Copyright Infringement And Obama's Iconic Campaign Poster
from the life-in-an-age-of-copyright dept
In one of my meetings last week in Washington DC, during a discussion on copyright, someone mentioned (in an offhand manner) that I should look into the copyright questions surrounding the rather iconic Barack Obama campaign poster that, by now, you’ve probably all seen:
However, as many (though not all) people know, this poster was not created by the campaign, but a street artist named Shepard Fairey, who admitted that he just grabbed a photo of Obama from Google Images in order to create the photo, but had no idea who had actually taken the photo. Thus, as was pointed out to me, technically, all of those posters were almost certainly violating someone’s copyright. It was an interesting question, but before I even had a chance to look into it, one of our readers,
Mark Rosedale, sent in a story about exactly this question. Apparently, after some research, a photo journalist from Philadelphia named Tom Gralish had
tracked down the original photograph — complete with a copyright credit to freelance photographer
Mannie Garcia, who was apparently on assignment from the Associated Press in 2006 when he took the following photo:
The good news, of course, is that, in a follow up, Garcia seems
perfectly happy that his photo was used, and not at all upset: “I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work.” In fact, he admits he did not even realize that his own photo was the inspiration, though, he says “it always seemed so familiar.” He does admit: “I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.”
Still, there may be some unresolved questions here. Considering that the work was done for hire by the Associated Press, it’s possible that the AP might actually own the copyright on the photo — and we’ve already seen that the AP has, at times, had a somewhat twisted view of copyright, especially when it comes to fair use. And, of course, with the Obama administration filling the Justice Department with big copyright supporters, perhaps the DoJ should begin investigating such infringement…
Filed Under: copyright, copyright infringement, mannie garcia, obama, poster, shepard fairey
Comments on “Copyright Infringement And Obama's Iconic Campaign Poster”
Wait a minute...
This is fair use right?
Re: Wait a minute...
No it is not fair use. If you want to look at the legal side of this story check out this link, http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html the dude lists what is wrong with this and how the copyright owner could sue the pants off of Shepard Fairey.
Nothing will happen...
Considering the left leaning journalism* of the AP, they will look the other way. Had a McCain supporter did the same thing with an AP photo of McCain or Palin, the hew and cry would be so great you would think that helpless kittens were being raped in the town square.
Hypocrites and propagandists.
* Which always brings me to wonder, who are the twits at the AP who keep writing stories about apparently driverless SUVs that kill and maim and run amok? Not one of these stories, that appear quite regularly, ever mention that a -human being- was behind the wheel.
Re: Nothing will happen...
What? So, you’re saying that because the AP didn’t kick up a fuss about copyright over a photo (that not even the original photographer realised had been copied), that it’s some kind of conspiracy? That this conspiracy is somehow proven by stories about SUVs?
You either need to get your head checked or start making sense.
Re: Nothing will happen...
So the press is so left leaning that as a business they aren’t willing to pursue $$$ (i.e. go after the “copyright theives”). And the press buried McCain/Palin, it wasn’t the fault of their horribly run campain. And the press is trying to destroy the SUV market by making them into monsters.
Live the X-Files, do you?
Re: Re: Nothing will happen...
So the press is so left leaning that as a business they aren’t willing to pursue $$$
I submit Fox News for your consideration. My understanding is that it is the highest rated news network. Ratings mean $$$. It is typically considered to have a right wing bias.
So if a right wing bias = $$$, wouldn’t news organizations have to value their biases over $$$?
Re: Re: Re: Nothing will happen...
In a capitalistic society, we are claiming that a business has the concept of ideals over basic business purpose (generating revenues/profits)? In addition, we are claiming that the AP, an organization known to go after “bloggers” for revenues, is going to ignore the creation and distribution of this iconic artwork?
Re: Nothing will happen...
I can answer the SUV question.
Once again, cast the blame on someone/thing else. The humans responsible are not the problem. It is the method. I always laugh at these stories/reporters. “A vehicle, occupied by Brian Elser, ran over Edith Brown.” Cars are the problem. Guns are the problem. Not the idiots using them.
