Photography versus Fair Use

[Frank Lopes]

Shepard Fairey, an artist based in Los Angeles, created the now famous poster of President Obama with the word Hope on the bottom.

We all have seen it and hundreds of thousands of posters, t-shirts and buttons have been sold, generating millions of dollars.

By the artist's own admittion, the image was based on an Associated Press photo shot by photographer Manny Garcia in April of 2006.

Now, Associated Press says it owns the copyright, and wants credit and compensation.

Fairey disagrees claiming that it was just a case of "fair use" and as such owns nothing to AP.

Here is the AP's view:
http://www.google.com/hostednews/ap/...5BusAD96560SG0


Here is the poster and the photo in question:
http://d.yimg.com/us.yimg.com/p/ap/2...rUrVWVzzGlfA--

What you think?

[AFrazier]

A photograph taken by a photographer is his or her intellectual property. If the photograph was used by someone who did not own the copyright, or have permission to use the image, especially in the case of commercial reproduction for profit, then he/she is liable to the copyright holder, who has sole rights to profits generated from the image.
"Fair Use" cannot be used for profit. It is supposed to be "fair" use, and making money off of someone else's investment without compensation is by no means "fair."

That's my opinion on the matter.

After reading the article, though, I would like to qualify what I've stated by adding that the ones making money off the image are technically the ones liable. If he never actually received money for the image, then he is not personally guilty of copyright infringement. For political purposes of public interest, the Fair Use Act should most definitely apply.
On the other hand, his actions proclaim him the artist, and all he really did was Photoshop someone else's photography without crediting them.

Sounds like a sticky situation. I wouldn't want to be him, because he's likely to lose any lawsuit, and if he didn't receive money for the image as he claims, then this breach of etiquette is going to cause him a significant loss.

[Trowa]

This case may have some substantial repercussions considering the actual "use" of the image is questionable. If I were to say paint a picture of the Eiffel tower as I see it in a photograph in the style of someone like William Bliss Baker then I would owe the photographer by the same token. It may further complicate things because it’s a real thing that can be seen and there is no way to dispute that I could not have seen the tower by the same angle myself.

[HuBBa]

well in those situation when it's a well photographed landmark and pretty much impossible to identify the exact photographer then you pretty much wont have a case.

In this case however there is little doubt to what photograph were the reference for the painting. What the artist failed in was understanding basic copyright laws to secure the right to use the reference photograph he used. The fair use clause as have been stated is a very tricky one to hang on to, especially if you are paid in any way or form.

In my personal and non-legally binding opinion, it's a matter of an artist not checking the rights and now he got caught with his proverbial pants down.

[Trowa]

Originally Posted by HuBBa

well in those situation when it's a well photographed landmark and pretty much impossible to identify the exact photographer then you pretty much wont have a case.

In this case however there is little doubt to what photograph were the reference for the painting. What the artist failed in was understanding basic copyright laws to secure the right to use the reference photograph he used. The fair use clause as have been stated is a very tricky one to hang on to, especially if you are paid in any way or form.

In my personal and non-legally binding opinion, it's a matter of an artist not checking the rights and now he got caught with his proverbial pants down.

So by the same logic I would be able to do a painting of former president Clinton and they wouldn’t have a case because he has been very well photographed and pretty much impossible to identify the exact photo that I used as reference. In this particular case the artist made the mistake of saying he used that specific photo as reference which generally mars his defense.

[HuBBa]

IF its impossible to identify the photograph, which either can be because it's such a general image or that you have altered the painting so it no longer have much likeness with the original photo, then yes you can paint away to your hearts content.

In this case the artist indeed made the "mistake" of identifying what photograph he used, but it could be that it was identifiable anyway. If AP would have figured it out however is a different matter.

[Cydne]

I agree with AP. Fair Use does not mean that you can take someone else's photo, add a bit of blur, and publish it, sell it, whatever. It wasn't his. And he is an intellectual thief.

[RAG]

This is an interesting topic to be sure. I don't believe the artist made the art indistinguishable enough from the original photo and that is something that was drilled into me. It is OK to use the work of others as a starting point, but when you are done it may not look anything like the original.

[Frank Lopes]

I'm not trying to compare the talents of this artist with those of Andy Warhol...

But...

when I saw this poster the first thing that I thought about were the famous Warhol paintings of Marylyin Monroe, James Dean or Che Guevara.

None of those pictures that he used he shot and he was reknown for "using" other peoples "base" work as the start to some of his most famous paintings. Probably the most famous "copied" work being the famous can of tomato soup.

Again, not trying to compare the two artists, but doesn't what Shepard Fairey did fall in the same category as what Warhol did?

If it does indeed fall in the same category, are we today more sensitive to these matters than society was during the sixties and seventies when those famous works were done?

[AFrazier]

Andy Warhol may have gotten permission, purchased a release, etc. Just because some of his most famous works are based on actual photographs doesn't mean he did them illegally. In fact, considering his noteriety, I would be willing to bet that he did have permission from the copyright holder. That's just not something they announce to the general public. The business end of the transaction is something done behind closed doors.

[Frank Lopes]

I remember vaguely reading articles written around the time he passed on, specifically making the point that he had not gotten permission, but due to the fact that he was so famous when he died, the copyright owners didn't mind having their work used.

If that was the case, and I obviously don't know for sure, are we using a different standard today?

[AFrazier]

If they "didn't mind," then he had permission, if only informally.

[negrodario]

Fair is fair. No matter how much you altered or distort it to give the art look, it was still originally a photo. If the artist paints a portrait by memory, then its a different game. It this case the rights belong to the photographer, and if he relinquish them, they belong to the publishing house.

Hello to everybody!
negrodario

[AFrazier]

That's not necessarily so. If the image is altered enough, it is argued that it is no longer the original image.
The Fair Use Act covers music, photography, art, literature, and a few other things. If there is a significant alteration from the original, it is no longer the original artwork (regardless of media) of the original artist.
Vanilla Ice is a prime example. By adding a pause and an extra note, he all but stole the music of Queen. It wasn't the same, though anyone could tell the original source from which he sampled it. If I'm not mistaken, he won in court, intellectual thief though he was.