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Beeber 02-05-2009 10:36 AM

Obama campaign artist--copyright infringement??
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This article has been posted on Yahoo. It brings up an interesting point that adds to the ongoing copyright discussion that takes place in this forum. How does Fair Use apply to portraiture artists, and how much does an image have to be changed from a photograph before it can stand on its own?

AP alleges copyright infringement of Obama image

Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.

The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement.

"AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."

"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work.

A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images. He released the image on his Web site shortly after he created it, in early 2008, and made thousands of posters for the street.

As it caught on, supporters began downloading the image and distributing it at campaign events, while blogs and other Internet sites picked it up. Fairey has said that he did not receive any of the money raised.

A former Obama campaign official said they were well aware of the image based on the picture taken by Garcia, a temporary hire no longer with the AP, but never licensed it or used it officially. The Obama official asked not to be identified because no one was authorized anymore to speak on behalf of the campaign.

The image's fame did not end with the election.

It will be included this month at a Fairey exhibit at the Institute of Contemporary Art in Boston and a mixed-media stenciled collage version has been added to the permanent collection of the National Portrait Gallery in Washington.

"The continued use of the poster, regardless of whether it is for galleries or other distribution, is part of the discussion AP is having with Mr. Fairey's representative," Colford said.

A New York Times book on the election, just published by Penguin Group (USA), includes the image. A Vermont-based publisher, Chelsea Green, also used it — credited solely to Fairey_ as the cover for Robert Kuttner's "Obama's Challenge," an economic manifesto released in September. Chelsea Green president Margo Baldwin said that Fairey did not ask for money, only that the publisher make a donation to the National Endowment for the Arts.

"It's a wonderful piece of art, but I wish he had been more careful about the licensing of it," said Baldwin, who added that Chelsea Green gave $2,500 to the NEA.

Fairey also used the AP photograph for an image designed specially for the Obama inaugural committee, which charged anywhere from $100 for a poster to $500 for a poster signed by the artist.

Fairey has said that he first designed the image a year ago after he was encouraged by the Obama campaign to come up with some kind of artwork. Last spring, he showed a letter to The Washington Post that came from the candidate.

"Dear Shepard," the letter reads. "I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can help change the status quo. Your images have a profound effect on people, whether seen in a gallery or on a stop sign."

At first, Obama's team just encouraged him to make an image, Fairey has said. But soon after he created it, a worker involved in the campaign asked if Fairey could make an image from a photo to which the campaign had rights.

"I donated an image to them, which they used. It was the one that said "Change" underneath it. And then later on I did another one that said "Vote" underneath it, that had Obama smiling," he said in a December 2008 interview with an underground photography Web site.


Associated Press writer Philip Elliott in Washington contributed to this report.

TessDB 02-06-2009 08:48 AM

Re: Obama campaign artist--copyright infringement??
There was an interesting interview with a lawyer about this on NPR's All Things Considered yesterday...

Worth a listen!


ArtSavesLives 02-08-2009 06:34 PM

Re: Obama campaign artist--copyright infringement??
Seems that Google Image is now "fair game" for reference photos. . . as long as you don't usurp income form the original creator, anything goes! Fair use should not be interpreted as if it were defined for artists who wanted to skip steps in the creative process. I believe this "Fairey Tale" has the power to erode copyright protection, the potential to encourage use of anything and everything available on the internet, and the possibility of promoting the illegal and often unwanted and destructive posting of promotional materials into the realm of legitimate art publicity.

While Warhol was making a statement about culture and choices and mass production in his iconic Campbell's Soup Cans, I don't see an on-point parallel in Fairey's work. In Fairey's response to the Obama campaign's call to artists he took the easy route to fame by combining a googled image and his knowledge of simple pop art techniques. But unlike elevating the idea of canned nutrition into the realms of discussable art, his Obama image itself does not speak to ideas or questions or discussions of public policy, but rather pretends to be on par with the many original ideas that were submitted, but passed over, in part because Fairey had already plastered the nation's security fences and street posts with the image on his widely distributed posters.

And I don't entirely agree with the evaluation by NPR's guest lawyer on the "fair use" evaluation regarding the "factual vs. creative" argument. A good photographer can stand among many photographers while shooting the same subject at the same time and bring a skill in composition and exposure to his image that makes it stand apart. I don't think the loss of income should be a factor as much as whether we want to encourage the use of other's works, be they photos, sculptures, paintings . . . or words, by anyone and for any purpose. . . even if it is a good purpose.

All Fairey had to do was ask and acknowledge that the image he based his work on was someone else's composition . . . .

DesertDarlene 02-08-2009 11:45 PM

Re: Obama campaign artist--copyright infringement??
It's funny, I had a discussion about this and the guy I was talking to was praising the artist saying that the photographer "had a lot of money" and could afford to have his work stolen.