Re: Nothing will happen...
This is quite possibly the weirdest rant I’ve ever seen on here.
This is fair use, and a beautiful piece of art.
Transformative
This use is drastically transformative, so it seems like fair use to me. The final work is so distant from the original that even the original artist didn’t recognize it. Really, this is more like a painter using a photograph to paint a portrait of someone. The photographer, in that case, has no copyright claim on the painting. Rather the photo was simply used as a reference for another work.
Re: Transformative
Then, just theoretically, if this is a fair use transformative and so on… Isn’t it what happens with all those movies and music when it gets copied?
Compression is applied, pixels and sounds get de/re/coded. And at the end it is probably the whole new creation? Or do I miss something here?
Wouldn't this be considered a derivative work?
http://www.artslaw.org/DERIV.HTM
Re: Wouldn't this be considered a derivative work?
Yes, this gives appearances of being a derivative work, and yes (to note a point raised in another comment), this also goves the appearance of being transformative. Whether or not it could/would be considered a fair use is, of course, a factual analysis, and the pertinent facts are not sufficiently developed to form a reasoned opinion one way or the other. Nevertheless, if it is a derivative, transformative work, it is a darn fine one.
A more interesting question in my mind (purely hypothetical since there is virtually no possibility this matter would rise to the level of a copyright infringement claim) is what is the nature of the contract between the artist and the Obama campaign organization? No matter who holds the underlying copyright to the original photo (likely the photographer, but the possibility of the AP cannot be dismissed out of hand), I would be very curious to read the artist/campaign contract to see how it handled copyright, warrant of title, and indemnification issues. My experience in licensing suggests that if a legal problem was to arise it would be the artist left holding the bag.
Re: Wouldn't this be considered a derivative work?
It is a derivative work but you have to remember that the owner of the copyrighted photograph has the say in how his work is used. So Fairey would have had to ask him if it was ok to use it in a derivative work. What this story teaches us is that very few people understand copyright laws for artists or VARA. The media does not know jack.
Look at this.
http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html
This is fair use, and a beautiful piece of art.
It might be Fair Use, but I hesitate to call it Art. Five minutes with photoshop will give the same results (which is probably how much time he spent on this bit). Sadly, Shepard Fairey has been known to steal other people’s work, make minor modifications and call it his own. He doesn’t even bother to research the meaning or purpose behind the images he takes. Then when he’s done publishing his image mods, he’ll claim copyright and go after anyone else who uses similar source material.
For more info –
http://www.art-for-a-change.com/Obey/index.htm
Re: Re:
As an avid Photoshop user I do have to agree that similar results can be obtained with a bit of masking to remove the background and the judicious use of one or more well-known Photoshop plugins. BuzzPro by fo2pix quickly comes to mind as an example of one such plugin. Alien Skin’s artsy plugin also quickly comes to mind.
Re: Re: Re:
“As an avid Photoshop user I do have to agree that similar results can be obtained with a bit of masking to remove the background and the judicious use of one or more well-known Photoshop plugins…”
The nice thing about computers is that the degree of transformation is not dependent upon the time spent doing it.
Re: Re: Re:similar results can be obtained with a bit of masking
I dare YOU to take any picture, of anything, from anyone, anywhere, and photoshop a similarly graphically stunning image in three colours!
Please. Otherwise you are as you state.
Friendly challenge,
Erial
Re: Re:
It might be Fair Use, but I hesitate to call it Art. Five minutes with photoshop will give the same results (which is probably how much time he spent on this bit).
So, you’re saying that something can’t be considered “art” if it takes less than five minutes to create? That seems a rather silly assertion. Especially considering the time it would take a Photoshop expert to create something like this versus a novice.
