February 6, 2009  ·  Lessig

A bunch of you have forwarded to me the story about the AP threatening Shepard Fairey for copyright infringement. The Stanford Center’s Fair Use Project is representing Fairey, so I’m a bit constrained about what I can say just now. More when there can be more.

  • http://maxolasersquad.com/ Maxo

    For those not familiar with Shepard’s work, Terry Gross did a great interview with him a couple weeks ago.
    http://www.npr.org/templates/story/story.php?storyId=99466584

  • Rick

    Jeeeezz…. more copyright insanity.
    1. Maybe the AP will back off once they realize they have a PR disaster on their hands. This seems simple to me. The original photo had no value until it was “used” by Fairey as a model for a new image. All the present value of the image rests in the value added by Fairey.
    2. Perhaps the Obama family will step in. After all, they possess the original “image” of him so any subsequent “image” is a copy. :)

  • http://shamptonian.org Scot Hampton

    Several things:

    *Who’s to say the artist didn’t see the subject (Obama) at an event, or on Television, and design the illustration based on the artist’s recollection?

    *Furthermore, who’s to say the subject (Obama) didn’t appear in this pose in another picture somewhere else?

    *who can rightfully determine what photograph is the true the origin of the ‘derivative work’, when one subject can be photographed both with the same perspective, and yet also individually an infinite number of instances?

    *What if, as an Artist, I am standing in the same location as the photographer (they usually group us all together at these events), and I catch the same angle of the subject with my own camera, or pen and paper?

    *If DaVinci had to paint the Mona Lisa from a photograph (i know, impossible at the time), could you then set a precedent and argue that he violated the copyright even though what he painted, was an original representation/interpretation, not of photograph itself, even though used as reference, but of the subject?

    *Are any works of art that are depictions of places, such as a the skyline of New York, painted by an artist, violating the copyright of a photographer who captured a photographically similar representation of the skyline from the same exact, or nearby, location?

    *is Andy Warhol’s portrait of Marylin Monroe then violating the copyrights of any image take of her that has the same angle and visual similarity?

    this one really ticked me off (and made me regret not going to law school). AP has unfortunately become a watered-down, generic news feed, from which most US news reporters pull, thus monopolizing the dissemination of generic ‘news entertainment’ that main-stream media outlets then feed to the masses. The integrity of this organization has developed the fetid, decaying smell of monopolization and corruption.

    Ok, my tirade is over.

  • Rick

    @Scot
    I heard this a day or so ago on NPR. As I recall Fairey freely admits to having seen the image among several hundred images he was rummaging through looking for ideas. Kinda shows you what being straight up about stuff will get you.

  • http://shamptonian.org Scot

    thanks rick :)

    Since he used the original for inspiration in his art, do you think it would it be classified as a transformative use of the original? protected under fair use?

  • Robert William Wolff

    Hopefully AP will decide soon that anything Fairey does with a photo they have used is improved significantly by his uee of it. And, having seen the current Shepard Fairey SUPPLY & DEMAND show at ICA here in Boston, I , and, I suspect many others, would be happy to contribute to Fairey’s legal fight against AP. I haven’t heard what AP wants, but, I’d say that use of a photo the way Fairey uesd the Obama image should be supported by those who enjoyed and benefited from Fairey’s use of it, and not by Fairey himself.

  • http://stickerkitty.wordpress.com/ Stickerkitty

    Rips of Fairey’s Obama poster can be found here: http://obamiconme.pastemagazine.com/

  • crazyronin

    Fairey has always stolen expropriated images without credit (and licensed them.

    http://www.art-for-a-change.com/Obey/index.htm

    Have an original thought, Shepard.

  • Mel

    Scot, get over yourself. Fairey himself said he looked for a photo and picked this one. He wasn’t standing there sketching with the photographer so it’s ridiculous to make that scenario.

    Rick, the AP photo “had no value until it was “used” by Fairey”? That’s not true and I’m sure AP could show you the income from the actual photo.

