AP alleges copyright infringement of Obama [Archive]

geni

5th February 2009, 08:00 AM

Seems pretty clear to me, what do you think?

Some fairly serious transformative elements mean that a reasonable fair use clase could be made.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Use was nonprofit

2. the nature of the copyrighted work;

This would be to do with what caselaw should be considered.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Only used the outline and colour of the pic and because it is completely ripped from context it rather reduces it value as a news photo

4. the effect of the use upon the potential market for or value of the copyrighted work.

None. AP doesn't make any significant earnings from licenseing it's pics to be turned into paintings.

Could well go the other way though.

Rob Lister

5th February 2009, 08:15 AM

Some fairly serious transformative elements mean that a reasonable fair use clase could be made.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Use was nonprofit

2. the nature of the copyrighted work;

This would be to do with what caselaw should be considered.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Only used the outline and colour of the pic and because it is completely ripped from context it rather reduces it value as a news photo

4. the effect of the use upon the potential market for or value of the copyrighted work.

None. AP doesn't make any significant earnings from licenseing it's pics to be turned into paintings.

Could well go the other way though.

The 'transformative' elements seem, at best, contrived; intentionally altering only enough to 'make it different'. The only originallity in it seems to be the button he's wearing in the rendering.

I agree with you about value part but I don't know how the courts determine that. To say the rendering 'has no value' is at best fallacious, given its ubiquitous usage. Seems to me that AP deserves some royalties, but that ball is back to the courts.

Dr Adequate

5th February 2009, 08:28 AM

The 'transformative' elements seem, at best, contrived; intentionally altering only enough to 'make it different'. The only originallity in it seems to be the button he's wearing in the rendering. Do you see in monochrome or something?

I agree with you about value part but I don't know how the courts determine that. To say the rendering 'has no value' is at best fallacious, given its ubiquitous usage. Seems to me that AP deserves some royalties, but that ball is back to the courts. No, no, the photograph has no value, photographs of Obama being two a penny. Or at least, no less value than had it not been used as the basis for a picture.

Rob Lister

5th February 2009, 08:33 AM

Do you see in monochrome or something?

Okay, I get that. No, I see it is a rendering. I also see it is obviously a rendering of a specific copyrighted AP photo. Do you agree?

My question remains: is AP due some royalties?

ETA: I responded to you pre-edit. So I'll ask a different way (while not assuming you have any expertise in copyright law): if the court can determine a value to a specific entity, is AP due a part thereof?

Ziggurat

5th February 2009, 08:38 AM

What I want to know is, who the hell thought that was a good shot to use for a "hope" poster? He looks bored and tired more than hopeful.

geni

5th February 2009, 08:40 AM

The 'transformative' elements seem, at best, contrived; intentionally altering only enough to 'make it different'. The only originallity in it seems to be the button he's wearing in the rendering.

Thats not quite what transformative use means in this context. The normal use for AP photos is in news articles and the like. In this case the image is being used in a very different context so the use itself is transformative.

I agree with you about value part but I don't know how the courts determine that. To say the rendering 'has no value' is at best fallacious, given its ubiquitous usage. Seems to me that AP deserves some royalties, but that ball is back to the courts.

Again not quite what is meant here. The AP image has some value but the question is does the Barack Obama "Hope" poster interfear with that value?

geni

5th February 2009, 08:42 AM

Okay, I get that. No, I see it is a rendering. I also see it is obviously a rendering of a specific copyrighted AP photo. Do you agree?

My question remains: is AP due some royalties?

ETA: I responded to you pre-edit. So I'll ask a different way (while not assuming you have any expertise in copyright law): if the court can determine a value to a specific entity, is AP due a part thereof?

Depends if the poster falls withing fair use. It's also unlikely to be relivant under US law (would be very relivant under say UK law though) since US law tends towards statutory damages in most cases.

geni

5th February 2009, 08:45 AM

What I want to know is, who the hell thought that was a good shot to use for a "hope" poster? He looks bored and tired more than hopeful.

Shepard Fairey. Remeber it wasn't designed or commisioned by the campain.

Kestrel

5th February 2009, 08:59 AM

Does the AP own all the expressions that have ever appeared on Obama's face?

Rob Lister

5th February 2009, 09:03 AM

Does the AP own all the expressions that have ever appeared on Obama's face?

no, only those they expressly capture, as is the case here. Obama may or may not have rights as well. In his case, probably not given his public nature. But that's off-topic.

Dr Adequate

5th February 2009, 09:09 AM

Okay, I get that. No, I see it is a rendering. I also see it is obviously a rendering of a specific copyrighted AP photo. Do you agree? He used the photograph as a model, yes.

My question remains: is AP due some royalties? Not in my view, no.

ETA: I responded to you pre-edit. So I'll ask a different way (while not assuming you have any expertise in copyright law): if the court can determine a value to a specific entity, is AP due a part thereof? As I see it, and I am not a lawyer, Fairey didn't make any money out of it, and the AP didn't lose any money by him producing it, so I can't see what he could possibly owe them.

Rob Lister

5th February 2009, 09:14 AM

He used the photograph as a model, yes.

Not in my view, no.

As I see it, and I am not a lawyer, Fairey didn't make any money out of it, and the AP didn't lose any money by him producing it, so I can't see what he could possibly owe them.

Is the model due her fees? In my view, yes! In fact, most certainly.

Fairey is but one entity. Still, given tee-shirts, posters, internet renderings, etc, if I were AP, I'd be a bit pissed. Would you?

geni

5th February 2009, 09:16 AM

He used the photograph as a model, yes.

Not in my view, no.

As I see it, and I am not a lawyer, Fairey didn't make any money out of it, and the AP didn't lose any money by him producing it, so I can't see what he could possibly owe them.

Statutory damages. The argument would be that AP's business is licenseing photos to well everyone for pretty much whatever use they like. If people are allowed to turn them into paintings that impacts AP's business. Since under US law copyright violations can result in statutory damages AP don't actualy have to show any loss.

Ziggurat

5th February 2009, 09:21 AM

Rob Lister

5th February 2009, 09:22 AM

Statutory damages. The argument would be that AP's business is licenseing photos to well everyone for pretty much whatever use they like. If people are allowed to turn them into paintings that impacts AP's business. Since under US law copyright violations can result in statutory damages AP don't actualy have to show any loss.

That makes sense.

To expand on my objection to Dr. A's point: (I hate to use passive voice but in this case, I hope you'll understand) Money was made. Should AP have to go after each money-maker?

Dr Adequate

5th February 2009, 09:23 AM

Is the model due her fees? In my view, yes! In fact, most certainly. So how much should the photographer pay Obama.?

Fairey is but one entity. Still, given tee-shirts, posters, internet renderings, etc, if I were AP, I'd be a bit pissed. Would you? I think if I was the photographer I'd reflect that the time it took me to press a button and produce a wholly unremarkable image of Obama (a fraction of a second) and then not attempt to distribute on t-shirts and posters (no time at all) is as nothing compared to the effort it took Fairey to produce and distribute his wildly popular screenprint ... which he did for no profit.

Dr Adequate

5th February 2009, 09:25 AM

Statutory damages. The argument would be that AP's business is licenseing photos to well everyone for pretty much whatever use they like. If people are allowed to turn them into paintings that impacts AP's business. Since under US law copyright violations can result in statutory damages AP don't actualy have to show any loss. I suppose the counter-argument would be that if he knew they were going to get all pissy about it he'd have used another photograph.

Rob Lister

5th February 2009, 09:27 AM

So how much should the photogropher pay Obama.?

I think if I was the photographer I'd reflect that the time it took me to press a button and produce a wholly unremarkable image of Obama (a fraction of a second) and then not attempt to distribute on t-shirts and posters (no time at all) is as nothing compared to the effort it took Fairey to produce and distribute his wildly popular screenprint ... which he did for no profit.

I answered the first part already: Obama may be due his rights, but given his public nature, he probably has none; a new thread is needed.

As to the second part: not relevant in the legal sense (but I could be mistaken).

drkitten

5th February 2009, 09:27 AM

Depends if the poster falls withing fair use. It's also unlikely to be relivant under US law (would be very relivant under say UK law though) since US law tends towards statutory damages in most cases.

As far as I can tell, it's an open-and-shut case of "fair use." (Bearing in mind that I am not a lawyer.)

But I suspect that it will be very expensive for Fairey to demonstrate it, which is probably AP's purpose. If they can scare people away from fairly using their images, so much the better for them. And AP's lawyers are probably salaried employees and therefore free.

So it looks to me like a classic SLAPP.

geni

5th February 2009, 09:27 AM

I suppose the counter-argument would be that if he knew they were going to get all pissy about it he'd have used another photograph.

Thats not a vaild defence. Or at least not a defence for any damages below $30,000.

Rob Lister

5th February 2009, 09:31 AM

As far as I can tell, it's an open-and-shut case of "fair use." (Bearing in mind that I am not a lawyer.)

But I suspect that it will be very expensive for Fairey to demonstrate it, which is probably AP's purpose. If they can scare people away from fairly using their images, so much the better for them. And AP's lawyers are probably salaried employees and therefore free.

So it looks to me like a classic SLAPP.

While I dislike SLAPP cases, I don't think this falls within that realm.

Fair Use seems so much of a stretch that I can't even comprehend the argument.

Make one and change my view. I'm as open as a notebook randomly scribbled in.

geni

5th February 2009, 09:33 AM

This doesn't really say much about the legal status of the AP's claim, but apparently derivative works (if not outright theft) is all Fairey seems capable of, and he has violated the copyright of other people in the past.
http://www.art-for-a-change.com/Obey/index.htm

Createing derivatives of existing works is a an accepted practice in art. Shakespeare, Chaucer, whoever wrote gensis heh you would probably find that the Epic of gilgamesh was a derivative of some previous works.