Re: Re: Re:
“So, you’re saying that something can’t be considered “art” if it takes less than five minutes to create? That seems a rather silly assertion…”
I agree. There’s an anecdote involving Picasso late in his life. He whipped up a drawing and told the reporter (I think) that it would sell for so many thousands. The reporter was incredulous and said that it only took him five minutes to create. Pablo said, “No, it took eighty years.”
Re: Re: Re: Re:
Nice anecdote!
I agree it doesn’t really matter how long it takes to create a piece of art. A photograph can be a piece of art, but only takes milliseconds to capture 8though the skill to know what to capture and how can take many years). It sounds like we have a lot of jealous would-be artists here who wish they could create something as timely and resonant as this picture, even if they don’t like it themselves.
Re: Re: Re:2 Re:
Not questioning whether or not it is art, but is it enough to pass a photo through a couple of filters to call your own? Could you take any photo you find anywhere, either online or in a museum, filter and sell?
Re:
Doesn’t matter who owns the photo. It’s fair use. Period.
Re: Re:
I sure hope that’s what the judge thinks when the “owners” of the photo recognize the potential revenues to be earned for something they did nothing to create.
Poetic Justice
Yaknow…just my thought on this….why hasnt someone made Shepard Fairey into his own artwork…and claimed copyright? it would be somehow…fair…for a lack of a better word as this “artist” has already shown us that he has no problems doing the same to others…
But
Isnt Obama leaning to the right in the photo and poster?
Re: Faking...
Body is firmly on the left. He’s faking to the left. It’s a campaign poster. Leftists gotta do the headfake to the center to get the votes.
I’ll bet a fresh photo would be comfortably left-leaning!
Re: Re: Faking to the right, I mean.
Darn, he almost fooled even me!
Re: But
His right, or yours?
😉
*mentally read that as fair use period period period*… it confused me :p
Good luck making that poster in 5 minutes. The cutout filter will not produce those results in one go, it was probably a multi-level process brought into illustrator with a lot of custom path tweeking.
Re: Re:
http://obamiconme.pastemagazine.com/entries/new.html
Re: Re:
Not to mention the time it took the artist to come up with the concept.
Just because you can replicate the comic in 5 minutes doesn’t mean that’s how long it took.
Re: 5 minutes
Maybe not five minutes but it certainly does not require illustrator and custom paths. A few layers based on tone selections and blending and you have it. Like any complex tool, it is how you use it and your knowledge of it.
Re: Re: 5 minutes
“Maybe not five minutes but it certainly does not require illustrator and custom paths. “
Again, so what?
Re: Re:
You need to know how he works. It is a stencil portrait collage. All he used the computer for his printing off images and making them larger. The poster was not made with Photoshop or anything like that. If you see his work in person you will see where the pieces are glued to fit.
The poster is pretty cool, but the design reminds of cold war era communist propaganda posters. Does anyone remember those images in the press?
I was very surprised when I saw it. But I suppose the younger generation of voters don’t recall those images.
“So, you’re saying that something can’t be considered “art” if it takes less than five minutes to create?”
More likely that it generally takes more than some quick photo manipulation. After following that posted link, I can see where the commentator is coming from.
Not the same
In the poster he has an expression of hope.
In the picture it looks like he is listening to a question from the audience on why he can’t provide an actual birth certificate to prove he was born a US citizen.
http://gallery.morpheussoftware.net/anim/958AAA.gif
Would have been a more realistic picture of what the next 4 years hold in store.
Not that Simple
Fairey’s original wasn’t digital (not ‘SHOPD). I think its technically mixed media, paint and print. The version we see a mostly is a simplified version of the original, which I saw at the NPG recently and didn’t even realize it was so detailed until I saw it in person.
The artist, in his interview on the Colbert Report, said that he only has been going after those that infringe his copyright in order to make money. He said that he made it on his own for everyone to use.
Toys a hack
Shepard Fairey is a toy. He made a stencil with the copyright protected image. He has probably stolen every image he has come up with. He has his own style, but he has to rip off others to get a start. That is not progressive art. Look at this,
http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html
So her eis a question, since it was mentioned in the article. If an individual is paid to take a picture, who owns the copyright? Is it the individual who actually took the picture, or the individual who pays for the picture to be taken?