I don't know about you, but where I come from, most photographers don't "have a lot of money". Also, even if they did, their work should be respected and not used in such a way without permission in my opinion. I don't think the fact that if someone thinks someone or some business has a "lot of money" that they deserved to be ripped off.

As for "fair use", I don't think this qualifies. Fair use was originally designed for using materials in a teaching or educational manner and usually not for profit. This artist has, indeed, profited from his use of this photo in more ways than one.

DesertDarlene 02-09-2009 09:30 AM

Re: Obama campaign artist--copyright infringement??
But, I do agree with the comment that if the artist just asked for permission and/or paid a royalty fee for use of the photo that there'd be no issue here.

jmckelvin 02-09-2009 10:38 AM

Re: Obama campaign artist--copyright infringement??
I always thought to be on the safe side, you either use your own reference photos or get permission to use a photo. I figured it's always safe to assume that anything published has a copyright and you should always ask permission before using the photo as a reference, especially if you are selling. Couldn't this artist have asked for a photo of Obama from the campaign staff, or just written to AP about getting permission? That would have saved a lot of trouble.

VeronikaB 02-09-2009 05:26 PM

Re: Obama campaign artist--copyright infringement??

Originally Posted by DesertDarlene
It's funny, I had a discussion about this and the guy I was talking to was praising the artist saying that the photographer "had a lot of money" and could afford to have his work stolen.

Words fail me.

aderfla 02-10-2009 02:34 PM

Re: Obama campaign artist--copyright infringement??
Here is the hypocrisy, "In 2008 Shepard Fairey sent an artist, Baxter Orr, a cease-and-desist letter that threatened legal action after Orr had created, distributed, and sold a parody of Fairey’s widely known Obey Giant poster".

I like his images, but the fact is he does steal other artists and photographers images and then claims fair use because he slightly alters them on photoshop. They don't fit fair use at all.

Shillster Mann 02-11-2009 01:14 PM

Re: Obama campaign artist--copyright infringement??
One of the clearest cases of fair use. Hands down this is obviously a case where someone is trying to steal an artist's right to comment on the world around him. A likeness is not something that can be protected with a copyright.


Fairey used the Garcia Photograph as a visual reference for a highly transformative purpose;

Fairey altered the original with new meaning, new expression, and new messages; and Fairey did not create any of the Obama Works for the sake of commercial gain.

The Garcia Photograph had been published well before Fairey used it as a visual reference, and is a factual, not fictional or highly creative, work.

Fairey used only a portion of the Garcia Photograph, and the portion he
used was reasonable in light of Fairey’s expressive purpose.

Fairey’s use of the Garcia Photograph imposed no significant or cognizable harm to the value of the Garcia Photograph or any market for it or any derivatives; on the contrary, Fairey has enhanced the value of the Garcia photograph beyond measure.

Fairey and Obey Giant are therefore entitled to a declaratory judgment that the use of the Garcia Photograph as a visual reference in creating the Obama Works (as identified in Exhibits B-G to this Complaint) is protected by the Fair Use Doctrine.

Shillster Mann 02-11-2009 01:15 PM

Re: Obama campaign artist--copyright infringement??

Art River 02-13-2009 09:09 PM

Re: Obama campaign artist--copyright infringement??
Google images are not fair game. Most of them have a copyright protection symbol on them and even say "copyright protected".

Shillster Mann 02-13-2009 10:38 PM

Re: Obama campaign artist--copyright infringement??
Fair use is an exception to the copyright protection, its not something that should be described as "fair game". Google images are themselves and example of fair use, they copy work and create thumbnails for a search engine, a transformative use of the original.

Kampher 02-14-2009 04:16 PM

Re: Obama campaign artist--copyright infringement??
I think this painting falls within copyright law as a derivative work. It seems Fairey has walked this type rope plenty of times in the past and knows what he can get away with.

CircaDesigns 02-24-2009 10:17 AM

Re: Obama campaign artist--copyright infringement??
I've been somewhat following this case in my spare time, being in the advertising business, clients ask me to find images for their brochures, catalogs, etc. and their usual comment is, "just grab something off Google Images". I try to educate them on what my "limited" understanding of copyright law is, but sometimes they insist and when they do I make them sign or have in writing that they, the client, supplied all images. Not sure if that would hold up in court and keep my name clear, but I think it tells the client I won't be their scapegoat. As for what Fairey did, this is fairly common practice and I may have even crossed this line of using found images and changing them to fit my clients needs.

Andy Warhol's soup cans were mentioned above, which are definitely making a culture statement as were the Marilyn Monroe and other celeb prints. Fairey is also making a statement, a political statement aimed at a particular audience. I think Fairey's work is even more separated from the original than Warhol's. My feeling is that Fairey took a ho-hum photograph and turned it into an iconic image. AP is just trying to cash in, when in truth Fairey could have simply used another image, he just happen to come across the AP image first. All that said, as popular as Fairey is and his subject matter, he should of had enough brains to either find another image or ask for permission. I don't think taking this to court is in either party's best interest.

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