The trick is either to get permission, under US law parody ("Weird Al" Yankovic does both) or use public domain works. One of the problems with the public domain being pushed so far back is that this is harder than it used to be. Still if someone wants to create a derivative of say http://en.wikipedia.org/wiki/File:Punch_sultan_visit_1867reduced.png they are free to do so and it would be a valid form of art.

Dr Adequate

5th February 2009, 09:34 AM

As to the second part: not relevant in the legal sense (but I could be mistaken). I didn't say it was --- what you asked was whether I'd be pissed.

Ziggurat

5th February 2009, 09:41 AM

Createing derivatives of existing works is a an accepted practice in art.

Yes, and up to a point, copyright law permits such things even for works still under copyright. But some of what Fairey did is NOT protected under fair use, and should not be either. For example, this original:
http://www.art-for-a-change.com/Obey/mederos_che.gif
and this copy:
http://www.art-for-a-change.com/Obey/obey_moderos.gif
Unless you just don't believe in copyright to begin with, there's just no reason to permit that sort of plagiarism. The AP photo isn't as clear cut, but Fairey would make a VERY poor choice for a champion of fair use.

geni

5th February 2009, 09:42 AM

As far as I can tell, it's an open-and-shut case of "fair use." (Bearing in mind that I am not a lawyer.)

Not a lawyer but I can argue it either way. In particular since AP own a number of historicaly significant pics they can probably argue that part of their market is for licenceing the pics for things other than news.

But I suspect that it will be very expensive for Fairey to demonstrate it, which is probably AP's purpose. If they can scare people away from fairly using their images, so much the better for them. And AP's lawyers are probably salaried employees and therefore free.

So it looks to me like a classic SLAPP.

He's being defended by Anthony Falzone I assume pro-bono.

Rob Lister

5th February 2009, 09:45 AM

I didn't say it was --- what you asked was whether I'd be pissed.

Fair enough. Getting passed that, do you think AP has case?

geni

5th February 2009, 09:46 AM

Unless you just don't believe in copyright to begin with, there's just no reason to permit that sort of plagiarism.

Not entirely true from a theoretical POV (the US for example only used to give protection to registered works regardless of type) but inter current international treaties it would be quite hard to have a system where that wasn't a copyright violation.

The AP photo isn't as clear cut, but Fairey would make a VERY poor choice for a champion of fair use.

Significant cases have a tendancy to be.

Rob Lister

5th February 2009, 09:56 AM

The AP photo isn't as clear cut, ...

I'd say it is at least as, if not more than clear-cut than your examples.

Policenaut

5th February 2009, 09:56 AM

At least this guy should get some talent and not just livetrace a picture and shade it in red and blue.

http://i113.photobucket.com/albums/n230/squidcrotch/9eaf36bf.jpg
http://i113.photobucket.com/albums/n230/squidcrotch/3b69fa64.jpg
http://i113.photobucket.com/albums/n230/squidcrotch/7332acd1.jpg

Ziggurat

5th February 2009, 10:31 AM

I'd say it is at least as, if not more than clear-cut than your examples.

Not as clear-cut as the pictures I posted (in the sense of legal culpability - the source I would agree is beyond dispute). At least there's a change from photograph to stylized depiction. In the T-shirt picture, all he really did was change the (already flat) colors and resize some elements - given that it's artwork to begin with, I see no possible legal defense. I'm not saying this to defend the guy, he's clearly a talentless hack, more just to point out how egregious some of his previous theft was.

Dr Adequate

5th February 2009, 10:38 AM

Fair enough. Getting passed that, do you think AP has case? I'd go with "fair use".

Nick Bogaerts

5th February 2009, 11:02 AM

Of course, what the AP considers is fair use may not be what the rest of the world considers fair use:

http://www.groklaw.net/article.php?story=20080622144323977

Solitaire

5th February 2009, 04:11 PM

Again not quite what is meant here. The AP image has some value but the question is does the Barack Obama "Hope" poster interfear with that value?

Undoubtedly. The photo being licensed by numerous media organizations resulted in a negative loss to the AP. They should sue him for negative damages.

Cicero

5th February 2009, 06:13 PM

Yes, and up to a point, copyright law permits such things even for works still under copyright. But some of what Fairey did is NOT protected under fair use, and should not be either. For example, this original:
http://www.art-for-a-change.com/Obey/mederos_che.gif
and this copy:
http://www.art-for-a-change.com/Obey/obey_moderos.gif
Unless you just don't believe in copyright to begin with, there's just no reason to permit that sort of plagiarism. The AP photo isn't as clear cut, but Fairey would make a VERY poor choice for a champion of fair use.

The "artist" Fairey is no stranger to charges of trademark infringement, copyright infringement, and overall inability to create an original concept. The product of these perpetrators of schlock is laughingly referred to as "ironic conceptual art." He is actually a toothless Fairey.

Back in 98, Titan Sports threatened a law suit against Fairey to stop using the trademarked name André the Giant for his guerilla sticker campaign.

KingMerv00

5th February 2009, 07:06 PM

Geni is applying the correct 4 factors but I differ on their application slightly.

Some fairly serious transformative elements mean that a reasonable fair use clase could be made.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Use was nonprofit

They were discussing this on NPR. They mentioned he sold T-shirts with this logo on a website somewhere.

2. the nature of the copyrighted work;

This would be to do with what caselaw should be considered.

If I remember correctly (fat chance of that), the "nature" of the work pertains to whether or not it was factual or creative. In other words, was this a candid shot or did he ask Mr. Obama to pose? Did he adjust the lighting? etc. etc.

Creative work is more protected than factual work because it involves more effort on the part of the artist.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Only used the outline and colour of the pic and because it is completely ripped from context it rather reduces it value as a news photo

Seems to me to be a complete lifting of the work. There is no cropping, and the only material lost is the boring background.

4. the effect of the use upon the potential market for or value of the copyrighted work.

None. AP doesn't make any significant earnings from licenseing it's pics to be turned into paintings.

This is the major issue. Did AP lose money they otherwise would have made? I can't answer that.

This is a tough case and it could go either way.

Kestrel

5th February 2009, 09:40 PM

no, only those they expressly capture, as is the case here. Obama may or may not have rights as well. In his case, probably not given his public nature. But that's off-topic.

If I take a photo of Obama when he happens to have that same facial expression, have I violated AP's copyright?

Foolmewunz

5th February 2009, 09:56 PM

If you move it to Politics, I have the following comment to make:

One phone call from the White House press secretary will kill this.
If the AP ever wants their reporters' questions answered in Presidential press conferences (or wants to travel on the plane during campaign trips), maybe they drop the suit.
Otherwise Barack will call on the reporter from the 4H News and Stars and Stripes while the AP guy is jumping up and down shouting "Ooooh, pick me! Pick me!"

autumn1971

5th February 2009, 10:01 PM

All the "artist" has to do is find one other picture of Obama with approximately the same expression, and he's free and clear. Unless there is evidence that this picture was used as a literal template to work from, he can always say that it was one among many that he used to create his image. I can't imagine that such a mundane photograph of a public figure can be resonably claimed to be so unique that it is the only possible image the "artist" could have used.

Policenaut

5th February 2009, 10:07 PM

It is the source. He used livetrace and just added the button, HOPE, a two tone of red and blue, and added a texture overlay. Probably thrown together in less than an hour if he had any Illustrator/Photoshop skill at all.

KingMerv00

5th February 2009, 10:23 PM

KingMerv00

5th February 2009, 10:24 PM

If I take a photo of Obama when he happens to have that same facial expression, have I violated AP's copyright?

No.

KingMerv00

5th February 2009, 10:29 PM

Kestrel

5th February 2009, 10:42 PM

No.

But if I create a drawing with the same facial expression is is a copyright violation?

KingMerv00

5th February 2009, 10:54 PM

But if I create a drawing with the same facial expression is is a copyright violation?

A drawing or a tracing/exact copy?

PhantomWolf

5th February 2009, 11:30 PM

It is proven that he traced it? There are a few differences in the shoulder lines and hair line that would have been picked up in a tracing but not a freehand copy.

KingMerv00

5th February 2009, 11:40 PM

It is proven that he traced it?

Beyond a reasonable doubt in my opinion. (Or preponderance of the evidence if you like.)

Not that it matters. A freehand copy would probably be copyright infringement too.

Foolmewunz

6th February 2009, 12:59 AM

If I worked at the AP and I got that call, I'd record it and make a news story out of it. No one strong-arms me for the sake of politics. :mad:

I guess you don't recall the non-issue of when this occurred during the campaign (bumping press that was unfavorable off the plane).

No one cares. (Well, maybe except you.) With the fan-base of Obama, do you think this would make a difference?

Let's see.

AP photographer takes a pic of Obama. How? Well, because he allowed them to.
They then claim copyright infringement when an Obama supporter uses this in a not-for-profit venture.
And they obviously want to MAKE MONEY off of their FREE image of Obama. (Did I mention they got it FOR FREE?)
And, then we're going to get upset if someone tells them they're being a bunch of greedy tree-slugs and until they learn to share their toys, they can sit in the back of the room?

So if Obama was to say,

"Gee, I think the next time you ask me for a picture or an interview, I'm going to have to give it a second thought. I didn't realize you were claiming exclusive rights to my images. Now wouldn't it be a lot more fair if you just let people who aren't exploiting this for commercial reasons have use?"

You think the Great Communicator II would have trouble selling that? I don't.

