of literature would be different. Artists have always taken and will always take inspiration from other artists. What he did do is totally transform the picture. He removed the background and all lighting. He added and altered shadows. He changed the coloration, smoothed out edges and detail. That the photographer did not recognize his own picture until it was pointed out to him says a lot about how transformative it is.

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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hegemon13, 3 Mar 2009 @ 6:45am

Re: Re: Re: None of the elements?
So, because he uses a digital paintbrush instead of an analog one, it's not art? Okay, Mr. Luddite, have fun living last century, and, yes, I'll stay off your lawn.
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Thom, 3 Mar 2009 @ 7:18am

Monkeys
If an infinite number of monkeys were banging away at the shutters of an infinite number of cameras they could take every picture ever to be taken.

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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Weird Harold, 3 Mar 2009 @ 7:25am

Re: Monkeys
Every image is copyrightable not for the content per se but for the image. This isn't a copyright on Obama's face, it isn't a copyright on Obama's image, it is a copyright on that image taken by that photographer at that second. It is a unique product produced only by that photographer, and they own the rights to the use of the image.

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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hegemon13, 3 Mar 2009 @ 7:33am

Re: Re: Monkeys
Nope, I wouldn't. I would feel rich. If lots of people were "ripping me off," it means a have a huge amount of recognition to leverage, and that is a happy situation for any artist. It's all in perspective. Yours is clearly in lock-step with the failing media industry associations. Sorry for your inevitable failure.
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Matt, 3 Mar 2009 @ 7:39am

Once again, I have to ask, does this Reuters photo kill the whole case?

www.reuters.com
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Thom, 3 Mar 2009 @ 7:44am

Re: Re: Monkeys
You know what assuming does don't you Harold?

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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Thom, 3 Mar 2009 @ 8:04am

Re: Re: Re: Monkeys
and let me add that the ONLY artists I've ever met that feel differently are those that 1) have some rediculous idea that art and artists are gods greatest gift to mankind and should be revered by society 2) have an overdeveloped ego and exaggerated opinion of their own talent and creativity and its benefit to society
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Jesse, 3 Mar 2009 @ 8:05am

The bigger problem is: who gives a sh*t? Even if he did paint a picture of the photo, why is that a problem. It takes a lot more skill to create a painting of a photo than to snap a picture at a news conference. And again, why is copyright needed here? It is just an excuse for a bunch of legal folk to jack each other off.
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Weird Harold, 3 Mar 2009 @ 8:26am

Re: Re: Re: Monkeys
Copying other artists work from scratch has always been part of the game. Take the other artist's canvas, adding a splash of color and calling it your own isn't.

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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Thom, 3 Mar 2009 @ 8:53am

Re: Re: Re: Re: Monkeys
100, 200, 500, 1000 years ago artists didn't have computers. If they did they would've done the same. Every time a new tool was developed that could make producing art easier the artists of the time jumped on it. It's the same with computers, it started with cheey ascii art and continued to grow. The only difference this time around is that there was big business, ala Disney and their ilk, that stood to gain much more by changing that convention and restricting eveyone's rights in order to line their pockets more fully.

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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GeneralEmergency, 3 Mar 2009 @ 9:08am

This is all even more silly...
when you realize that --NONE-- of any of this is really original and is simply a rehash of the Korda March 5, 1960 photo of Che Guevara and the subsequent 1967 Jim Fitzpatrick poster derived from the Korda image.

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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Weird Harold, 3 Mar 2009 @ 9:14am

Thom, the problem for organizations like AP is that they pay for the creation of thousands of images every week, an expensive business at it's core. It's not getting any easier because the economic times that are making newspapers fail and their income sources to dry up.

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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Wes, 3 Mar 2009 @ 9:16am

Hilarious
What I find most funny about all of the pro-copyright comments here is how many irate artists/photographers there are.

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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Anonymous Coward, 3 Mar 2009 @ 9:18am

Early in this video, Larry Lessig shows the poster, original photo and 7 other very similar photos.

http://lessig.blip.tv/#1830681
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Art, 3 Mar 2009 @ 9:28am

Bah,
The problem is we raised a couple generations of "creative" people who think they can do no wrong, that everything they do is special and has value, and that being rewarded for their every pitiful act or creation is the norm.

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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Thom, 3 Mar 2009 @ 9:40am

Re:
The original picture had no value though and that's what you're ignoring. It's a good picture, a lucky shot, but nothing planned or special to be sure. No one, anywhere, is or was paying anything more than pittance for that picture. It was just another shot - until this artist took it and transformed it into something of great value.

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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Mike (profile), 3 Mar 2009 @ 9:52am

Re:
Without the underlying picture (copyright to AP) would that poster have ever been created? In the end, it is just a rendering of the photograph with the background removed, a simple photoshop technique.

