AP And Shepard Fairey Settle Lawsuit Over Obama Image; Fairey Agrees To Give Up Fair Use Rights To AP Photos

from the can-you-do-that? dept

It appears that much of the lawsuit involving copyrights and the iconic Obama poster by Shepard Fairey has come to an end, as Fairey and the Associated Press have settled their lawsuit*. As you hopefully know, Fairey created the poster, using an image that he admitted he found via Google News.
For quite some time, no one (including either the Associated Press or the actual photographer, Mannie Garcia) recognized what the original photo was -- clearly suggesting that the poster was transformative. Finally, two years ago (after the election), a photo journalist named Tom Gralish tracked down the original photo. At the time, Garcia seemed thrilled that his photograph had been used. But the whole thing quickly went into bizarre-town, as the AP flipped out and threatened to sue Fairey, despite the fact that it had never realized he used their photo. Considering the level of transformation, and the lack of artistic choices by the photographer, there was a strong argument that there was little in the photograph that was actually protectable, and what was protectable, was likely fair use in the manner it was used.

Fairey, confident of his position, sued the AP first, leading to a countersuit (and later, a bizarre side argument when Garcia claimed that he owned the photo, not the AP). Of course, the case got a lot more complex (and ridiculous) when Fairey stupidly destroyed evidence and lied about which photo he had used. For someone who had such a strong legit argument, this seriously undermined his case.

Of course, what's never been explained is how the AP was actually "harmed" here. If Fairey hadn't used that photo, he would have found another photo. No one associated the poster image with the AP, and the revelation that it was an AP photo only increased the attention for that AP photo. The whole thing was silly, and perhaps the AP realized that in coming to this settlement. Fairey, of course, had every reason to settle because of his own stupid actions that undermined what otherwise was a solid case. The details of the settlement are a little strange however:
As part of the deal, Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative. The two sides also reached a financial settlement; terms weren't disclosed.

The release said neither side surrenders its view of the legal issues surrounding the dispute. The deal also calls for both sides to work together with the "HOPE" image and share rights to make posters and merchandise based on it.
I can understand this, but I wonder if, in that first part, Fairey has effectively given up his fair use rights -- and whether or not that's legal. If Fairey has a perfectly legitimate fair use of an AP image, and doesn't license it, is that still a violation of this agreement?

And while it's unfortunate that we won't get a court to rule directly on the fair use issue, it appears the case is not totally over. In another article detailing the case, it notes that the case will continue against a clothing manufacturer One 3 Two*, who made shirts with the image, and is still fighting and saying that its use did not infringe. However, it also basically says that it licensed the image from Fairey, and if it did anything wrong, basically the blame should land on Fairey.
Lawyers for clothing manufacturer One 3 Two said in court papers that the "total concept and feel" of the AP picture and the Obama image were different. They said that while the AP picture "depicts a portrait of President Obama suitable for news reporting, the Obama Image is an iconic piece of artwork that has an edgy, provocative feel that is characteristic of Fairey's street art."

The company said it has an indirect contractual relationship with the artist and has asked the judge to rule it did not violate copyrights. It said it is the exclusive licensee of Obey Giant Art LLC, which is affiliated with Fairey. The company said it had nothing to do with creating Fairey's images as it sold apparel and other merchandise using the art.
It would be nice if we actually got a clear ruling that the image did not infringe, but that seems unlikely.

* It's worth pointing out that both articles I've linked to here were written by Larry Neumeister of the Associated Press. While I am sure that Neumeister did his best to be totally objective, in the past, the AP's reporting on this case (which, obviously, is partly about the AP) has not always been objective or fair.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    John Doe, Jan 12th, 2011 @ 11:31am

    Merchandise?

    I wonder if all the bickering has cost them their opportunity to sell merchandise since Obama's popularity ain't what it use to be.

     

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  2.  
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    ChurchHatesTucker (profile), Jan 12th, 2011 @ 11:40am

    Jeebus

    If that's not transformative, I don't know what the word means.

     

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  3.  
    identicon
    Joe Artiste, Jan 12th, 2011 @ 11:56am

    Huh?

    As part of the deal, Fairey agreed to not use another AP photograph in his work without obtaining a license from the news cooperative.

    I too don't get it. I guess I can understand the one photo, becuase as Mike pointed out, the guy did some things that undermined his case there. But what sense does it make to even consider that kind of arrangement with the AP for any future photos?