I support IPR. I just don't see the damage done to AP, here. An average picture (actually it looks like the kind of crap you find in picture frames when you buy them at Walmart - just "some guy" in brigth color) - one in a million pics of Obama. And they're either, as Doc A said, making this a SLAP issue to discourage others, or they're trying to now get some profit off it. Either one kinda sux.

KingMerv00

6th February 2009, 01:51 AM

I guess you don't recall the non-issue of when this occurred during the campaign (bumping press that was unfavorable off the plane).

No one cares. (Well, maybe except you.) With the fan-base of Obama, do you think this would make a difference?

Bumping unfavorable press is one thing. Screwing around with a lawsuit that has little to do with you is another. Obama is a public figure and has lost a lot of legal rights to his image so this is none of his business.

AP photographer takes a pic of Obama. How? Well, because he allowed them to.
They then claim copyright infringement when an Obama supporter uses this in a not-for-profit venture.

According to NPR, he did make money by selling items with the image on it. I suppose I could have misheard.

And they obviously want to MAKE MONEY off of their FREE image of Obama. (Did I mention they got it FOR FREE?)
And, then we're going to get upset if someone tells them they're being a bunch of greedy tree-slugs and until they learn to share their toys, they can sit in the back of the room?

Two things:

1) Hiring photographers isn't free.
2) You can copyright things that cost nothing to make. Poems for example.

So if Obama was to say,

"Gee, I think the next time you ask me for a picture or an interview, I'm going to have to give it a second thought. I didn't realize you were claiming exclusive rights to my images. Now wouldn't it be a lot more fair if you just let people who aren't exploiting this for commercial reasons have use?"

They are not claiming exlusive rights to images of Obama, only images they generated. Other people are free to to take pictures of Obama, even similar ones.

I support IPR. I just don't see the damage done to AP, here. An average picture (actually it looks like the kind of crap you find in picture frames when you buy them at Walmart - just "some guy" in brigth color) - one in a million pics of Obama. And they're either, as Doc A said, making this a SLAP issue to discourage others, or they're trying to now get some profit off it. Either one kinda sux.

I'll wait until the AP makes their case for damages before I damn them.

Foolmewunz

6th February 2009, 02:54 AM

KM,
Actually - now that I've read a few articles, it's not clear whether he's made any money. He donated the image to a book publisher and gave it to the campaign, evidently. But now that it's getting gallery showings and such, there might be revenue involved. If there is, I'd temper my support for him, certainly.
AP are still not looking so good, though. They own the rights - but the photographer's a stringer. They're protecting their corporate rights - not the rights of some starving photographer/artist. He's evidently not with them any longer.

(The reports of sales on eBay are of individuals who got signed copies from him. More "collectors' greed" as with sports enthusiasts who line up for hours to get Joe Montana's autograph, "for my son, Danny", and then hawk it to another collector two hours later.)

Jeez - nothing's ever cut-and-dry or black and white any longer, is it?

Rob Lister

6th February 2009, 08:33 AM

I'd go with "fair use".

Just so I understand your position...

Do you consider any or all use of AP photos fair use?

If so, I'll ponder other positions and perhaps bring up copyright law in general.

If not, I'll ask where you draw the line.

Kestrel

6th February 2009, 09:12 AM

Just so I understand your position...

Do you consider any or all use of AP photos fair use?

If so, I'll ponder other positions and perhaps bring up copyright law in general.

If not, I'll ask where you draw the line.

Did the AP compensate the copyright holders for any poster that showed up in AP photographs taken during the campaign?

geni

6th February 2009, 09:18 AM

Did the AP compensate the copyright holders for any poster that showed up in AP photographs taken during the campaign?

No but fair use in the context of news reporting is well established.

Kestrel

6th February 2009, 12:03 PM

At least this guy should get some talent and not just livetrace a picture and shade it in red and blue.

The original poster (http://face2face.si.edu/my_weblog/2009/01/now-on-view-portrait-of-barack-obama-by-shepard-fairey.html) is actually a stenciled collage.

KingMerv00

6th February 2009, 01:49 PM

Did the AP compensate the copyright holders for any poster that showed up in AP photographs taken during the campaign?

From Hamlin v. Trans-Dapt of California, Inc. (584 F.Supp.2d 1050)

...copyright infringement is not a strict liability claim (unlike patent infringement), as it requires at least an intent to copy, even if not an intent to infringe.

Bolding mine.

KingMerv00

6th February 2009, 02:33 PM

KM,
Actually - now that I've read a few articles, it's not clear whether he's made any money. He donated the image to a book publisher and gave it to the campaign, evidently. But now that it's getting gallery showings and such, there might be revenue involved. If there is, I'd temper my support for him, certainly.

Even if the infringer makes no money, it can still be infringement. What if I posted Spider-Man 3 in its entirety on Youtube? I made no profit but I still performed an illegal act.

AP are still not looking so good, though. They own the rights - but the photographer's a stringer. They're protecting their corporate rights - not the rights of some starving photographer/artist. He's evidently not with them any longer.

Why does that matter? Don't corporations have rights too?

Jeez - nothing's ever cut-and-dry or black and white any longer, is it?

If a legal education has taught me anything, it is that. :D

Foolmewunz

6th February 2009, 03:10 PM

Even if the infringer makes no money, it can still be infringement. What if I posted Spider-Man 3 in its entirety on Youtube? I made no profit but I still performed an illegal act.

Why does that matter? Don't corporations have rights too?

If a legal education has taught me anything, it is that. :D

Just to be clear, as per my original snide comment about moving it to Politics, I'm pretty sure it's probably, legally, copyright infringement. I'm just taking the moral low ground as one would do in a Politics discussion. Pragmatism, and all that.

ETA: "pretty sure it's probably...."
Sheesh, how wishy-washy can I get??!! I'll leave it because it's funny to read such a waffling line.

Kestrel

6th February 2009, 03:44 PM

Don't corporations have rights too?

In the field of copyrights, corporations have rights that far exceed those of mere citizens.

KingMerv00

6th February 2009, 03:48 PM

In the field of copyrights, corporations have rights that far exceed those of mere citizens.

What extra rights?

(I won't deny that corporations have certain advantages but I am unfamiliar with extra RIGHTS they might have.)

Kestrel

6th February 2009, 04:19 PM

What extra rights?

(I won't deny that corporations have certain advantages but I am unfamiliar with extra RIGHTS they might have.)

Works of art created back when I was young were given protection for 35 years, after which they lapsed into the public domain. Many of the artists that created those works are long dead, but the corporations that bought 35 years of rights had them extended to over 100 by a series of bills, culminating with the Mickey Mouse Protection Act of 1998 (http://www.copyright.gov/legislation/s505.pdf).

KingMerv00

6th February 2009, 04:41 PM

Works of art created back when I was young were given protection for 35 years, after which they lapsed into the public domain. Many of the artists that created those works are long dead, but the corporations that bought 35 years of rights had them extended to over 100 by a series of bills, culminating with the Mickey Mouse Protection Act of 1998 (http://www.copyright.gov/legislation/s505.pdf).

Also known less pejoratively as the Copyright Term Extension Act (http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act).

The act also extended the copyrights of private creators btw. You are right though, corporate authorship yields a longer copyright. I'm not really opposed to the idea since corporate copyrights benefit many people rather than just one.

Makes you want to start a corporation doesn't it?

geni

6th February 2009, 04:51 PM

Kestrel

6th February 2009, 05:56 PM

Also known less pejoratively as the Copyright Term Extension Act (http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act).

The act also extended the copyrights of private creators btw. You are right though, corporate authorship yields a longer copyright. I'm not really opposed to the idea since corporate copyrights benefit many people rather than just one.

Makes you want to start a corporation doesn't it?

If the goal is to encourage new artistic endeavors, extending copyrights past 100 years does nothing of the sort. The artists who created the works are long dead. Even the guys that originally recognized the artistic value and funded it's creation or purchased it from the artists will be long gone. The benefactors of this extended monopoly are the office politicians who managed to take control of the corporation that retains the copyright.

In the rare cases where the artist's family retains the copyright, it doesn't encourage the creation of new artistic works. Why bother learning to paint, play an instrument or write novels when you can just live off the residuals from your grandfather's work?

Uncayimmy

7th February 2009, 11:16 PM

But if I create a drawing with the same facial expression is is a copyright violation?

What was the basis for the drawing? How closely does it resemble the photo?

The thing about fair use is that there's a lot of varied case law because it is such a subjective thing. The thing to bear in mind is that fair use is an exception carved out in a set of laws that grant some very explicit automatic rights for the copyright holder. Fair use is essentially a defense to an infringement. The presumption is that the copyright holder has the exclusive rights to what happens to his works. Unless the use is very clearly fair use, it is best to ask.

The copyright holder doesn't have to prove it wasn't fair use. The other guy has to defend his use as being fair. In this case the infringement is essentially stipulated - the only reason to offer fair use is as a defense. Now, had he said that his work was original and just looked similar, that would be a very different case. Anyone with any experience with Photoshop will tell you that his image clearly started from the original AP photo.

Uncayimmy

7th February 2009, 11:48 PM

They were discussing this on NPR. They mentioned he sold T-shirts with this logo on a website somewhere.
The non-profit nature doesn't mean "don't make any money" - the law specifically states, "nonprofit educational purposes." For example, a teacher can make a few copies of a section of a book to use in a lesson.

Creative work is more protected than factual work because it involves more effort on the part of the artist.
I'm not sure where you get that.

Sometimes people call me a jerk
Because to me copyright infringements irk
Getting the facts is hard
So look at it in this regard
Creating this poem wasn't much work

Courts give more leeway for copying from factual rather than fictional works because dissemination of information benefits society.