Re: Re:
“So her eis a question, since it was mentioned in the article. If an individual is paid to take a picture, who owns the copyright? Is it the individual who actually took the picture, or the individual who pays for the picture to be taken?”
It depends upon the contract. Corporations are usually savvy enough to claim the copyright (it’s then a ‘work for hire’) while individuals aren’t (which is why your mom’s baby pictures are still under copyright by some defunct photography studio.)
The right to copy
At the heart of copyright, which is an exclusive right that is extended by the government to reproduce and sell a substantively original work, is just that – an exclusive right extended for a period time – after which the work is expected to convert to the public domain.
This period of exclusively has steadily lengthened over time through ever more restrictive copyright laws, at the expense (quite literally) of the public’s interest; to the degree that the public’s interest is often seen as subordinate or secondary.
This notion is antithetical to the very idea of how cultural works are shared and appreciated by society in common; and contrary to how the law was originally conceived.
Copyright wasn’t meant to deprive or even prevent an artist from creating or owning his own original works. It was meant to be a lease bestowed upon the artist so that he or she could benefit commercially from his or her works. The trade off for this privilege is that the public would also benefit by the arrangement as well.
“Fair use” is measure that, in part, reflects the acknowledgment that inspiration does not spring from a vacuum but comes from the works of others. It is meant to accommodate other concerns of course, but sadly its scope has been similarly diminished over time.
Unless we come to a more rational, balanced perspective on this legal arrangement, we risk depriving ourselves of the very things we point to when we talk about our culture.
The Obama poster, the subject of this article, is a perfect example of this. Do you suppose we would have had the Obama poster at all, if the copyrights at issue were zealously guarded by the owners?
Possibly. But less likely.
We know that Shepard Fairey willfully infringed on the photograph. He has made clear in interviews that he found the image on Google. He has willfully admitted that he acknowledges that he infringed on the copyright of the photograph. We know that he created a stencil over an enlarged printed off copy of the photograph he found online based on interviews and articles about the poster. There is room for the photographer to take action. If the jury sided with the photographer the damages would either be actual damage plus the infringer’s profits or statutory damages of up to $150,000. Since the Obama campaign profited from the image the case could get nasty if it were to happen. It might be hard to prove that the Obama campaign willfully infringed on the photograph. On the other hand it is within reason to claim that they had to have known because of the media coverage about the poster and the statements Fairey made about the poster.
I hope that if the photographer sues the artist, then the maker of Obama’s tie should sue the photographer. After all, I’m sure they own the copyright on the print on the fabric, which wasn’t included by the artist.
fair use
more information here
http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/
Fairey's Copyright Infringement
Fairey’s work is NOT protected by Fair Use. Fair Use means that this blogger can use that image in THIS piece discussing the potential infringement, without having to pay royalties for its use to Fairey or the Photographer.
Fairey has indeed violated copyright laws. This image and the money he made from it, constitutes copyright infringement. One can make a case for it being derivative work which means a financial settlement is due either the photographer or AP.
Fairey has a history of copyright infringement, and AP should hold him financially accountable.
Let’s see if communist party supporter, Fairey, will “spread the wealth” he earned for art he never really created.
If we allow Fairey to get away with this, then we open the door for other works to be used in this manner. Enforcement of Copyright laws and prosecution for copyright infringement should not be limited to those of one political party with exceptions being made for those of another party.
Fair Use
Jeremy niether you nor the author of the piece you linked seem to understand what constitutes Fair Use and what the Fair Use doctrine is:
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. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]
It is completely IRRELEVANT what Fairey did with the money he earned from that image including hether or not he donated to the Obama campaign. In truth – the campaign is NOT allowed to receive monies from ill gotten gains, so either way – someone has to pay up to either the AP or the Photographer.
You can be certain if the McCain camp had done this, legal action would be taken.
NO political party should be above the law. No artist is above the law. No citizen is above the law.