    The issue is whether it meets the Fair Use law (which admittedly can be subjective). Was this used for commercial use or non-profit educational use? Commercial, clearly. What is the nature of the copyrighted work? Taken by a professional photographer employed by AP. The amount and substantiality of the portion used in relation to the copyrighted work as a whole? Mr. Fairey changed virtually nothing but the coloring and the additon of the word “Hope”. While clearly artistic, he needed the photograph to make his work. The effect of the use upon the potential market for or value of the copyrighted work? Well, it likely made the AP photo more valuable although more likely, because of the fame of the Fairey version, to be considered lesser.

    Here;s the subjective part: “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.” Well, it was a huge part of Obama’s campaign so I’d say transformative.

    There are nuances to all the 4 parts of Fair Use and Mr. Fairey may win (if AP goes through with the case). But he lifted a whole photograph for his own use and if I were the photographer, I wouldn’t let it go either.

  • http://htpp://joygarnett.com joy g

    AP never actually used the photo, which is generic and indistinguishable from a zillion others, so they never made any income from it. The photographer, Manny Garcia, felt pleased his otherwise undistinguished and blah photo was used as source material for what ended up becoming an iconic image (not to mention millions of derived, ripped images). those who would disparage what Fairey does disparage art itself, and have no idea what they are talking about when they use phrases like “lifted a whole photograph” — and what would you call what photographers do with their cameras? There is no case here, AP are morons. Or rather, their lawyers are. Will someone please fire these people?

  • http://htpp://joygarnett.com joy g

    AP never actually used the photo, which is generic and indistinguishable from a zillion others, so they never made any income from it. The photographer, Manny Garcia, felt pleased his otherwise undistinguished and blah photo was used as source material for what ended up becoming an iconic image (not to mention millions of derived, ripped images). those who would disparage what Fairey does disparage art itself, and have no idea what they are talking about when they use phrases like “lifted a whole photograph” — and what would you call what photographers do with their cameras? There is no case here, AP are morons. Or rather, their lawyers are. Will someone please fire these people?

  • Sam I Am

    ” he lifted a whole photograph for his own use and if I were the photographer, I wouldn’t let it go either.”

    I couldn’t agree more. If the comments here are suggesting that anyone should be able to take any photograph captured by another, professional or amateur, and use it for their own purposes without permission, attribution or compensation, I’d say that interpretation of Fair Use is far overreaching.

  • http://shamptonian.org Scot

    @mel you’re totally right; i should have done some more research first before posting a lame rant!

    I done some serious digging and research over the last 48 hours, and have posted a thorough and extensive account of the situation with links to as many resources in the case as possible.

    Also, there’s a similarity with the story and that of my own family; 3 generations of artists where the oldest (1st) generation uses the 2nd generation’s photographs to create her work.

    the link to my blog post is here:
    http://www.shamptonian.org/2009.02.08/the-ap-vs-shepard-fairey/

    I promise not to post ill-conceived rants in the future; please forgive me :)

  • Kat

    Mel:

    As far as I know in this instance, Fairey did not actually use the image for commercial purposes. He used it to get Obama elected. He appeared on Colbert recently, and said something to the effect of that he made the image freely available so other people could download and disseminate it, and made no money for that, and his compensation was that Obama is president.

    Also, fair use in 1976 law – I’d say it’s pretty apparently fair use – the work was completely transformed. I’d bet an analysis of the pixel values for each point would be almost 100% different. Degree of creativity – 100%. Certainly was for 100% transformative use (:::cough::: change :::cough::::). Market value of original is probably more now. And even if original purpose – for use to influence politics is over, the work now stands on its own as a historical artifact of the 2008 campaign and can be used for teaching purposes in mass communications and graphic arts programs.

    As an aside…
    The Copyright Act of 1976 protects published works that are “fixed” – I wonder if by publishing something on the Internet in a form that is inherently not fixed, does this negate copyright protection? That is, the state of something’s publishedness in unfixed, how many copies of the bits are available, or in various proxy caches is mostly always in flux, and thus not ever fixed. And the affixing of copyright is suspect, too. For instance, under Bono, work for hire has protection of 95 years. I did work for hire in 1999 that is still in existence on a large corporate site. When published initially, the copyright notice said 1999. But the site has an automatic copyright that increments each year programmatically. So now the copyright says 2009. Can this be true? How can you tell when the actual copyright notice was in effect? Going to archive.org, I could find various copies of my work with various copyright dates on it. Do you get to renew copyright in perpetuity?