This is the major issue. Did AP lose money they otherwise would have made? I can't answer that.
Not would have made, but also could have made. And don't forget there are statutory damages.

This is a tough case and it could go either way.
I doubt that very much.

There was a court case where a guy made sculptures from a copyrighted photo. The court said that was not fair use. See http://en.wikipedia.org/wiki/Rogers_v._Koons

As I stated above, merely being "non-profit" is not the test. The law talks about non-profit educational purposes. When it comes to how much is taken, you can't take the heart of the work. The effect on the market also includes potential sales from other uses.

WildCat

8th February 2009, 12:04 AM

Fairey admits he based it on the AP photograph:
The image, Fairey has acknowledged, is based on an Associated Press photograph taken in April 2006 by Mannie 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.
http://www.latimes.com/news/nationworld/nation/la-na-obama-poster5-2009feb05,0,7377014.story

Dr Adequate

8th February 2009, 02:53 AM

Just so I understand your position...

Do you consider any or all use of AP photos fair use? No.

If so, I'll ponder other positions and perhaps bring up copyright law in general.

If not, I'll ask where you draw the line. Lines are hard to draw. The Sorites Paradox and all that. However, the question seems irrelevant, since I think that this is clearly, not marginally, on the right side of the line.

Merko

8th February 2009, 04:05 AM

Yes, he could have used any other image. And in fact he did, when the Obama campaign noticed that he makes nice looking images, they sent him a couple of photos they had the copyright for, and he turned them into similar images.

For the people who disagree that this guy is a 'real' artist or, I would say that he at least seems to be a pretty good illustrator, which would be a form of artist. Maybe you could produce something in Photoshop in an hour that, in your mind, resembles his works. But my guess is that you would not see thousands upon thousands of people using your Photoshop dabblings.

Merko

8th February 2009, 04:07 AM

Lines are hard to draw.
Yes! Anybody who successfully draws lines must obviously be a real artist.

Kestrel

8th February 2009, 07:53 AM

What was the basis for the drawing? How closely does it resemble the photo?

The thing about fair use is that there's a lot of varied case law because it is such a subjective thing. The thing to bear in mind is that fair use is an exception carved out in a set of laws that grant some very explicit automatic rights for the copyright holder. Fair use is essentially a defense to an infringement. The presumption is that the copyright holder has the exclusive rights to what happens to his works. Unless the use is very clearly fair use, it is best to ask.

The copyright holder doesn't have to prove it wasn't fair use. The other guy has to defend his use as being fair. In this case the infringement is essentially stipulated - the only reason to offer fair use is as a defense. Now, had he said that his work was original and just looked similar, that would be a very different case. Anyone with any experience with Photoshop will tell you that his image clearly started from the original AP photo.

I didn't ask about using Photoshop, I asked about doing a freehand drawing using published photographs of the subject as a reference.

Is a cartoonist required to secure rights to every image he uses as a guide to how Obama looks?

Kestrel

8th February 2009, 08:00 AM

geni

8th February 2009, 08:36 AM

Well fairey has just lost the PR battle

However, the artist that's made quite a fortune by aggressively plagiarizing copying the works of others, is not so happy with the idea of Andre breathing through a SARS mask, and sent the young illustrator a cease & desist demanding he remove the "Protect Yourself" prints from his website, claiming it's a clear copyright violation.

http://animalnewyork.com/news/2008/04/shepard-fairey-threatens-to-su.php

geni

8th February 2009, 08:47 AM

I didn't ask about using Photoshop, I asked about doing a freehand drawing using published photographs of the subject as a reference.

Is a cartoonist required to secure rights to every image he uses as a guide to how Obama looks?

No because de minimis kicks in. Cartoonists generaly don't rely on a single image for their caricatures but form a general impression from a large number of images no single one of which can be indentified as the source.

geni

8th February 2009, 08:53 AM

The non-profit nature doesn't mean "don't make any money" - the law specifically states, "nonprofit educational purposes." For example, a teacher can make a few copies of a section of a book to use in a lesson.

However it also considers if the use is of a commercial nature.

There was a court case where a guy made sculptures from a copyrighted photo. The court said that was not fair use. See http://en.wikipedia.org/wiki/Rogers_v._Koons

Yeah that was a case that came to mind but I'm not sure how relivant it is. In that case the defence made a really specifc defence (and in my view a rather silly one although I don't think they really had any legitimate defence line) so questionable how much it applys to a wider issues.

I think the case is just about winnable for Fairey (assumeing his use has been non-commercial) but could well go against him.

I Ratant

8th February 2009, 09:21 AM

Yes! Anybody who successfully draws lines must obviously be a real artist.
.
And it requires constant practice!
The artist that did the image has been arrested in Boston for tagging!

Rob Lister

8th February 2009, 10:13 AM

No.

Lines are hard to draw. The Sorites Paradox and all that. However, the question seems irrelevant, since I think that this is clearly, not marginally, on the right side of the line.

On what basis do you clearly, non-marginally, draw that line? I believe the onus is on you. Have you either case-law or logic to support your position?

Bikewer

8th February 2009, 10:29 AM

I must say that if the intent is to crack down on artists who use photographs for source material, then much of the community of graphic artists is in deep doo-doo.

I frequent the web page/forum of a prominent comic artist, and one of the members asked him if it was true that sometimes comic artists used commercial photos for reference.
The artist obliged by posting a number of his works alongside the commercially-published photos he'd used as reference material.
Of course, it's not the same as this particular instance, but it's still a rather widespread practice....

Rob Lister

8th February 2009, 10:36 AM

geni

8th February 2009, 10:52 AM

My thoughts are: if this book can be/was legally a copyright violation, then the hope poster has not a chance in hell.

That would be comercial and since the media hasn't changed transformative is more limited.

Uncayimmy

8th February 2009, 11:06 AM

I didn't ask about using Photoshop, I asked about doing a freehand drawing using published photographs of the subject as a reference.

Is a cartoonist required to secure rights to every image he uses as a guide to how Obama looks?

And you didn't answer my questions:
What was the basis for the drawing? How closely does it resemble the photo?

I cited a case in another post where somebody making sculptures based on a photo failed in his fair use defense. It was obvious to a layperson that they were essentially the same image. The copyright holder the right to authorize or not authorize the creation of sculptures based on the image.

If I fill in the details that you keep leaving out, then it would be an infringement to sketch by hand an image that is essentially a reproduction of the copyrighted image, just like in the sculpture example.

To answer your second question, using an image for reference to create original works is not an infringement. An unofficial but simple test would be, "Do scenes in the cartoon closely resemble copyrighted images or do the scenes merely include some elements that in some ways resemble elements in copyrighted images?" You can draw something that looks like Obama, but if you draw something that looks just like a particular photo of Obama, things get sticky.

But even that explanation is not quite enough because it opens the door to derivative works, the rights of a person to his own image, and public figures. Suffice it to say that I can't create my own cartoon "Forrest Gump - Senior Citizen" even though none of my images would resemble anything from the movie.

Just remember that copyright holders are given lots of rights and infringement is a defense to infringement that must be proven.

drkitten

8th February 2009, 11:07 AM

I'm reminded briefly of The Wind Done Gone, which was a parody/reinterpretation of Gone With the Wind. It was written by Alice Randall, who, while no Margaret Mitchell, held its own in terms of character development and, even though mostly borrowed (to put it nicely) scene development. The court considered the re-interpretation factor a bit more than the parody factor (I think they got that wrong, but whatever) so her work, such as it was, ended up on the trash heap of legal precedence. Shame that, IMHO.

Um,....

The latest word on The Wind Done Gone (legally, Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001) per curiam, opinion at 268 F.3d 1257 (http://en.wikipedia.org/wiki/Suntrust_v._Houghton_Mifflin)) is that the injunction against publication was vacated and the case remanded -- after which Margaret's heirs couldn't settle fast enough before they got their asses handed to them.

From the court : "[B]ased upon our analysis of the fair use factors we find, at this juncture, TWDG is entitled to a fair-use defense." As I said, that was the final legal word on the subject....

My thoughts are: if this book can be/was legally a copyright violation, then the hope poster has not a chance in hell.

Note to add: had the book not been 'banned' (for all practical purposes) I'd have never read it. Having read it, I somewhat recommend you get a copy of the bootleg version (the only one available). Make it a day-read.

Are you aware that Amazon has 200+ copies of a "banned" book available.

The only reason it's hard to find is because, legal status notwithstanding, the book itself sucks dead rat through a straw.

Kestrel

8th February 2009, 12:03 PM

And you didn't answer my questions:
What was the basis for the drawing? How closely does it resemble the photo?

I cited a case in another post where somebody making sculptures based on a photo failed in his fair use defense. It was obvious to a layperson that they were essentially the same image. The copyright holder the right to authorize or not authorize the creation of sculptures based on the image.

If I fill in the details that you keep leaving out, then it would be an infringement to sketch by hand an image that is essentially a reproduction of the copyrighted image, just like in the sculpture example.

To answer your second question, using an image for reference to create original works is not an infringement. An unofficial but simple test would be, "Do scenes in the cartoon closely resemble copyrighted images or do the scenes merely include some elements that in some ways resemble elements in copyrighted images?" You can draw something that looks like Obama, but if you draw something that looks just like a particular photo of Obama, things get sticky.

In the Roger's v. Koons case you mentioned earlier, the people and puppies in the photo were clearly staged with the intent of using the image to sell cards, posters and such. It was recognizable and unique. Created as art and intended to be sold as art.

