Shepard Fairey Case Gets More Complex: Mannie Garcia Claims The Photo Is His, Not The AP's
from the the-shifting-feelings-of-Mannie-Garcia dept
The Shepard Fairey case continues to get more and more bizarre. You may recall that, back in January, someone figured out which photo Shepard Fairey had used as the basis of his iconic Barack Obama poster."I know artists like to look at things; they see things and they make stuff. It's a really cool piece of work."On top of that, his only request would be getting Fairey to send him a signed copy of the poster:
"I wouldn't mind getting a signed litho or something from the artist to put up on my wall."Of course, soon after that, the Associated Press, for whom Garcia was working at the time, demanded money from Fairey, and the two are now involved in a lawsuit over the issue. When that happened, I remember reading an interview with Garcia (which unfortunately I can't find now), where he noted that he never signed anything granting the AP the copyrights to his photos. But, more recently, it seemed like Garcia had done a total 180 and now claimed he was upset by the poster:
"When I found out, I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it. That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."There's no way to square this with his original comments. One of them is untrue. But, perhaps the lure of getting some extra cash got into Garcia's mind... That theory might gain some more weight given that he's now filed with the court to "intervene" in the case, claiming that he holds the copyright on the photo and the AP is falsely claiming that it holds the copyright. On top of that, though, the filing says that he believes Fairey infringed on Garcia's rights. Again, this does not seem to agree with Garcia's original comments which certainly brings his motives into question.
The whole thing is pretty ridiculous. The fact that neither Garcia nor the AP noticed that it was this photo that was used makes a pretty strong case that this use was transformative fair use. On top of that there's an argument that Fairey didn't make use of any of the actual creative elements of the photo (i.e., the stuff that's actually copyrightable), and thus there's no infringement. But the bigger point? This photo would have been lost in a sea of other Obama photos if Fairey hadn't used it. The fact that so many people now even know of Garcia's existence as a photographer is due entirely to Shepard Fairey. If anything, Garcia owes Fairey a huge thank you for promoting his photograph.
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Filed Under: copyright, mannie garcia, shepard fairey
Companies: associated press
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This one is a tough call for me...
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Re: This one is a tough call for me...
But neither the post nor the lighting were under Mannie Garcia's control -- and thus were *not* Garcia's creative expression. Thus, they are not covered by copyright.
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Re: This one is a tough call for me...
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Hold your horses...
http://neveryetmelted.com/wp-images/ObamaLooksUp.jpg
Also - this is transfromative in that a button was added, the background altered, and the face is at a slightly different angle - overlay them to see.
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http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/a_last_word_hopefully_and_upda_ 1.html
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What if
Then all we need is Girl Talk to jump in and kill the RIAA!
I know I'm dreaming but it could happen with a little courage and some pro-bono representation.
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I think that the real determination for me is how Fairey created the poster. If he used the image, manipulated it digitally, and produced the poster, I would say that it is infringement.
If he saw the photo, hand sketched Obama into the poster, and then added the text, button, etc., I do not think it is infringement.
Basically, the determinant for me would be: What did Fairey start with when he created the poster - a blank canvas (digital or physical), or a picture which he manipulated.
(Admittedly, I haven't researched the story enough to know the answer to my question.)
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Re:
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.
...
To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.
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Doesn't seem like you have anything to support your non-lawyer opinion with, so we'll file you in the "shilling for the big man" category.
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What if they did a photo-realistic painting over a month that looked IDENTICAL? What if they spent 2 minutes, ran it through morphing software that completely changed the physical appearance so that it appeared to look like tie-dye?
Would the photo-realistic painting be infringing? Would the tie-dye design?
The amount of effort or process that goes into creating artwork is irrelevant. It's the end result that matters, and this appears totally different in that other than the positioning of the subject, no other original artistic attribute is maintained. Colors, hues, tones, lines, all are altered. Does it really matter that much what it took to achieve that new, and original look?
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Re: Hold your horses...
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Re: This one is a tough call for me...
The poster I saw in DC at the NPG is not the same as what you see online, like above. The Obama image is imposed on a collage of newsprint, some of which shows through the paint quite well, other parts not at all (I couldn't tell the age of the newspapers, but some of the illustrations looked as though they were from decades past). Also, there are at least several stencils in areas, done in the same colours as the paint for the image. The poster I saw was not a flat image, but had texture and detail that is lost in the most standard jpegs I've seen of the poster.
If that is the work at issue, then I believe Fairey has a stronger case for transformative fair use than I had given him credit for at the outset. And I really need to put my trip photos on Flickr ... (And yes, I took several photos of the poster ... don't sic the AP on me!)
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In looking at fair-use doctrine, the original nature is a photograph which was marked as copyrighted in the digital format. If the digital file was simly converted to 4-bit grayscale, then colored, that would not indicate to me considerable transformation, but more derivative. Hence that would fail the first prong of the fair use test. At least one of the other three prongs is clearly violated, while considerable argument could be made for the other two. Hence, this prong could make or break the fair use defense in this case.
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Hmm. Much of my thinking on the case was informed by Peter Friedman, a law professor and expert on copyright law and fair use. Are you suggesting he's wrong? Also Fairey is being defended by the Stanford Fair Use Project, who are experts in fair use.