Fairey has no clue about fair use.
I see the SuperTouch critique of Mark Vallen’s critique of Shepard Fairey has shown up here. It is only fair to mention Brian Sherwin’s critique of the SuperTouch critique of Vallen. (Lot of critiques going on over Shepard Fairey)
http://www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html
I have to agree with Sherwin. Many of Fairey’s references are not fair use. To be fair use the images by Fairey have to comment on or parody the work that is being referenced and the majority of the public must be able to make that connection when viewing the art. Viewers should be able to know what is being commented on or parodied if fair use is done in the way it should be. Anything else is infringement.
Fairey has referenced works by artists and photographers that are not widely known so it is not fair use. People did not make the connection that Fairey was commenting on Mannie Garcia’s photograph of Obama with Hope just like they did not know he was commenting on a poster by Rene Mederos when selling shirts with a slightly altered version of the Mederos poster. (he settled out of court on that one)
If Shep used Mickey Mouse or the Pepsi label people would make the connection and it would be fair use. (but he would not use a Pepsi label anyways since Pepsi is one of his clients). That is how fair use and parts of fair use like transformative works work. Fairey just finds a cool image and uses it look at how he used the SS skull on a shirt and did not even realize that it was the SS skull until he tried to sue Walmart for copyright infringement because they infringed on his copyright of the skull.
SuperTouch and the ObeyGiant site claim that Fairey is open about where he has referenced from because some of that info is in the Supply and Demand book. That is a poor defense to use for fair use because people should not have to pay $59.95 for a book about Fairey’s art just to be able to find out the connection in his work. That is not how fair use works and I’m glad people are starting to point it out!
The only reason Jamie O Shea wrote the SuperTouch critique of Mark Vallen’s Fairey critique is because two blog posts on the Boston Globe site just brought Mark Vallen’s critique back into the spot light. Like Sherwin says it looks like they are just trying to do damage control before Fairey’s big solo exhibit.
"BAD GRAPHIC"
It’s a horrible graphic, complete with deathly colors, just ghastly. In reality, however, editorially, it bespeaks accurately about what Obama is about.
About the copyright issues, it’s AP’s call, despite their “staff” photog. not objecting. They are owed, at LEAST, payment (to be determined) by both the Fairey guy who “created” the poster and the Obama campaign who has used it heavily in merchandising, including to solicit the Presidency.
Whoever deems this image attractive, however, must also enjoy tours of morgues. The color options in this thing are truly horrible: depressing, depressed, the color of the negative (or, “morte”), deconstruction-run-amok.
CURIOUS, THOUGH:
I’m curious, though, why Fairey/”the poster artist” opted to alter the head shape of Obama (photo shows what he actually looks like, “poster graphic” rendition alters the man’s appearance overall — head’s foreshortened, “condensed” top-to-bottom). Was this an effort to alter inorder to avoid being quite so duplicative of the photo source?
Fairey Fails at Fair Use
This is how I see it. It is not about how nice or lovable you think Shepard Fairey is nor is it about how hard he works. No one is questioning the good that he has done or how hard he works. What people are questioning is the fact that he has willfully infringed on copyrights several times. In one interview he actually said that if he is “busted”, which is what he calls being caught for infringement, he hopes that it is a “good bust”, does not involve legal action.
People are outraged because the same thing that happened to the music industry is now trying to happen against the visual art industry. Contrary to popular belief for many of us art is a business. We create out of passion and if we can profit from it good. But how can an artist profit from hard work and dedication if an artist like Shepard Fairey can take from that work and do what he sees fit to it FOR PROFIT while holding on to a fragile foundation of fair use. If we follow Fairey’s idea of fair use all images would be up for grabs. He tends to use images that are not widely known. That is why fair use does not apply. The photograph of Obama itself was not a widely known photograph.