Whenever Obama, speaks, a couple dozen photographers are allowed into the area in front of the stage. They take photos and video pretty much non-stop, catching every expression on his face and every turn of his head. There isn't a lot of creative work involved in capturing his image. Unless something extraordinary happens, non of these have much residual value. They are used to illustrate articles about Obama giving a speech and then forgotten.

If creating a drawing that looks like one of these photos is a copyright offence, no artist would be safe creating a drawing of Obama giving a speech. Somewhere in this huge collection of mundane images, there will be photos that look like the artists work.

jadebox

8th February 2009, 01:04 PM

In Campbell v. Acuff-Rose Music, Inc., a judge wrote:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

The "Campbell" referenced about is Luther Campbell of the rap group 2 Live Crew - not the Campbells that sells soup in cans that Andy Warhol painted - cans which are protected by both copyright and trademark.

I think it's clear that Shepard Fairey's artwork is protected from claims of infringement by the "fair use" doctrine. It's significantly different from the original image, is used in a different matter and for a different purpose, and was definitely "transformed" by the artist to convey a specific message.

-- Roger

Uncayimmy

8th February 2009, 02:10 PM

In the Roger's v. Koons case you mentioned earlier, the people and puppies in the photo were clearly staged with the intent of using the image to sell cards, posters and such. It was recognizable and unique. Created as art and intended to be sold as art.

Whenever Obama, speaks, a couple dozen photographers are allowed into the area in front of the stage. They take photos and video pretty much non-stop, catching every expression on his face and every turn of his head. There isn't a lot of creative work involved in capturing his image. Unless something extraordinary happens, non of these have much residual value. They are used to illustrate articles about Obama giving a speech and then forgotten.
Except, of course, when the image is so visually appealing that it ends up be considered "art." Or in this case when one such image seemed to strike a chord with the masses.

If creating a drawing that looks like one of these photos is a copyright offence, no artist would be safe creating a drawing of Obama giving a speech. Somewhere in this huge collection of mundane images, there will be photos that look like the artists work.
Are you just making this stuff up based on what you think fair use means or have you actually studied copyright law outside of this thread? Because now you're throwing in all sorts of stuff not included in the original question.

For example, if the image is mundane and virtually indistinguishable from other shots published, then good luck proving infringement. The defense could be, "I didn't use your picture. I used this one." The uniqueness of the image would certainly be a factor.

In this case the artist worked from a specific image. That is not in dispute. It has not been brought up that this image is virtually indistinguishable from others like it.

Fair use is not clear cut - I keep saying that. The copyright office gives some examples of what the courts have ruled is fair use:
“quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

The law itself points out purposes for which may be fair use: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Even then there are restrictions on how much you can use.

You can keep going with your hypotheticals all you want, but you need to be much more specific because deciding fair use is in the details. If you really want to make your point, show examples of actual court cases where the circumstances are similar.

Uncayimmy

8th February 2009, 02:36 PM

In Campbell v. Acuff-Rose Music, Inc., a judge wrote:
That was a parody, a completely different beast with a history of protection in the courts. It is not at all applicable in this case.

It's significantly different from the original image, is used in a different matter and for a different purpose, and was definitely "transformed" by the artist to convey a specific message.
Significantly different? Not at all. Look at the superimposed pictures earlier in the thread.

Different purpose? Not really. A photograph could have worked just as well as what ended up being used. The AP could have licensed it for that purpose if they wanted.

Transformed to convey a different message? Not really, since he selected that image for the message it already conveyed. If he had altered the image to make Obama look like a crack addict, you'd be on to something.

Dr Adequate

8th February 2009, 03:00 PM

On what basis do you clearly, non-marginally, draw that line? As I pointed out, I don't. Nor do I need to.

Try reading my post again.

Kestrel

8th February 2009, 06:58 PM

Except, of course, when the image is so visually appealing that it ends up be considered "art." Or in this case when one such image seemed to strike a chord with the masses.

Are you just making this stuff up based on what you think fair use means or have you actually studied copyright law outside of this thread? Because now you're throwing in all sorts of stuff not included in the original question.

For example, if the image is mundane and virtually indistinguishable from other shots published, then good luck proving infringement. The defense could be, "I didn't use your picture. I used this one." The uniqueness of the image would certainly be a factor.

In this case the artist worked from a specific image. That is not in dispute. It has not been brought up that this image is virtually indistinguishable from others like it.

Fair use is not clear cut - I keep saying that. The copyright office gives some examples of what the courts have ruled is fair use:

The law itself points out purposes for which may be fair use: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Even then there are restrictions on how much you can use.

You can keep going with your hypotheticals all you want, but you need to be much more specific because deciding fair use is in the details. If you really want to make your point, show examples of actual court cases where the circumstances are similar.

The title of this forum is Social Issues & Current Events, not Current Legal Theory and Practice. My question about drawing from a photo is not limited to this this specific case but is a query about where society should draw the line. Is it really in the best interest of society to crack down on artists who take the mundane and make it into something special?

In other fields, taking pieces from other works is accepted practice. Hip Hop music is full of little riffs and beats that were sampled from published works. Composers have a long history of expanding on musical themes created by others. Given this, it's hard to see why we should bother awarding properly rights to the shape of Obama's head at a public event.

So go ahead and find the guy guilty and award the AP damages of three times what the AP paid the original photographer for that specific photo of Obama.

drkitten

8th February 2009, 07:11 PM

The title of this forum is Social Issues & Current Events, not Current Legal Theory and Practice. My question about drawing from a photo is not limited to this this specific case but is a query about where society should draw the line. Is it really in the best interest of society to crack down on artists who take the mundane and make it into something special?

Yes, because otherwise people will not have financial incentive to produce the mundane in the first place. That's the whole purpose of copyright law in the first place; to encourage the creation of new things.

In other fields, taking pieces from other works is accepted practice. Hip Hop music is full of little riffs and beats that were sampled from published works.

And a lot of hip hop artists have gotten in serious legal trouble for doing so.

Given this, it's hard to see why we should bother awarding properly rights to the shape of Obama's head at a public event.

I'm not sure that you want to defend copyright infringement by referring to other cases where copyright infringement was proven.

What you should be arguing, morally, is how different the poster is from the photograph from which it derives. If it's different enough not to compete, then it doesn't infringe upon the property rights.

But, oddly enough, that's exactly what you should be arguing legally as well, except the word you should use is "transformative" instead of different.

But quality is -- and should be -- a non-starter. Because the person who holds the property rights to a mundane image is still being deprived of his rights. I may not be the best interior decorator in the world, but that doesn't licence you to come in and repaint my walls.

Uncayimmy

8th February 2009, 07:40 PM

The title of this forum is Social Issues & Current Events, not Current Legal Theory and Practice. [/QUOTES]
Right. The current event is in the subject line. Understanding the nature of infringement requires understanding the law.

[QUOTE]My question about drawing from a photo is not limited to this this specific case but is a query about where society should draw the line. Is it really in the best interest of society to crack down on artists who take the mundane and make it into something special?
Then perhaps the mods will split this into a new thread since the topic is a specific case. That said...

Society has already drawn the line. We've got well over 100 years of case law. The copyright laws have been revisited and revised numerous times. If you want to discuss where society should draw the line, then first learn where it has already drawn the line.

In other fields, taking pieces from other works is accepted practice. Hip Hop music is full of little riffs and beats that were sampled from published works. Composers have a long history of expanding on musical themes created by others. Given this, it's hard to see why we should bother awarding properly rights to the shape of Obama's head at a public event.
Sorry, but that much of that simply isn't true. Sampling even small parts of a song can be a copyright violation or so the USA courts have said. Composers who "expand" on published works risk infringing by creating a derivative work. When you see it done, it's usually because it's been licensed properly or the copyright holder isn't bothering to pursue it for whatever reason.

Here's the thing: Wanna use the shape of Obama's head to make some artwork? Use your eyeballs. Take your own picture. If you really need one particular photograph with the nuances of expression and lighting, then ask for permission and maybe work out a licensing arrangement. That's what ethical people do.

So go ahead and find the guy guilty and award the AP damages of three times what the AP paid the original photographer for that specific photo of Obama.
Fortunately, that's not quite how it works.

Kestrel

8th February 2009, 07:46 PM

What you should be arguing, morally, is how different the poster is from the photograph from which it derives. If it's different enough not to compete, then it doesn't infringe upon the property rights.

But, oddly enough, that's exactly what you should be arguing legally as well, except the word you should use is "transformative" instead of different.

But quality is -- and should be -- a non-starter. Because the person who holds the property rights to a mundane image is still being deprived of his rights. I may not be the best interior decorator in the world, but that doesn't licence you to come in and repaint my walls.

I wasn't thinking in terms of quality, but of creative effort. Posing people and puppies is clearly a creative effort, even if the result is pure dreck. Composing a photograph is a creative effort, but in this case, the composition was mostly one of framing the subject and focusing to capture detail. The poster artist changed the framing and removed almost all of the detail.

In the end, a photograph that was merely documentation of Obama's appearance was transformed into a poster that was inspiring. If the AP was in the business of transforming it's documentary photographs into inspirational images, I could see the artist depriving them of their right to do so. Maybe the AP is due damages, but I can't see them being massive. The artist didn't make millions from this photo and the AP had no reasonable expectation of making more than it's normal fees. If anything, the creation of the poster enhanced their ability to sell copies of this photo in the future.

