Shepard Fairey has launched a first strike in the battle over the “fair use” of Mannie Garcia’s 2006 photograph of Barack Obama. Fairey has sued the Associated Press seeking a declaration that the fair use doctrine gives him the right to use Garcia’s photo as the basis for his poster. To refresh your recollection, here are the two items side by side.
We’ve already had quite an interesting go-round on this issue in this thread — see the comments in that thread for some details and images from relevant “fair use” precedent.
Just for kicks, though, I thought I’d try my hand at this. The following took about 5 minutes, applying the out-of-the-box tools available in iPhoto to Garcia’s photograph. Someone skilled in Photoshop or another sophisticated graphics program could do a lot better in, say, an hour. IMHO, Garcia’s photo — the angle, the expression he captured, the out-of-focus flag in the background — is really good, and doesn’t require much “transformation” to get to an “iconic” image. (Though perhaps more than my poor skills are capable of!) I’m leaning toward Garcia in this battle.
to replicate art than to create it.
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p>Andy Warhol painted a can of soup. He didn’t design the can or the label. He just painted it. That design, like all as soon as they’re put on a physical medium — was copyrighted by Campbell’s. Andy merely painted it.
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p>That doesn’t mean it wasn’t art.
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p>I could learn to paint really well, and also paint a can of tomato soup. It doesn’t make me any more than a hack though, because creating art and copying it are different.
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p>Now, in fairness, you’re arguing that Garcia created the art and Fairey copied. I don’t see it that way. I think Fairey did far more than copy, and it’s not because creating his work would require many many hours to do or lots of training — his use of color, stroke, etc. are all relevant to the piece, and yes, him doing it before you matter too.
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p>So, maybe it passes the fair use test, maybe not… but your ability to quickly make a semi-facsimile of Fairey’s work doesn’t seem particularly relevant test.
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p>P.S. Fairey just got put in jail according to today’s Metro IIRC.
That, of course, is the point.
He “remixed” the work, as Lawrence Lessig might say.
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p>I think it’s important to remember that copyright is ultimately a pragmatic legal concept. In certain contexts, copying is clearly wrong (e.g. on exams where the purpose is to evaluate one’s abilities). But if copying per se is wrong, we’re all in a heap of trouble, because our computers are basically copying machines with some logic added on. To view a website, I must first copy (gasp!) that information to my computer. Just think of all the copyrighted objects that I have copied!
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p>But I digress. The point is that the rightness of copying is determined by what we as a society say it is. One can make an argument that society is best served by very strict copyright laws, so that creators have maximum incentive to create. Disney would take this view, which is of course more than a little ironic because old Walt borrowed liberally- do you think he came up with the original story of Snow White and the Seven Dwarves? In a strong copyright world, the movie Snow White would probably have never been made because the Brothers Grimm Trust would have demanded licensing fes that Walt couldn’t have afforded.
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p>An alternative argument is that society is better served by a more liberal concept of fair use. This argument has pragmatic support in the modern world, where some of the old concepts of copyright become simply absurd with all these machines capable of creating perfect digital copies. I’d offer Digital Rights Management (DRM) as an example, and I’d argue that it was almost inevitable that the iTunes Store would give up on DRM. That’s because, among other things, DRM is really bad at preventing piracy and really good at annoying honest, legitimate customers.
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p>But back to Fairey. The original picture was taken by Mannie Garcia, and soon faded into obscurity. Now, Garcia claims that he, not the AP, holds the copyright for the photo. Here’s a thought: Was, in this instance, Garcia harmed by Fairey’s unauthorized adaptation of his photo? I’d argue quite the contrary; I assure you that few of us would have otherwise seen the photo or heard of Mannie Garcia. As he put it:
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p>In sum: In my opinion, Fairey adapted the photo in a manner consistent with a reasonable interpretation of fair use. An both he and the original creator benefited from his act.
the picture had been available since 2006 without any attention at all. If you saw the picture you probably wouldn’t have thought twice about it. It became an iconic picture with Shepard Fairey work. There is a difference.
No love for “Fairey use”? What does a guy have to do?
He clearly needs a good legal team to Shepard him through this troubles. Wocka wocka.
we can all do better than that. Ba dum bum.
without the margin-busting giant photo.
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After I hit post, I rued. Oh, how I rued.