Do you have anything to back up your claim that all of these fair use experts are wrong?
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Re: This one is a tough call for me...
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Re:
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Are pictures of the president of the USA copyrightable?
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Re: Are pictures of the president of the USA copyrightable?
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Interesting
Guess the lawyers are the ones most happy about this.
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Re: Re: Are pictures of the president of the USA copyrightable?
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Re: Re: Hold your horses...
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So i'll stress JAy's point...AGAIN. It's not a case of HOW Fairey did it, it's what he started with and how much of a transformation took place.
Even without a specialized program, such as Photoshop, I could take that photo and simply change the color and background; that would be infringement. Even if I started with a digital photo, though, I could change it enough to call it "transformed".
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Re:
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Ah hello!
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Re: Re: Peter Friedman
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Re: Re: Re: Peter Friedman
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legal change and activism
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Re: legal change and activism
Also, we need to ensure voters are heard.
http://forums.christianity.com/Nueces_County_Republican_Convention/m_4413449/mpage_1/tm.ht m#1
We should DEMAND a more transparent voting system that also ALWAYS allows people to write in votes.
see
http://www.techdirt.com/articles/20090608/2201455173.shtml
(look at my posts, my nick is Bettawrekonize ).
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Problem is fact we're discussing it
Projects which require insurance, such as films, are virtually prohibited from relying on fair use, because the corporate insurers will simply not accept that as a basis for utilizing the material, regardless of how "fair" the use. Either pay the big bucks for the clearances, even for fleeting references, or forget about it.
It's really unworkable, and the need for a uniform set of standards has never been greater.
By the way, IMHO... it's a slam dunk fair use. And yet, it would not surprise me if the Court puts Fairey through the enormous burden of pretrial discovery + full blown trial.
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Simplified to the Essence
The difference here is that, instead of revolving around the arcane technical details of software algorithms or esoteric legal arguments of business process patents, this one is boiled down to the very basics, and thus clearly comprehensible by almost everyone -- even the legal system. Perhaps we will finally begin to get some clear guidance about what we can and cannot (legally) do.
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Re: Problem is fact we're discussing it
And as a finish to this thread, as a artist and a visual communicator I know that "all" artists practice "creative license" as part of their stock and trade. Furthermore any art you see has had elements lifted from previous art.... even our great painters used Mother Nature herself as a medium to lift from. So lets all get over this and let the artists make more art and enjoy all of it as all art is meant to be enjoyed.
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fair use plagiarism
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everyone looses now
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Re: Re: This one is a tough call for me...
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Re: Re: Re: This one is a tough call for me...
Let's think about this a minute longer. Let's take 2 photographers and place them side by side continuously taking pictures of the same subject. Will anyone be able to tell one picture from the other if the only difference is a slight angle? So what's really copyrightable here?
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Re: Hold your horses...
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Re: Are pictures of the president of the USA copyrightable?
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Copyright laws only concern are made to allow one only company to profit from it.
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Re: This one is a tough call for me...
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Re: Are pictures of the president of the USA copyrightable?
Artwork made from his likeness falls under copyright and the copyright is held by the creator of the artwork (not the subject).
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Re: Re: Re: This one is a tough call for me...
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Re: Re: Are pictures of the president of the USA copyrightable?
The masters make it look easy, which is why some idiots think it can be accomplished with a Photoshop action. It looks deceivingly simple. The image though has an entirely different dynamic and life, something that can only be understood if one actually attempts to do exactly what he did. Try it - take any photograph (but contact your lawyer first), and transform it into the traditional style of Soviet/German propaganda. By the time you're done, you'll change your mind.
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Re: Re: Re: Re: Peter Friedman
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Re: Re: Re: Re: Peter Friedman
I personally feel it has transcended the infamy of, what was until now considered history's most infamous propaganda campaign, Hitler's. No photo has ever achieved that. Most people can't even comprehend the vast disparity between the source photo and the graphic image. Regardless of what the source was, the end result is a clear and acceptable work of art protected under fair use law. Period. It seems few people actually know anything about what copyright law is, is for, and why it exists. The fight is not to uphold the law, nor to do what is right and just. It is for money and nothing else. If there was no source of money in the image, the AP wouldn't even bother with litigation.
The irony is that when I myself first saw the image, it seemed rather cliche at the time, and bore style that seemingly brought nothing new or unique to the table. I couldn't have been more wrong. Also, the further and deeper this argument continues, the more significant the work becomes, effectively justifying it under the law that PROTECTS and VINDICATES it, though I wouldn't bring that argument to court. It has also simultaneously become a landmark case in copyright and fair use provisions that will likely become textbook discussion in universities for years to come.
The rest of us can only dream of achieving such an impact with anything at all in our lifetime, let alone with a "simple" 3 color screen print. Shepard Fairey truly is a master...and welcome to take ANY thing I create to that kind of level. For free.
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Discovery abuse is completely different than the fair use analysis that the court will engage in to actually decide the substance of the case. Discovery abuse = sanctions but courts have already weighed in that bad faith isn't really pertinent in fair use.
As much as I'd like to see the court find fair use here, I don't think it's necessarily open-and-shut fair use on its face because of the effect on the market factor.
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