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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Mike (profile), 3 Mar 2009 @ 9:55am

Re: Re: Monkeys
Every image is copyrightable not for the content per se but for the image

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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Mike (profile), 3 Mar 2009 @ 9:56am

Re:
Once again, I have to ask, does this Reuters photo kill the whole case?

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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Weird Harold, 3 Mar 2009 @ 11:17am

Re: Re:
The value of the image is in what the member newspapers and news services were paying for it. If 100 papers run the image and they each pay $10 an image, then it is a $1000 image. If I approached AP and attempted to get use of the image for a book cover or even a magazine cover, I might have to spend thousands. You see it as "only a snap", but even in my local market newspaper are paying $50 - $100 an image for the right picture to run on the front page (if not more). So the value isn't in what YOU see, but what the image's market pays for it.

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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Keith K., 3 Mar 2009 @ 11:18am

Friedman misreads the case law
With all due respect, he is misreading the case law in question. He is interpreting a ruling of first impression dealing with unique technologies, one to be applied prospectively to such new technologies as the digital models, in a way that would apply it retrospectively to areas of well-settled copyright 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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Anonymous Coward, 3 Mar 2009 @ 11:30am

One academic's views are just that...a view. Whithin the community of those who actively practice copyright law the issues are far from clear and can reasonably be the subject of opposing views.

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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Thom, 3 Mar 2009 @ 11:34am

Re: Re: Re:
That value, Harold, is a value that was NOT harmed in any way by this use of the image and, in fact, it is a value that was increased in EVERY way by this use of the image.

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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Mike (profile), 3 Mar 2009 @ 12:10pm

Re: Re: Re:
The value of the image is in what the member newspapers and news services were paying for it. If 100 papers run the image and they each pay $10 an image, then it is a $1000 image

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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W Klink (profile), 3 Mar 2009 @ 1:12pm

Without ...
> Without the underlying picture (copyright to AP) would that poster have ever been created?

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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Slackr, 3 Mar 2009 @ 1:12pm

Just an observation
As a non-US person I view these images having not been exposed to either except via Techdirt posts. As a graphic designer I also know the difficulty of making something like that poster look simple. It can takes hours and hours of work even if you use some sort of auto tracing as a place to start. (Versus a split second to grab a photo at a press conference)

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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Weird Harold, 3 Mar 2009 @ 2:05pm

Re: Without ...
No, but whoever takes the picture OF the Toyota car owns the rights to that picture.

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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Weird Harold, 3 Mar 2009 @ 2:09pm

Re: Re: Re: Re:
How else do you value it? The value of any object is what the open market will pay for it. for AP photos, that can run into the thousands of dollars on each image. That isn't a question of price (asking) but of value (paying).

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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cram, 3 Mar 2009 @ 9:18pm

"The value of the image is in what the member newspapers and news services were paying for it."

"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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Sam, 4 Mar 2009 @ 4:41am

Re:
Can't speak for mike, but I think he often makes the point that value is so much more than price. Which has greater value, an image you sell/license ten copies of at $100 each, or an image you sell/license 10,000 copies of at $10 each? Which has greater value, an image that brings $100 per use from a company no-one wants to do business with or an image that brings $10 per use from a company everyone wants to do business with?
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Timothy, 4 Mar 2009 @ 4:58am

Re: Re:
How about this: Company A sells 10 copies at $100. Company B sells 100 copies at $10. Many would argue that the value is the same, but they need to consider how consumers view the two companies for future purchases. Is it Company A as overpriced and Company B as fair priced? Is it Company A as high quality and Company B as junk? Value is more than price and more than direct revenue.
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Weird Harold, 4 Mar 2009 @ 5:25am

Re: Re:
If the "everyone" that wants to do business with them is less than 10 people, then why bother? Business isn't about making friends or making a big business group hug, it's about doing things that are profitable and give you a return on your investment.

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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Thom, 4 Mar 2009 @ 6:20am

Re: Re: Re:
A house is a scarce good, not an infinite one like an image, so you can only sell it once, to one person, in one area, for one general use. Quite a different thing, don't you think. If no, then you are showing more than ignorance.

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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hk_NYC, 6 Mar 2009 @ 12:55pm

He is a hypocrite:
http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932
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Rackredge, 8 Mar 2009 @ 4:31am

Fairey does not like fair use unless he works under it.
He has sent cease and desist letters to two artists that I know of. So why on earth did he tell NPR that he is fighting the paper for the right of artist using fair use. He is a liar and a fake! Look up Baxter Orr and Larkin Werner and then ask if Shepard Fairey really supports fair use. http://www.myartspace.com/blog/2009/03/disobey-shepard-fairey.html
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