Uncayimmy

8th February 2009, 09:34 PM

I wasn't thinking in terms of quality, but of creative effort. Posing people and puppies is clearly a creative effort, even if the result is pure dreck. Composing a photograph is a creative effort, but in this case, the composition was mostly one of framing the subject and focusing to capture detail. The poster artist changed the framing and removed almost all of the detail.
Can I assume you are not a photographer or artist? Take another gander at the work in question.

http://forums.randi.org/imagehosting/thum_28160498fbdae244c6.jpg (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=15225)

Photography is about painting with light. I have noted with the letters A through K how the artist made his artistic decisions based on the light and shadows in the photograph. I didn't point every instance, but it's patently obvious that nearly every "artistic" decision he made was based on what was in the photo. All he did was make a some choices about red, white and blue.

Everything that makes his image special is already in the original. Had Obama's face been hit by a strong flash, it would have appeared two dimensional and subsequently not interesting at all. Had Fairey used that basic image as a model and sketched his own interpretation using light and shadow. we might approach what you have been describing.

As it is Fairey used all of the special elements of the photo from his expression to his eyes down to the highlights and shadows that make it so dramatic. As has been pointed out, a talented user of Photoshop could produce what he did in an hour by starting with the photograph.

Kestrel

9th February 2009, 05:56 AM

Can I assume you are not a photographer or artist? Take another gander at the work in question.

http://forums.randi.org/imagehosting/thum_28160498fbdae244c6.jpg (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=15225)

Photography is about painting with light. I have noted with the letters A through K how the artist made his artistic decisions based on the light and shadows in the photograph. I didn't point every instance, but it's patently obvious that nearly every "artistic" decision he made was based on what was in the photo. All he did was make a some choices about red, white and blue.

Everything that makes his image special is already in the original. Had Obama's face been hit by a strong flash, it would have appeared two dimensional and subsequently not interesting at all. Had Fairey used that basic image as a model and sketched his own interpretation using light and shadow. we might approach what you have been describing.

As it is Fairey used all of the special elements of the photo from his expression to his eyes down to the highlights and shadows that make it so dramatic. As has been pointed out, a talented user of Photoshop could produce what he did in an hour by starting with the photograph.

The highlights and shadows you pointed out are there because that is what Obama's face looks like. Most of those highlights and shadows are present on any human face.

Giving the photographer credit for "painting with light" when he had nothing to do with lighting the subject is also rather silly. He didn't set up the lights and pose the subject for a dramatic studio portrait. He didn't get up before dawn and sit in the perfect spot waiting for the first morning light on a mountain. He just stood in the press area and snapped pictures. This one isn't really memorable or unique. If it was, someone would have noticed Fairey's "artistic crime of the century" when the poster was first produced.

Aitch

9th February 2009, 08:35 AM

Seems Mr Fairey has other problems (http://www.guardian.co.uk/world/2009/feb/09/obama-poster-graffiti-charge).

Mind you, one or two of these (http://www.guardian.co.uk/artanddesign/gallery/2008/nov/10/art-uselections2008?picture=339463611) are quite amusing. ;)

Rob Lister

9th February 2009, 10:04 AM

As I pointed out, I don't. Nor do I need to.

Try reading my post again.

I read it again and came to the conclusion: I don't blame you for not wanting to defend him.

The onus is on you, if you do.

Uncayimmy

9th February 2009, 10:15 AM

The highlights and shadows you pointed out are there because that is what Obama's face looks like. Most of those highlights and shadows are present on any human face.
So I can assume that you are not a photographer or artist because that's simply not true.

Kestrel

9th February 2009, 12:33 PM

So I can assume that you are not a photographer or artist because that's simply not true.

Scroll back in this thread to your photos and take another look.

Given similar lighting conditions

People with foreheads will show a highlight at A and a darker area at B.
People with cheekbones will show a highlight at D and a darker area at E.
People with chins will have a highlight at G and a darker area at H.

None of this is particularly dramatic. It's cause by the basic form of the human face. Move the lighting around a bit and the positions of highlights and shadows move. The specific shape of these highlights and shadows is due to the shape of Obama's head.

The lighting is better than a direct flash and glowing red eyes, but anyone who has taken a basic photography class knows that. And remember that the lighting was set up by the event organizers, not staged by the photographer.

Mannie Garcia, didn't recognize the poster was created using his photo (http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html)before he was told by someone working for Fairley.

I was informed by James Danziger who represents the art gallery that represents James Fairey on January 21, 2009, while I was on White House Duty, that the photograph used by Mr. Fairey was in fact, based upon a photograph I made in April of 2006.

If the photographer who took the photo didn't recognize the poster as being based on his work, isn't this evidence of a major transformation?

Dr Adequate

9th February 2009, 12:37 PM

I read it again and came to the conclusion: I don't blame you for not wanting to defend him.

The onus is on you, if you do. Your post combines a glaring non sequitur with what appears to be a complete disconnection from reality, or at least that small portion of reality containing my posts.

Uncayimmy

9th February 2009, 01:14 PM

Given similar lighting conditions
Similar angles towards the light (people move, ya know)
Similar imperfections and moisture on the skin
Similar angle towards the photography
Similar choices in exposures

This proves my point despite your inability to understand. There are a number of elements that make the photo unique. One of them, as you pointed out, is the lighting. Once Fairey had it in digital format, he could have made countless choices about shading. He didn't. He merely copied what was already in the photo.

None of this is particularly dramatic. It's cause by the basic form of the human face. Move the lighting around a bit and the positions of highlights and shadows move. The specific shape of these highlights and shadows is due to the shape of Obama's head.
Wow, Scoop, thanks for the inside story!

Move the head around and things change. Use a fill-flash and things change even more. Change the camera angle towards the subject things change.

You're missing the point. Where the shading falls depends on a number of factors. That's part of artistic choice. Fairey used the choices made by someone else in regards to lighting.

Had he taken a generic portrait with broad lighting and added all sorts of shading as if it was shot with short or butterfly lighting, that would indicate efforts to transform the image.

Fairey was lazy. He didn't draw anything. He didn't take a photo. He surfed the web until he found something that he liked. He used virtually every artistic element in the original and made a few choices about the use of red, white or blue to replace the existing shading. He never asked permission or gave credit.

As a society, is that what you want to protect? Do you want to tell photographers that they had better think twice about publishing any photos because people like Fairey might convert them into t-shirts?

And remember that the lighting was set up by the event organizers, not staged by the photographer.
Actually, I don't know the circumstances of the lighting. I do know that as a photographer I make all sorts of decisions about my camera (lens, apertures, exposure times, fill flash) as well as myself (my position relative to the subject and the lighting, my timing, composition).

Had it been outdoors, the lighting would have been staged by the Big Bang. Does that make Ansel Adams any less of an artist? It's like you're arguing that if a photographer doesn't control ever aspect of artificial lighting, his work is not worthy of copyright.

Mannie Garcia, didn't recognize the poster was created using his photo (http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html)before he was told by someone working for Fairley.
That doesn't surprise me in the least.

If the photographer who took the photo didn't recognize the poster as being based on his work, isn't this evidence of a major transformation?
Not at all. I don't always recognize every photograph I take when I see it in its original form, and I'm not even a professional. Do you realize how many frames a photographer shoots at an event like that?

Dr Adequate

9th February 2009, 02:19 PM

As a society, is that what you want to protect? Do you want to tell photographers that they had better think twice about publishing any photos because people like Fairey might convert them into t-shirts? But why should this make them "think twice"? Who's going to say to himself: "Well, I was going to take a photograph, what with me having a job as a news photographer ... but now that it's been established that an artist can use the photograph as a model for a screenprint, I'm not going to"?

No, I'll tell you who's going to have to "think twice" if this isn't legal. As Bikewer said: "If the intent is to crack down on artists who use photographs for source material, then much of the community of graphic artists is in deep doo-doo".

Uncayimmy

9th February 2009, 03:34 PM

But why should this make them "think twice"? Who's going to say to himself: "Well, I was going to take a photograph, what with me having a job as a news photographer ... but now that it's been established that an artist can use the photograph as a model for a screenprint, I'm not going to"?
My use of "photographer" was really "copyright owner" - meaning individuals and businesses. Are you arguing that a newspaper or news service like the AP should only be allowed to use the image in just one particular fashion and no others? Or what about a photographer who only licenses the photo to be used once in a news article? Are you arguing that once it is published anybody can use that particular image as the basis for some another commercial work?

No, I'll tell you who's going to have to "think twice" if this isn't legal. As Bikewer said: "If the intent is to crack down on artists who use photographs for source material, then much of the community of graphic artists is in deep doo-doo".
Yes, they are in deep doo-doo. Look at the case of the sculptor who used a photo as his "inspiration." The photographer won the case. How that money was distributed was then based on the contract with the model. Some models sign away all the rights based for a sitting fee. Others negotiate agreements to be paid royalties.

As I have stated repeatedly, fair use is a complicated issue that is decided on a case by case basis. Since we're in the realm of commercial rather than educational use, the other factors become very important. If the "new" work looks very much like the "source" material, that's going to be a problem. By contrast if an artist looks at several sources and creates a new image that resembles the subject but not any particular image, that's not an infringement.

Of course, this leads us to a discussion of the subject matter. Obama, being a public figure, essentially loses much of the control over his likeness. By contrast a professional wrestler's image is much more protected. An artist can't just go around selling his totally original creations (say a photo) without at least some restrictions. A newspaper article would be fine. Putting the photo up in his home would be fine. Making it into a poster and selling it would be not.

Tying this back to Fairey's case, he really didn't need Obama's permission to use his image. Had that photo been of you, you could have gone after him. And since Fairey admitted to using one particular AP photo as the source and it very clearly uses the majority of that image as well as the elements that distinguish it from other images of Obama, the AP can go after him as well.

What really annoys me is that Fairey could have just approached the AP and asked for permission. Any graphic artist can do that.