    I found the examples of thievery compelling. Picasso said “Good artists copy, Great artists steal.” In some respects, I like the appropriation of other’s work (provided one does more than stick the word “obey” on it). When you get the reference, you can laugh. Or one can go to that art for change site, and learn more about the images on it. I’m ok with fairey not acknowledging all work. In fact, I think it’s better that some of the work is almost pixel for pixel tracing, because then it’s easier to identify the source material. And it is a more fun game for the Art Historians/Theorists. It’s stupid to think that anyone can have a completely original thought, and the best thoughts IMO are not devoid of source material, but in fact are richer when there are many sources.

    “If I have seen a little further it is by standing on the shoulders of Giants.”

    Perhaps it is polite to ask the Giants for permission. But necessary? If you went around asking permission for everything, you’d never get anything done anymore. (Sure, major corporate motion pictures that make huge bank shouldn’t steal songs) And by creating a system that is overly restrictive in copyright protection, it turns a generation into thieves. Everybody learns from copying. Everybody would have more respect for copyright if it were indeed for limited time. Yes in scholarly works one should always quote your source, otherwise you’re plagiarizing. In art, I don’t think you are plagiarizing, unless you are 100% copying and representing work as your own. WRT Fairey’s “plagiarizing” in the aforementioned web site, I’m more okay with him copying something 100% from Art Nouveaux period (100 years ago), than I am with something 1 year go with no changes. That is the closer in time something was published, the more I think it needs to be transformed. Whereas something in the past (more than one generation ago) should have less transformed, so you learn more by going back to the past and finding out about it. If Fairey modified more of the other images so you couldn’t tell the source, would you learn about Art Nouveaux, Black Panthers, or Big Brother?

  • alloyed

    “The Copyright Act of 1976 protects published works that are “fixed” – I wonder if by publishing something on the Internet in a form that is inherently not fixed, does this negate copyright protection?”

    Unfortunately this argument is essentially foreclosed by precedent which establishes that even a copy held ephemerally in RAM for the purposes of making a machine function is “fixation” for the purposes of the statute. (MAI Systems Corp v. Peak Computer, Inc. from the 9th Circuit most clearly).

  • Pan

    Shepard Fairey is a hypocrite and does not help the cause of the Fair Use Project. Fairey does not support fair use. He tried to scare an artist named Baxter Orr with petty threats after Orr made a parody of Obey Giant under BOTH copyright and trademark law. Fairey called Orr a “parasite” and said that his fair use claim was bullocks. Who is the parasite now? Why on Earth is the Fair Use Project representing Fairey? My opinion of the Fair Use Project has changed forever. Are they trying to protect freedom of expression and creativity for only artists like Shepard Fairey or are they honestly doing it for everyone? This sends mixed messages because of Fairey’s history. Does the Fair Use Project know that Fairey settled out of court for copyright infringment just a year or two ago? If this case goes to court the skeletons in Fairey’s closet will come out.

  • http://www.socialsecuritybullshit.com Steve Baba

    ” If this case goes to court the skeletons in Fairey’s closet will come out. “

    I see plenty of skeletons, but NO closets. Wasn’t he just arrested last week, and bragged to the media about his criminal activities.

    Another fine example of a perfect test case by a bunch of amateur activists.

  • Rick

    As Kat points out above: Sainthood is not a prerequisite for a successful artist. History tells us we’ll be more rewarded by engaging the art, not the artist.

    I think Fairey’s case for fair use stands. He probably won’t escape the “commercial” issue but the piece is clearly transformative and does not, in my view, compete with the photo. Society benefits from both works.

    Photography tends to retain persistent value over time compared to “pop art” that, in this case, will enjoy success (or not) according to Obama’s success. Since children born today will live and die before the AP loses rights to the photo, what’s their problem?

    If Fairey seems to have skirted the edges of propriety, can we blame him? Creators today have to know their rights before they open their mouths or put pen to paper. Activists? I hope so. If they become conformists it’s gonna be a slow century for art.

  • http://www.socialsecuritybullshit.com Steve Baba

    “If Fairey seems to have skirted the edges of propriety, can we blame him?”