    - Does he think that he can simply go around them in the future, and use different sources?
    - Does he think that you can't really waive Fair Use, so if the opportunity presents, he'll do as he likes, and not be a moron about his defense the next time around?
    - Does he live by a view of Copyright that is so misguided that this kind of arrangement is not only a sensible thing to do, but the way it should always be done?

     

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  4.  
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    interval (profile), Jan 12th, 2011 @ 11:57am

    Still looking for a definitive landmark case for this nonsense, and Fairey could have been it. Too bad he blew it.

     

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  5.  
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    ChurchHatesTucker (profile), Jan 12th, 2011 @ 12:04pm

    Re: Huh?

    Think of lawsuits as being punched in the wallet.

    Someone punches you in the wallet repeatedly.

    You try to hide your wallet in some manner that the law disapproves of, thus encouraging more punching.

    Realizing that, you come to some arrangement with the dude who was punching you.

    Any questions?

     

    reply to this | link to this | view in thread ]

  6.  
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    Jay (profile), Jan 12th, 2011 @ 12:13pm

    What should really be troubling is the fact that you can give away your fair use rights to a company...

    It's mind boggling that the law can be subverted so easily without damage being shown to AP's business.

     

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  7.  
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    Overcast (profile), Jan 12th, 2011 @ 12:16pm

    LOL, all the crying over something that - no one (except maybe for the involved parties) could care less about.

     

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  8.  
    identicon
    Anonymous Coward, Jan 12th, 2011 @ 12:16pm

    Just had to say something about "Bizarre Town"...

    Bizarre-Town?

    Isn't Bizarre-Town a pizza joint outside of Ithica, NY across the street from campus and next to the Taco Bell?

     

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  9.  
    identicon
    John Doe, Jan 12th, 2011 @ 12:25pm

    Re: Jeebus

    Actually, I have to disagree with how transformative it is. There are actions you can run in Photoshop that will produce this kind of image. The photo was very faithfully reproduced in the poster down to the shading, pose, etc. Now I guess you could argue that the Photoshop action is transformative and maybe configuring the settings on the action makes it even more transformative, but it wouldn't surprise me if he ran a basic action to create this image.

     

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  10.  
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    Nina Paley (profile), Jan 12th, 2011 @ 12:27pm

    bad

    This sets a bad precedent. No respect for Mr. Fairey. I realize some people cling to principles beyond reason, but he goes too far the other way: he's principle-deficient. He could use some.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    C.T., Jan 12th, 2011 @ 12:43pm

    Proof of transformativeness?

    For quite some time, no one (including either the Associated Press or the actual photographer, Mannie Garcia) recognized what the original photo was -- clearly suggesting that the poster was transformative.

    I disagree with this analysis. I think it is quite clear that the reason that AP took so long to notice that the Hope image utilized one of their photos is that the photo was more or less indistinguishable from 1000s of other photos of Obama. It had little to nothing to do with how transformative Fairey's use was. In fact, when you compare the Hope poster to the AP photo side by side, it is extremely obvious that Fairey used the AP photo. Nobody really contests that. Indeed, the claims for transformativeness were not really grounded in the idea that Fairey's use obscured the original photo in a way that made it hard to determine the source of the image. Instead, they were based on the political nature of the use, and the different type of audience to which it was directed.

    I think perhaps you are conflating the arguments related to whether Fairey used copyrightable expression from the AP photo with those related to fair use. That the photo was so similar to 10000s of other photos speaks to the issue of copyrightability, not necessarily to the fair use issues.

     

    reply to this | link to this | view in thread ]

  12.  
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    ChurchHatesTucker (profile), Jan 12th, 2011 @ 12:46pm

    Re: bad

    This is an object lesson.

    While the term "gonads" is commonly considered a synonym for "testicles" it actually refers to reproductive organs of any kind. For women, it's ovaries.

    Point being: Nina has gonads made of shiny brass. Shepard has none. Or possibly they exist on a quantum scale. I'd like to find out, but I fear the possibility of a kitteh dying in the experiment.

     

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  13.  
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    ChurchHatesTucker (profile), Jan 12th, 2011 @ 12:52pm

    Re: Re: Jeebus

    "Now I guess you could argue that the Photoshop action is transformative and maybe configuring the settings on the action makes it even more transformative, but it wouldn't surprise me if he ran a basic action to create this image."

    Yeah, OK. But the image is still very different. Different enough that they "offended" party had a hard time figuring it out.