Kestrel

9th February 2009, 04:05 PM

Actually, I don't know the circumstances of the lighting. I do know that as a photographer I make all sorts of decisions about my camera (lens, apertures, exposure times, fill flash) as well as myself (my position relative to the subject and the lighting, my timing, composition).

Had it been outdoors, the lighting would have been staged by the Big Bang. Does that make Ansel Adams any less of an artist? It's like you're arguing that if a photographer doesn't control ever aspect of artificial lighting, his work is not worthy of copyright.

Actually I was responding to your line about a photographer being a painter with light.

Ansel Adams would qualify as a painter with light. He picked his subjects, the time of day and the weather conditions to capture the image. He followed up with all sorts of dodging, masking and burning tricks in the darkroom to create the style we recognize as his.

Banging away at the shutter from the press area isn't in the same league.

This same photographer, working on other subjects may actually be pretty good. When he has some control over lighting, subject matter, composition and all of those things that can make a great photograph. In this case, he had one person to capture, with fixed lighting, with no control over the subject and limited selection of his camera position.

I don't buy your assertion that the original photo is a photographic masterpiece. It's OK, but not really special. Fairley transformed it into something memorable and interesting, at least in the eyes of the public. Even if the process wasn't complicated, he made artistic decisions that were not obvious beforehand.

Uncayimmy

9th February 2009, 05:48 PM

Banging away at the shutter from the press area isn't in the same league.
I see. So we should base copyright protection on the effort it takes to create that image.

This same photographer, working on other subjects may actually be pretty good. When he has some control over lighting, subject matter, composition and all of those things that can make a great photograph. In this case, he had one person to capture, with fixed lighting, with no control over the subject and limited selection of his camera position.
That actually makes it more difficult to capture a quality image.

I don't buy your assertion that the original photo is a photographic masterpiece.
I don't buy your assertion that I said it was a photographic masterpiece. Are we talking about a photo of a straw man?

It's OK, but not really special.
Your argument fails on two points. First, obviously it was special. Otherwise, why did Fairey choose it? Second, how many other images just like that are there floating around? I haven't seen any. Have you? As I said before, if Fairey was arguing that his image was very similar to a dozen other similar photos and that his image was based on several of them, it would be a different case.

That aside, I find your argument silly. Are you really argue that crappy work should not be given copyright protection? That's what it sounds like.

Fairley transformed it into something memorable and interesting, at least in the eyes of the public. Even if the process wasn't complicated, he made artistic decisions that were not obvious beforehand.
LOL! I pointed out a dozen artistic decisions that were obviously derived from the original photo. He didn't make his own shadows even though he could have. He just took what was already there. That's but one factor.

The other MAJOR factor is that the copyright holder is the one that has the right by statute to create and authorize derivative works. Let's reverse the situation. If I see a painting that I like, can I find lookalike models and create a photograph that mimics the scene? Can I create a sculpture? Can I take a photo of your painting and call it my own?

What you and others seem to be forgetting is that this isn't about art, it's about commercialism. Fairey and every other artist can do everything we've described in the privacy of their own homes. Selling those creations is another matter entirely. What you are proposing is that an copyright holder gets one shot with whatever he creates. After that, anybody can create derivative works.

If you want to persist with this, please pick an argument. I can't tell if you're arguing about the current law or what you think it should be. If you are proposing changes, then state them along with the reasons why. If you want to argue the law, give some case law examples.

Dr Adequate

9th February 2009, 06:07 PM

My use of "photographer" was really "copyright owner" - meaning individuals and businesses. Are you arguing that a newspaper or news service like the AP should only be allowed to use the image in just one particular fashion and no others? No; but the fact is that they didn't. If they'd been bringing out their own T-shirts and he'd done a knock-off, that would be different. As it is, it neither picks their pocket nor breaks their leg.

Or what about a photographer who only licenses the photo to be used once in a news article? Are you arguing that once it is published anybody can use that particular image as the basis for some another commercial work? I really don't see why a published photograph can't be used as a model for something that isn't a photograph. There's no element of competition. Fairey didn't prevent them from doing what they wanted to do, nor in any way cut into their profits from doing it.

Yes, they are in deep doo-doo. What a shame. Is that what you want?

As I have stated repeatedly, fair use is a complicated issue that is decided on a case by case basis. Since we're in the realm of commercial rather than educational use, the other factors become very important. If the "new" work looks very much like the "source" material, that's going to be a problem. By contrast if an artist looks at several sources and creates a new image that resembles the subject but not any particular image, that's not an infringement. Watch out, or Rob Lister will ask you to draw a precise line of demarcation.

Of course, this leads us to a discussion of the subject matter. Obama, being a public figure, essentially loses much of the control over his likeness. By contrast a professional wrestler's image is much more protected. An artist can't just go around selling his totally original creations (say a photo) without at least some restrictions. A newspaper article would be fine. Putting the photo up in his home would be fine. Making it into a poster and selling it would be not. Strange.

Tying this back to Fairey's case, he really didn't need Obama's permission to use his image. Had that photo been of you, you could have gone after him. Also strange. I own copyright on many things, but I was not aware that my face was one of them.

And since Fairey admitted to using one particular AP photo as the source and it very clearly uses the majority of that image as well as the elements that distinguish it from other images of Obama, the AP can go after him as well.

What really annoys me is that Fairey could have just approached the AP and asked for permission. Any graphic artist can do that. I guess he didn't realize there'd be a problem. I wouldn't have.

Uncayimmy

9th February 2009, 07:55 PM

No; but the fact is that they didn't. If they'd been bringing out their own T-shirts and he'd done a knock-off, that would be different. As it is, it neither picks their pocket nor breaks their leg.
Actually, it would not be all the different under current USA case law. For the sake of understanding your point, assume that the photo was not Obama but rather a photo that AP commissioned. They hired the model. They built the set. They paid the photographer to produce the work and release all rights.

I know for a fact that the AP would have the weight of the law behind them in deciding who, if anyone, could do essentially what Fairey did artistically and sell it. Are you arguing that current USA law should not allow a copyright holder to control what, if any, derivative works are marketed?

I really don't see why a published photograph can't be used as a model for something that isn't a photograph. There's no element of competition. Fairey didn't prevent them from doing what they wanted to do, nor in any way cut into their profits from doing it.
The phrase "use as a model" is loaded. The courts look not only at how much of the original is used but how vital what is used is to the original.

If it helps, reverse the situation. If you create a painting, should I be permitted to photograph it, tweak a few things in Photoshop, then market it as my own?

In the paragraph below I am referring to making the minimal amount of change to the work required to publish it to another medium so as to avoid discussions of what becomes a new work.

The copyright holder should have control over how his work is distributed. If I don't want my work on a t-shirt, I do not have to permit it. Period. What right should anyone else have to my work? Just because I choose or have not chosen yet to put it on a t-shirt doesn't mean that anyone else should be allowed to.

What a shame. Is that what you want?
Yep. Over the years I have derived major parts of my income from intellectual property (software, writing, photography, music). I've had people infringe on my work. It sucks. I've also paid the proper licensing fees when required. And quite often all it takes is asking permission to get it.

Watch out, or Rob Lister will ask you to draw a precise line of demarcation.
Well, there is one very precise line: don't sell or publish it. No artists are being hindered in their artistic endeavors. Commercial enterprise is another matter. These laws protect them. If they don't want that protection, they don't have to pursue infringement. That doesn't mean they should assume others feel the same way.

Also strange. I own copyright on many things, but I was not aware that my face was one of them.
It's a matter of privacy and publicity rights, not copyright. It's also a bigger can of worms as far as I am concerned. That's why I use model release forms just to play it safe.

I guess he didn't realize there'd be a problem. I wouldn't have.
It would surprise me greatly that he didn't know. After all, he allegedly threatened to sue someone for appropriating his work in a similar way:
http://animalnewyork.com/news/2008/04/shepard-fairey-threatens-to-su.php

What's really interesting is that the "DOPE" version has a much better chance of being considered fair use being satirical in nature and having removed many of the elements that make HOPE distinctive.

http://forums.randi.org/imagehosting/thum_281604990f9b9d15c5.jpg (http://forums.randi.org/vbimghost.php?do=displayimg&imgid=15246)

UserGoogol

9th February 2009, 08:07 PM

At least this guy should get some talent and not just livetrace a picture and shade it in red and blue.

Talent is merely a means to an end. If you can create art without talent, why the hell would any rational person bother to do it with? The Obama poster successfully expressed a certain set of emotions, vague hope regarding Obama with perhaps some irony thrown in for seasoning. It did what it set out to do. There is no added value gained by freehand drawing it or being imaginative, except a bit of self-righteous ego patting, and Shepard Fairey probably has enough of that to begin with.

jadebox

10th February 2009, 11:13 AM

Significantly different?

Yes. The artwork is obviously not a press photo.

Different purpose?

Yes. Unlike the photo, the artwork was created to get people to support Obama.

Transformed to convey a different message?

Yes. A press photo is meant to capture a specific instance in time - to describe a specific event or situation. The artwork is intended to present a political message.

As someone who makes his living through "intellectual property," I realize there's a fine line separating "fair use" from stealing. In this case, I think it's clear that, even though the artwork was probably inspired by the photo, it's different enough and unlikely to negatively affect the value of the photo to the copyright holder (which might not be the AP, BTW).

-- Roger

Uncayimmy

10th February 2009, 02:14 PM

Yes. The artwork is obviously not a press photo.

Nor is a sculpture a postcard, but the courts ruled that to be an infringement.

Yes. A press photo is meant to capture a specific instance in time - to describe a specific event or situation. The artwork is intended to present a political message.
The unaltered photo could be used for any number of messages from hateful to hopeful. I mean, what's the logic here? If I go to iStockPhoto, find an image I like, but use it in a way that matches none of the keywords they entered, that's okay?

