Comments on: Fairey, Obama, and Fair Use

By: Mike Madison

Mike Madison — Thu, 03 Sep 2009 11:20:08 +0000

Andy Warhol was sued, repeatedly. Here is some background. I have read that he was also sued by Campbell's, though the suit was dropped. Today, the Warhol Foundation licenses the Campbell's Soup images.

By: Mike c

Mike c — Thu, 03 Sep 2009 09:43:02 +0000

What about Andy Worhol? He used hundreds of images that someone else took. He is considered n artist. I never heard ho anyone suing him.

Here are two examples out of Hundreds

http://www.art.com/products/p13720595-sa-i2731875/andy-warhol-reigning-queens-queen-elizabeth-ii-of-the-united-kingdom-c1985-light-outline.htm?sorig=cat&sorigid=0&dimvals=5000076&ui=90c1a95f363e4d6f9b5c09f7be96019a

http://www.art.com/products/p10398550-sa-i1221411/andy-warhol-two-golden-mona-lisas.htm?sorig=cat&sorigid=0&dimvals=5000076&ui=90c1a95f363e4d6f9b5c09f7be96019a

By: Randy Picker

Randy Picker — Wed, 11 Feb 2009 04:56:17 +0000

I think that my views are pretty close to Bruce’s. Key to emphasize what Fairey is doing when he uses Garcia’s photograph. I say more about this at http://uchicagolaw.typepad.com/faculty/2009/02/fairey-v-associated-press-yes-he-can.html

By: Lydia Loren

Lydia Loren — Fri, 06 Feb 2009 23:13:03 +0000

If copyright law is design to create an incentive for works that we fear will be under produced in the absence of a marketable right — does AP really need a copyright that extends to encompass what Fairey did to the photo? Remember is it AP’s right here, not the photographer. This was a staff photo, one that the photographer did not even recognize in seeing Fairey’s artwork.

Should AP have a right to demand permission be obtained for this use? If copyright law doesn’t given AP such a robust right, would that be such a bad result (whether through lack of meeting the “substantial similarity” test or fair use)?

Even without such a robust right I’d bet good money that AP would still hire photographers to take pictures of senators (the photo was from a Senate committee hearing) and those photographs would still get published.

By: Rick

Rick — Wed, 04 Feb 2009 15:17:58 +0000

SuperTouch has it wrong. Read the response to it below and see how very little Shepard Fairey and Jaime O’Shea know about copyright and fair use.

http://www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html

By: Bruce Boyden

Bruce Boyden — Mon, 26 Jan 2009 23:56:18 +0000

There’s three different issues here. One is whether photographs are copyrightable at all. I think almost everyone would say “yes.” A second question is whether *this* photo (and the other similar ones taken on the same occasion by different photographers) is copyrightable. Again, I believe most everyone aside from a few law professors would say yes. The third and most difficult question is whether the copyrightable elements in the photo have been infringed by the poster.

To figure out the answer to that, you have to do more than just hold the images side by side. That’s because there’s a lot about the photo that is not the creative work of the photographer and therefore not copyrightable — and copying that stuff is not infringement. E.g., Obama’s face. Drawing Obama’s face does not infringe on this photo.

Once you’ve figured out the creative bits that the photographer contributed to the photo, the next step is to figure out if *those bits* have been substantially copied by the poster. And I’m having trouble coming up with any that appear in both the photo and the poster, other than the choice to take (and use) that shot (along with dozens of others, I’m sure). I don’t think a single mere selection of that sort (”I choose the ten of hearts”) is enough to be substantially similar.

By: Peter Hirtle

Peter Hirtle — Sun, 25 Jan 2009 10:54:42 +0000

So Carolyn Wright writes “if Mannie Garcia’s photograph wasn’t an inspiring, creative work, then Fairey wouldn’t have used it.” Using that logic, everything that anyone wants to use must by definition be copyrighted. If you want to use it, there must be something creative and original in it.

What struck me is that the Wilde decision located photographic creativity in a whole series of decisions, none of which Garcia made. He didn’t pose Obama; he didn’t selecting and arranging “the costume, draperies, and other various accessories”; he didn’t set up the lights; and he didn’t suggest or evoke the desired expression, but only captured it.

I am sure that Garcia was well-compensated by AP for his skill and acumen in capturing the moment, but do we think that he also deserves the enduring protections of copyright (especially since Fairey removed all elements other than Obama’s expression)? What is the nature of the creative component in new photography?

By: Mike Madison

Mike Madison — Fri, 23 Jan 2009 20:21:01 +0000

Photographs may be copyrightable, but they aren’t copyrightable if they are not, in the language of copyright law, “original.” The same proposition applies to books, and films, and paintings, and computer software. Anyone is entitled to copy anything “creative” that is not “original,” no matter who produced it.

So, the proposition that photographers can support (or not) is why and how photographs might be original. (The originality in Garcia’s work is not evident to some people, even to many people.) Ranting about “theft” and “stealing” doesn’t advance that ball. Lawyers and scholars are pretty much immune to the rhetoric.

By: Eric

Eric — Fri, 23 Jan 2009 16:57:05 +0000

Any question that the work is not copyrightable is ridiculous. It has clearly been established that photographs are copyrightable. Anyone who argues otherwise is either being disingenuous, or not paying attention.

If you want to steal someone’s work, then go ahead and hope they don’t sue. But to use straw men (fair use, I changed it, photographers are not real artists) makes me want to ask, with all these straw men, aren’t you afraid they might gang up on you? Fairey might come to know the answer to that. It can’t happen too soon.

As a photographer, freeloaders have no right to my work without compensation. I might even give it away for free if I like the use. But you must ask me! It’s my choice, not yours.

By: Stupid Photographer

Stupid Photographer — Fri, 23 Jan 2009 15:23:54 +0000

Um, hate to bring up stupid news but Shepard Fairey is irrelevant. Manny Garcia is who ya’ll wanna to discuss:

http://pictureyear.blogspot.com/2009/01/mystery-solved-again.html

[WORDPRESS HASHCASH] The poster sent us ‘0 which is not a hashcash value.