    What filter you used doesn't really enter into it. Unless you wrote the filter, I suppose, but that's a whole other kettle of fish.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Jan 12th, 2011 @ 12:58pm

    Edgy?

    Those people clearly didn't play games in the 80's all the graphics where like that LoL

     

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  15.  
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    The Mighty Buzzard (profile), Jan 12th, 2011 @ 1:06pm

    Is it legal

    I can understand this, but I wonder if, in that first part, Fairey has effectively given up his fair use rights -- and whether or not that's legal.

    Pretty sure it's quite legal. People sign away rights in contracts on a daily basis and that's basically what a settlement is. A contract to keep from having to actually go all the way to court.

     

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  16.  
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    The Mighty Buzzard (profile), Jan 12th, 2011 @ 1:09pm

    Re: Huh?

    He absolutely could go around them in the future. The AP doesn't currently have a monopoly on all photographs throughout history.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    S. Miller, Jan 12th, 2011 @ 1:51pm

    Get your facts rights

    Dear Mr. Masnick,

    You state "Fairey, despite the fact that it had never realized he used their photo. Considering the level of transformation, and the lack of artistic choices by the photographer, there was a strong argument that there was little in the photograph that was actually protectable, and what was protectable, was likely fair use in the manner it was used. "

    Wow... get your facts right....

    First, Fairey the thief admitted he used an AP photo.. he even lied as to which photo by Mr. Garcia he used to cover his ass.
    First in this interview: http://suicidegirls.com/interviews/Shepard+Fairey%3A+Purveyor+of+Hope/ ), Fairey admits that he knew the image was stolen:

    “. . . But the image that I continued to put out there myself, they couldn't have any affiliation with it because it was being perpetuated illegally in a lot of ways, and so I just continued to do that on my own without any coordination with them, and that was the "Hope" image.


    Secondly, Overlaying his “Hope” poster, slightly rotated, over Mr. Garcia’s photo produces a perfect match—the eyes, the shoulders, even the lighting on Obama’s face all line up.

    As for you claim of "lack of artistic choices" try depth of field (aka field of focus), the angle at which he took the photo, the choice of lens - a long lens compressing the back to be out of focus slightly, exposure all of which are Artistic Choices.

    And food for thought.. any idea how many photos Mr. Garcia makes in a year or how many the AP and it's world-wide base of photojournalist make in a year??

    Easy to overlook a photo of a junior Senator from Illinois, who was not even the focus of the assignment Mr. Garcia was on when he made the photo and also to not realize from where it came.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Jan 12th, 2011 @ 3:34pm

    Re: Get your facts rights

    Darryl would be proud of your inability to read and to form logical arguments. Bravo!

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Jan 12th, 2011 @ 4:59pm

    If any one wants to make his on "HOPE" avatar this is how:

    To make your own HOPE poster people can just use Gimp(or Photoshop) to posterize the colors, and using some blur masks, you can get pretty close without any retouching, of course for better effects redrawing some parts is always good.

    In Gimp go to Color -> Posterize :)

    Yep is that easy folks.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Pixelation, Jan 12th, 2011 @ 6:10pm

    "The deal also calls for both sides to work together with the "HOPE" image and share rights to make posters and merchandise based on it"

    Just don't buy any merchandise based on it.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    hxa7241, Jan 13th, 2011 @ 6:52am

    Re: Re: Jeebus

    It is not a matter of how difficult it was to do, it is a matter of how different it is.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    John, Mar 30th, 2012 @ 12:16am

    "Of course, what's never been explained is how the AP was actually "harmed" here."


    AP owns the image.
    When you use an image without the photographers permission (and in this case, without compensating AP... who charges for the use of their image) you are harming the photographer and the agency that they work for.

    I know that people think that any image they run across is free. Even if it has a copyright symbol on it.
    Its not.
    You need to respect other people's property.
    Its not surprising that Garcia didn't realize it was his image. He shoots hundreds of them a day.
    The fact that you stole someone's property, and they didn't initially realize it, doesn't mean that you get to keep it.

    As far as it being 'transformative'??
    Fairey wouldn't have an image if it wasn't for the use of the AP photo.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Erik, May 13th, 2012 @ 6:23am

    Simple Solution

    Mr Fairey could have avoided the whole situation by claiming parody...linking Obama with Hope. The courts have ruled parody has a different fair use analysis. ;-)

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Jul 31st, 2013 @ 5:13am

    IMAGES OF ADRM SHEPPARD

     

    reply to this | link to this | view in thread ]


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