The nature of art is not in the technical skill required to produce it, but in the choices made in how to use that skill, and the vision, message, or aesthetics that results. The fact that you can somewhat undo the transformation once you have both the beginning point and endpoint and know exactly what it was, doesn’t say much of importance here, IMO.
… it as art, I’d agree. For purposes of evaluating it for copyright, it’s probably the case that very different considerations would need to be evaluated than the artistic process that ensued.
Whether or not Fairey’s work is “art,” “good art,” “bad art,” or “not art,” isn’t really the point. The question is whether he made “fair use” of a copyrighted photograph. Art doesn’t have much to say about that.
This is a pointless distinction you’re making. See below.
I think you and David are both making an artificial distinction that is not logically relevant. In this case, the “art” in question was the transformation. At issue is whether that transformation was meaningful enough to consider this a protected work. In that context, showing that someone else can easily make the same transformation now that they have both endpoints tells us nothing of value about the substance of the issue. The meaningful value of the transformation does not depend solely on the technical skill necessary to do it.
… that’s why merely describing that an artistic process took place isn’t sufficient. Transformation?… yes. ‘meaningful enough’… you really want lawyers to use ‘meaning’ as a criterion? Point taken that the ability to replicate the process isn’t informative. I’d imagine, however, if a transformative process could be described as trivial, that would probably be salient. If you just take out your notion of ‘meaning’ from the argument and substitue ‘transformative’ then I think lawyers could get their legal heads around it. That is,… not ‘meaningful enough’ but ‘transformative enough’. And if I’m right, then the exact extent to which the original work was transformed is relevant. The fact that the transformation can be described as an artistic process complete with whatever you want to subscribe as ‘meaning’, isn’t actually that relevant,… unless you want to legally define art and meaning.
Mr. L is right. The law can’t, and shouldn’t, assess whether a work of art is “meaningful.” Someone can use someone else’s copyrighted work to make a complete piece of crap with no artistic merit whatsoever, and it can still be “fair use.” Conversely, it seems to me perfectly consistent for a piece of “art” that has “meaning” to nonetheless contain use of copyrighted material that, absent a license or permission, is not “fair use.” The two concepts do not, and should not, predictably align.
http://blogs.phillynews.com/in…
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p>http://blogs.phillynews.com/in…
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p>These are links to the actual source image. If you compare the original image and the transformation, you can see a that the hope poster is a transformative use of a part of the photo.
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p>Whether that’s fair use or not will be decided by the courts.
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p>If all you show for comparison is your own (or someone else’s) selective crop of the original photo, then say that.
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p>There are many arguments, but there’s only one set of facts.
Others, apparently, have — your link to the photo including Clooney is the first time I’ve seen that. Interesting.
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p>Again, though, asserting that the poster is a “transformative use” of the photo assumes the answer to the question.
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p>This post has a lot more interesting info on the nature of “transformation,” photoshopping, etc. Thanks for the links.
After seeing the original and reading those posts, it’s clear to me that whatever you think of Fairey, he clearly recontextualized and altered the photograph enough so that even the original photographer did not recognize his own work.
No, it being a transformative use does not mean it’s a fair use. But there’s no question that it’s a transformative use, unless you’re prepared to argue that the Hope poster is not transformed and then used in a completely different way from the original photo of Obama speaking at a panel with George Clooney.
Does it matter if you freehand while using the photo for a mere visual reference, versus trace the actual photo (likely using computer help, or at least a WACOM) and then freehand the details, versus thirdly, snipping out, say, the head using photoshop’s selection tools and then use the color, posterization, or whatever else filters in Photoshop to transform the part of the image you’ve selected?
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p>To me, the second two are more “derivative” than the first. I’ve always thought it was a no-no to trace someone else’s copyrighted photo or take some or all of that actual photo and transmute it, without permission, but as an artist who sometimes needs photo references for art pieces the first one seems like it should be permissible (I mean, what are you going to demand, that an artist happen to have the access to take their own photo of a subject like Obama or find a source willing to give him permission before creating an original art work??)
This is all reasonably cutting-edge stuff in the “fair use” world. I don’t think, however, that Fairey free-handed the Obama image.
and I can’t post the image but I used an image utility to overlay the art over the photo and they do not match up exactly. Might have been freehand copy.
in this link — some other folks tried similar tricks to determine which photo Fairey actually used.