I’m personally sick of people using Warhol and others to defend Shepard Fairey. Warhol used images that the public knew of. Everyone knew that his Monroe’s were a comment/parody of the famous photograph. The same thing goes for the soup cans. Under fair use today it would be perfectly acceptable to do that. Fairey failed at fair use because people did not make the connection between the photograph and his posters. That is because the photograph itself is not widely known. In order to claim fair use you almost have to use an iconic image as the foundation of the new work. Fairey is only saying it is fair use to cover himself and he is not doing a very good job of that.
Since he donated over $400,000 to the Obama campaign from his profits selling the posters I hope that he will have to give $400,000 to the AP if indeed they are the copyright holder. I also think that members of the Obama campaign need to be questioned and perhaps included in any copyright infringement case that comes of this. Workers from the former campaign are now saying that they never suggested a photograph to Shepard Fairey but other articles from last year suggest the opposite. Either Shepard Fairey is a liar or the former Obama workers are.
If this case goes to court and Shepard Fairey loses to the AP it will be a great win for artists who support copyright protection. It will help to define the limits of fair use… which ARE LIMITED in the first place. Copyright laws were not made to protect people who willfully steal. They were made to protect creators so that they will continue to create knowing their work is safe. If you have not noticed there has been a boom in the number of artists since strict copyright laws have been around. Copyright creates an environment that respects creativity. People would not openly show their works if they thought someone could use it without giving them credit.
Maybe Obama will make a statement about the importance of copyright laws. I think he should apologize for supporting a poster that violated a US law. If he can take the time to send Fairey a personal letter thanking him for his images and for putting work on stop signs I’d think he can take the time to address copyright and why we have it in the first place.
The poster failed at fair use because people did not make the connection with the original image. The basis of fair use is that you comment or parody another work. If that connection isn’t made fair use does not apply. Saying that the public or the AP is silly for not making the connection only helps strengthen the case against Fairey. Keep it up.
There is only three reasons people defend Fairey. They are fan boys. They think a slam against the Hope poster is a slam against Obama. Or they don’t care about copyright in the first place. If this was just some kid posting altered AP images everyone would agree with APs choice to seek compensation.
There are many artists who have alleged the same thing about Fairey. So if AP wins it will open the doors for others to file against Fairey. The guy could be a pauper before it is over and it is because of his poor choices. He should have learned after settling out of court when he infringed on the copyright of Rene Mederos.
Re: Fairey Fails at Fair Use
@Worm
“People are outraged…”
What a load of malarkey. You’re argument is dissembling one-sided “advocate speak”, which leads me to suspect that it’s jurisprudence involvement that has exacerbated this issue of “reproduction and use” that had done more to polarize this issue—it certainly has helped to distort the term of exclusive copyright well beyond any reasonable measure.
Most artists I know (and I actually do know a few because I happen to be one) aren’t nearly as restrictive and exclusionary as you seem to suggest. To the contrary, they almost always tend to be excited by others who been inspired by their work which is precisely the reaction that the photographer had (not AP) towards the poster if you recall.
You are likely a second party to art and the creative process, at best. Regardless, you’ve distorted the picture for the sake of an abstract, overly simplistic proposition—which is quite common of political discourse du jour.
Change You Can Xerox
Maybe Hilary was right after all…
http://www.flickr.com/photos/gelatobaby/2285248646/
@Worm
“People are outraged…”
What a load of malarkey. You’re argument is dissembling one-sided “advocate speak”, which leads me to suspect that it’s jurisprudence involvement that has exacerbated this issue of “reproduction and use” that had done more to polarize this issue—it certainly has helped to distort the term of exclusive copyright well beyond any reasonable measure.
Most artists I know (and I actually do a few because I happen to be one) aren’t nearly as restrictive and exclusionary as you seem to suggest. To the contrary, they almost always tend to be excited by others who been inspired by their work which is precisely the reaction that the photographer had (not AP) towards the poster if you recall.
You are likely a second party to art and the creative process, at best. Regardless, you’ve distorted the picture for the sake of an abstract, overly simplistic proposition – which is common of political discourse du jour.
hey
you are likely a second party to art