    Yes, something about the rule of law seems to be important.

    Might be nice if a copyright lawyer would explain transformative use to these amateur experts, that changing every pixel is not a transformative get out of jail card, (all but mechanical copying changes every pixel or sound byte) rather than pontificating on issues out of his area of expertise.

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  • Stance

    Shepard Fairey has shown his true colors. I read the SuperTouch article and it shows how stupid his supporters are. No one is going to pay for that book just to make the connections that Fairey should have been able to make without it! If he is gong to support fair use he should accept that others are going to use his work and pay him homage in the same way he claims to pay homage to Rene Mederos and other minority artists he has stolen from without giving credit where credit is due! People compare him to Warhol but forget that Warhol used images that people recognized. He did not try to conceal what he was doing like Fairey does.

  • DXO

    The Fair Use Project and anyone else who wants to fight for sane copyright law should stay as far away from Fairey as possible.

  • http://www.turkiyepatent.net patent

    thanksk you marka patent..

    “The Copyright Act of 1976 protects published works that are “fixed” – I wonder if by publishing something on the Internet in a form that is inherently not fixed, does this negate copyright protection?”

    Unfortunately this argument is essentially foreclosed by precedent which establishes that even a copy held ephemerally in RAM for the purposes of making a machine function is “fixation” for the purposes of the statute. (MAI Systems Corp v. Peak Computer, Inc. from the 9th Circuit most clearly).

  • Jenn

    I agree with you Mel, Sam I am and DXO! I’m also surprised to see the Fair Use Project supporting Fairey. I read that even the Obama camp chose not adopt the poster as they were concerned about copyright issues.

  • Art Snoop

    An artist going by the name of The Phantom is calling out Shepard Fairey to a cage match concerning these issues. http://citizenla.com/index.php?option=com_content&task=view&id=587

  • Jenn

    AP filed their Answer and Counterclaim -here’s an excerpt:

    “58. Fairey could have selected from any one of countless images of
    President Obama in making his posters and other merchandise, or simply drawn him from life or taken his own photograph to use for his posters and other merchandise. Instead, Fairey was drawn to the unique qualities of this particular photograph, made distinctive by Mr. Garcia’s creative and artistic input, including (1) his deliberate selection of a specific moment in time to capture President Obama’s expression; (2) his choice in using a particular type of lens and light for optimal impact; and (3) his careful and unique – 13 – composition of the photograph. These facts, combined with Mr. Garcia’s experience, skill and judgment, resulted in the creation of a distinctive image of a unique moment and expression of President Obama.
    59. The Infringing Works do not alter any of the distinctive characteristics that make the Obama Photo so striking — from the selection of subject matter, to the composition, to the exacting details of the photo. All the recognizable elements remain completely and unmistakably intact in the Infringing Works, including the angle and slant of President Obama’s head, and his gaze and expression; the contrast, focus, and depth of field of the photograph; as well as the shadow lines created by the lighting in the original photo. Fairey even used the red, white and blue flag imagery that Mr. Garcia worked to capture in the background of The AP’s photo.”

    For me – this is the heart and soul of their argument. I’ve heard many people say the photograph is generic, just one of many of Obama. But I have to disagree – Fairey, as an artist, saw the unique artistic merit in the photograph. That’s why he not only used it, but all but duplicated it. And besides – I thought the idea wasn’t to qualify art, but rather to protect artistic expression. If it was an individual trying to protect their assets, rather than a big company like AP, people wouldn’t be giving Fairey so much breadth. According to the claim, Fairey profits from the reproduction and distribution of the infringing works have exceeded $400,000. He sells a hoodie w/ the Obama image for $60.00 on his website. I just cannot see Fair Use in this case. WHY OH WHY is the Fair Use Project helping Fairey???!!!

  • Bax

    I think people should be critical of Shep Fairey. I like the response this guy made to Sheps AP response. I agree with him that if Obey Giant Art Inc. wins its case again the AP it will open the doors for other companies that want to use photographers or any other art images. Stop painting his out to be a case against a big mean media source vs. a little artist. The case involves Fairey AND Obey Giant Art Inc.! A company!

    http://www.myartspace.com/blog/2009/03/my-response-to-shepard-fairey.html