Copyright: How Much is Enough part 2
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Just under a week ago I wrote about the image above and a news story that caught my eye regarding fair use and copyright law. You can read that post here.
Well it seems that the story is continuing to play out, and now the artist accused of violating the AP’s copyrighted photo has filed a lawsuit asking a judge to find that his poster did not violate copyright law. Read the latest article here.
Shepard Fairey and his lawyers maintain that he did not break copyright laws when he created the Obama Hope image (pictured above).
“Lawyers for Fairey acknowledged that the artist used the photograph. But they said he transformed the literal depiction into a “stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message.”
No doubt the AP will strike back with it’s own countersuit at some point soon as this case will likely have a bearing on future cases regarding copyright law.
I’ve already admitted that I think he changed the image enough to constitute an original work, though I’m a graphic artist who knows what was involved in the creation of this piece. Photographers and even other artists might have a very different take on this matter, and while I may not agree, I’m fascinated by this case and views on both sides.
So what are your thoughts? If you were the judge in this case ¬?how would you rule?
Gil said,
Wrote on February 10, 2009 @ 3:40 pm
I’m a lawyer, but I’ll confess Copyright Law is not my specialty. For whatever my $0.02 is worth here, case law and statutes do allow “fair use” for for scholarly purposes, citation, or incorporation into a derivative work under a four part balancing test. The prongs of this balancing test include whether the work is for commercial or nonprofit educational purposes; nature of the copyrighted work; the amount or substance of the copyrighted work used in the derivative work; and the market value of the derivative work upon the value of the copyrighted work.
Here, the artist engages in some puffery that the color scheme applied to the picture and the addition of the word “hope” have created a “stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message.?Äù
In non-legalese, this sounds like a bunch of bull to me. It sounds like his lawyer spinning– albeit very nicely and effectively spinning– to come up with something emotional to distract from the fact that his client infringed on a skilled photographer’s quality work which he or she(the photographer or news service) sought to take the time to protect with a copyright. The artist could have used a noncopyrighted photo of Obama and applied the same color scheme and captioned “hope” to similar effect.
Clearly, the derivative work here was created for commercial purposes that “borrows” more than subtly upon the copyrighted work. Also, the artist potentially stands to receive a windfall either through commercial sale or political campaign use of the derivative work. Based on this cursory review without any other compelling facts or change in the law, if I was hearing this case I’d find the artist has infringed the copyright.
Jeffrey Friend said,
Wrote on February 10, 2009 @ 3:44 pm
I’m with you. The poster does not even look like the photo, and the president OK’d that poster for the campaign. Can you copyright a face? Cause if you could, that’s where the violation case would be!
Joel Lyman said,
Wrote on February 10, 2009 @ 3:44 pm
Personally speaking, I’d side with Shepard Fairey. As you mentioned, he substantively changed the original image into a new artwork that transcends its original content. If he’d used icanhascheezburger.com to add the word “hope” to the bottom of the image, I’d be more likely to side with AP.
AP has been working against “Fair Use” rules a lot lately. From wikipedia:
In June 2008 Associated Press stated it would be defining guidelines on how many words from its articles and broadcasts could be excerpted by internet bloggers and Web sites without infringing on its copyright. Its first initiative was a letter to Rogers Cadenhead’s “Drudge Retort” news links site requesting the removal of items quoting from 39 to 79 words of AP articles. After an outcry from bloggers[who?], A.P. admitted its letter to Drudge Retort was ?Äúheavy-handed.?Äù[21] It later clarified that it would challenge blog postings ?Äúwhen we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.?Äù It then retreated from that position, announcing it would be reviewing its standards.[22]
Associated Press is trying to further control content in a time where news services everywhere are operating on thinner and thinner profit margins. I further believe that copyright law iin the US is fundamentally misguided from its original intent, where rights would expire after a certain period of time. The original intent of the law is that the eventual expiration of these copyrights would foster more and more innovation in the arts et al. Copyright law in the United States is more used now to continue the profitablity of a legacy image (Mickey Mouse) that to encourage innovation. See the Copyright Term Extention Act.
Len said,
Wrote on February 10, 2009 @ 4:44 pm
Joel,
Love your last paragraph. Nicely articulated. I too am frustrated by the control that lobbyist have exerted on what was once a means to help the arts. The Copyright Commons is a nice alternative that unfortunately will go nowhere.
Brandon Haskins said,
Wrote on February 10, 2009 @ 5:43 pm
As another graphic designer, I’ve been told that eight degrees-of-separation from an original, copyrighted resource is enough to declare a new piece your “own.” My cousin is an intellectual property rights lawyer in Chicago and she said that more than eight degrees is almost always safe.
Knowing what went into making the Obama Hope design, there were plenty more than eight… therefore: HE IS NOT-GUILTY!
Dbalcer said,
Wrote on February 10, 2009 @ 6:11 pm
I am not an artist or a lawyer but I find this case ludicrous. The picture of President Obama is not even unique it could be taken again at another rally by another photographer easily. The poster is unique. I think the photographer of the fireman with the child in OKC had copyright issues but this photo is too generic.
John said,
Wrote on February 10, 2009 @ 8:50 pm
That poster is dead on the photo. You can look at both of them and tell that they are the exact same, just one has been slightly manipulated. If people can’t see that then they need their eyes checked.
Rick Johnsen said,
Wrote on February 11, 2009 @ 8:56 am
I believe this case could go either way dependent on the judge. My question revolves around the earnings the poster generated and whether the creation of the poster devalued the original’s copyright value. I’m not a lawyer, photographer, or graphic artist so I have no dog in this hunt, however it will be interesting to see how this plays out.
Gil said,
Wrote on February 11, 2009 @ 11:39 am
It is tempting to try to occupy a squishy and undefined middle by siding with the artist in this case. Maybe after all the facts are revealed, the artist’s position has merit. However, based upon the visual representation above and the facts laid out in the story, the artist loses.
These appeals to emotionalism about the supposed intent of news agencies are irrelevant. The copyright law is what it is– a body of law designed to protect unique intellectual property, including graphic design and photography. Also, what are the parameters of these “8 degrees”– i.e. how is a degree measured?
Let’s say, for argument’s sake, the artist has used a noncopyrighted photograph as the template for his “hope” poster. Thereafter, another party made a derivative work of “hope” with commercial viability to outstrip the original. Shouldn’t the artist be entitled to reap the benefits from his intellectual property?
Photography is no less an art than graphic design. If it was, anyone could do it and news services wouldn’t have to go through the expense of hiring professionals.