An image can be used in many ways. Does the copyright holder have to envision every possible way and also act on those ways? Suppose the campaign had approached the AP and asked if they could print the picture in a brochure, but the AP said no. Would the AP be within their rights?

As someone who makes his living through "intellectual property," I realize there's a fine line separating "fair use" from stealing. In this case, I think it's clear that, even though the artwork was probably inspired by the photo, it's different enough and unlikely to negatively affect the value of the photo to the copyright holder (which might not be the AP, BTW).
What makes you think that a negative economic effect is required for infringement?

Kestrel

10th February 2009, 02:55 PM

Nor is a sculpture a postcard, but the courts ruled that to be an infringement.

In that case the sculpture was easily recognized as by the people that created the postcard as the same image. It was also clear to any lay person looking at the sculpture. Nobody recognized that the Obama Hope poster was derived from a specific photograph. That was only known when the photographer who took the image was informed by a gallery manager working for the poster artist.

The photographer also said that rights to this photograph were never sold or assigned to the AP.

Uncayimmy

10th February 2009, 05:22 PM

In that case the sculpture was easily recognized as by the people that created the postcard as the same image. It was also clear to any lay person looking at the sculpture. Nobody recognized that the Obama Hope poster was derived from a specific photograph. That was only known when the photographer who took the image was informed by a gallery manager working for the poster artist.
Again, that is irrelevant. If you take thousands of pictures of a subject and so do thousands of other people, they all tend to blur together. Why do you think this matters? Do you think it's presumptive proof that Fairey's image is sufficiently different?

What counts is whether laypersons seeing the two images side by side would consider them sufficiently different to not be a derivative work but actually an original creation.

The photographer also said that rights to this photograph were never sold or assigned to the AP.
Do you you really want to into a debate over what constitutes work for hire?

jadebox

11th February 2009, 07:19 AM

Nor is a sculpture a postcard, but the courts ruled that to be an infringement.

You're ignoring the point many others have made. The postcard was based on the sculpture which was created by an artist. The artist had control over most every aspect of the sculpture - including choosing the subjects and how the subjects were posed. In this case, the photographer did not have control over the elements and the photo is of something in the public domain (Obama). The situations are quite different.

The unaltered photo could be used for any number of messages from hateful to hopeful. I mean, what's the logic here? If I go to iStockPhoto, find an image I like, but use it in a way that matches none of the keywords they entered, that's okay?

An image can be used in many ways. Does the copyright holder have to envision every possible way and also act on those ways? Suppose the campaign had approached the AP and asked if they could print the picture in a brochure, but the AP said no. Would the AP be within their rights?

I don't understand the relevance of any of the above. :-)

What makes you think that a negative economic effect is required for infringement?

It's part of the criteria used to determine "fair use" - "the effect of the use upon the potential market for or value of the copyrighted work." (Copyright Act of 1976, 17 U.S.C. § 107).

-- Roger

Uncayimmy

11th February 2009, 02:16 PM

You're ignoring the point many others have made. The postcard was based on the sculpture which was created by an artist. The artist had control over most every aspect of the sculpture - including choosing the subjects and how the subjects were posed. In this case, the photographer did not have control over the elements and the photo is of something in the public domain (Obama). The situations are quite different.

I assume the above was an accidental misstatement. You're alleging that the photographer had control over the models and lighting, not the sculptor, right? The nature of photography is that there are practical limits to to what elements can be controlled.

So what, exactly, is your argument? Are you saying that if I, as a photographer, do not exert control of many of the elements, I am not allowed a copyright?

If that's the case, what about the shot of the nude Vietnamese girl running in the street towards the camera? Public domain? How about nature and wildlife shots? Try getting a wild lion to pose under some hot lights.

It's part of the criteria used to determine "fair use" - "the effect of the use upon the potential market for or value of the copyrighted work." (Copyright Act of 1976, 17 U.S.C. § 107).

You are misunderstanding what that says. The potential market includes other ways to use the work. If I sell my photo as poster prints, that value is not diminished by printing t-shirts or coffee mugs. However, if somebody else does it, that has an effect on the potential market for my work. By contrast a school teacher making some photocopies to use in an art lesson really doesn't diminish the potential market in any measurable way.

The sculpture case in an excellent example. The sculpture did not diminish the value of the postcards. However, it took away an entire potential market for the image.

jadebox

19th February 2009, 11:44 AM

I assume the above was an accidental misstatement. You're alleging that the photographer had control over the models and lighting, not the sculptor, right? The nature of photography is that there are practical limits to to what elements can be controlled.

So what, exactly, is your argument? Are you saying that if I, as a photographer, do not exert control of many of the elements, I am not allowed a copyright?

If that's the case, what about the shot of the nude Vietnamese girl running in the street towards the camera? Public domain? How about nature and wildlife shots? Try getting a wild lion to pose under some hot lights.

You are misunderstanding what that says. The potential market includes other ways to use the work. If I sell my photo as poster prints, that value is not diminished by printing t-shirts or coffee mugs. However, if somebody else does it, that has an effect on the potential market for my work. By contrast a school teacher making some photocopies to use in an art lesson really doesn't diminish the potential market in any measurable way.

The sculpture case in an excellent example. The sculpture did not diminish the value of the postcards. However, it took away an entire potential market for the image.

I think what I said was clear. I certainly didn't say the things you imply that I said.

I'm getting the impression that you're just trolling, but I'll try restating my point.

A photographer holds a copyright on the photographer, but not on the subject of the photo. The photographer does not have a copyright on Obama's face (which has been photographed, painted, and drawn many times). So, a painting of Obama's face is unlikely to violate the photographer's copyright.

If, however, the photographer captures a unique event or contributes unique elements to the photo, such as the way Annie Leibovitz poses her subjects, then a painting based on the photograph would be easily recognizable as a painting of the photograph (rather than of the subject of the photograph) and would certainly be a copyright violation.

Your comments on "fair use" support what I said. The use of Obama's image in the artwork has no adverse affect on the potential market for the press photo. Most likely, the simularity to the artwork adds value to the photo.

-- Roger

Uncayimmy

19th February 2009, 02:25 PM

I think what I said was clear. I certainly didn't say the things you imply that I said.

You weren't clear at all. You mixed up words just like you did below, unless you really mean that a photographer holds a copyright on a photographer, which makes no sense just as your comment about the sculptor making choices about lighting when you meant photographer.

I'm getting the impression that you're just trolling, but I'll try restating my point.
You don't get that impression at all. You're just frustrated and blaming it on me.

A photographer holds a copyright on the photographer, but not on the subject of the photo. The photographer does not have a copyright on Obama's face (which has been photographed, painted, and drawn many times). So, a painting of Obama's face is unlikely to violate the photographer's copyright.
Of course, that is not the issue here at all. It's not a painting of Obama's face. It is a digitally altered photograph. One particular photograph, in fact. And his "choices" regarding coloring directly correlates to the shading in the existing photograph.

If, however, the photographer captures a unique event or contributes unique elements to the photo, such as the way Annie Leibovitz poses her subjects, then a painting based on the photograph would be easily recognizable as a painting of the photograph (rather than of the subject of the photograph) and would certainly be a copyright violation.
Again, that's not in dispute.

Your comments on "fair use" support what I said. The use of Obama's image in the artwork has no adverse affect on the potential market for the press photo. Most likely, the simularity to the artwork adds value to the photo.
A reasonable conclusion based upon incorrect assumptions and a repeated misunderstanding of potential market. The "potential market" of any work is not limited to the medium in which it was created.

There are several factors when judging fair use. As I argued much earlier in the thread, Fairey's "choices" were heavily dependent on the original photograph he was altering. He acknowledges using that one image as his starting image. If you compare the two side by side, it's patently obvious that they are remarkably similar. Compare it to 50 other Obama photos, and you'll still pick the AP photo as the source.

The burden is not on the AP to show that it is similar. The burden in the the fair use defense is for the defendant to show how much he changed it.

Uncayimmy

1st March 2009, 09:43 PM

Here is the full version of the original photo, which in my opinion lends credence to the fair use claim. Apparently he did not work from the cropped version. It also appears the cropped version has been altered to decrease the depth of field (notice how clear the stars on the flag are here compared to how blurry they are in the cropped version).

http://www.pdnonline.com/pdn/photos/stylus/70684-faireysuit3.jpg

Uncayimmy

15th April 2010, 02:23 PM

A few more tidbits on this issue:

Earlier this year, it was disclosed in court that Fairey is under criminal investigation after he said he erred about which AP photo he used as a basis for "HOPE." He acknowledged that he had submitted false images and deleted other images to conceal his actions.

The judge also overruled the objections of Fairey's lawyers and ordered the disclosure of financial records related to Internet sales of the Obama poster. Hellerstein said the information was relevant to resolve issues of copyright infringement and damages.

The judge said excuses offered by the plaintiffs for not producing all aspects of their financial records were frivolous, and said they must be turned over within two weeks.
Full article: http://www.google.com/hostednews/ap/article/ALeqM5iZVL3PMK8Io57sbdH9hBHX_Nx5kwD9ET73HG0

http://www.bloomberg.com/apps/news?pid=20601088&sid=aEy1vGOyZLsM
Fairey previously made the allegation during the lawsuit and again in defense against AP’s amended court filings. It follows Fairey’s revelation in October that he faked evidence to mislead his lawyers and the judge in the case. The Los-Angeles based artist deleted computer evidence and created fake photo documents to cover his apparent mistake about which AP image inspired the poster, according to the filing.