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Tuesday, 20 January 2009


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Whoa! "Derivative works" do not automatically fall under "fair use". In fact so far as I know those two concepts are completely independent.

(IANAL, however.)

Wow, the whole Obama print media campaign is based on a stolen image.

Between Richard Prince and this news I think we can all agree that the law is broken with regard to intellectual property rights/digital image copyrights in the USA. Derivative work my ass, this won't be front page news because it's so embarrassing, watch the mainstream media suppress this info.

I believe in logic that's called "argument from a false premise"--not only do we not "all agree that the law is broken," but even the author of the exposé doesn't think it was. How do you get from there to everybody agreeing?

Mike J.

Fair use aside, it appears to me that in these 2 images Obama's head and his gaze are aimed in slightly different directions. Perhaps consecutive shots from a motorized burst, but they don't look like the same frame to me.

It being a derivative work doesn't necessarily make it fair use, but the transformative nature of the reuse makes it more likely to be fair use.

The artwork is not identical to the source photo, not at all; in fact, the entire face has been tilted down slightly, the hairline does not match at all, the ears, nose and eyes are quite different in shape.

Given these differences, this is not a question of a copy; it is, rather, using someone else's photo for reference while making an independent artwork. It's quite likely that a number of reference photographs were used, but that the artist liked a head pose somewhat like Young's shot.

It might be the case that it would have been ethically cleaner for Fairey to credit the photographers of his reference images, but he's certainly not legally required to and he's operating here as an artist, not a journalist, so journalistic ethics don't apply.

Given that anyone who took a photo of Obama's head at about that angle would get a similar image, I don't think it can be even proved absolutely that Young's photo is the definitive source. There's nothing there, really, that's a definitive signature of the photographer. Obama's appearance cannot be a copyrightable element, since the photographer didn't influence any of it.

Follow the link in the "Daily Beast" article, http://www.art-for-a-change.com/Obey/index.htm and you'll find that this appears to be Fairey's Modus Operandi. It is most certainly not an isolated case.

While he may have donated all proceeds from the image to the Obama campaign that doesn't mean he hasn't profited enormously from the picture. Everything else he does will rise in monetary value because of the connection to this image.

As with many people in Art and Music who "appropriate" or "sample" there is a reluctance to credit those whose works you have used to create your own. Yet when someone does the same to them the squealing really starts.

GKFroehlich, you're on to something. Overlay the images in Photoshop. The two images are similar, but not identical.

What the artist (allegedly) did, create a derivative work, and what the publisher did, use the derivative work for promotional purposes, are two different issues and should be analyzed separately.

I initially found James Danziger's piece in The Daily Beast today and thought he HAD found the source. Then I dug further and found another possible source in the comments of this blog:


The comments point to this blog post from 2006:


I have to agree with the comment that this image looks like a better match. No photo credit, tho.

(Thanks for your great website!)

Peter Barber

What about that image:

Dear folks,

Danziger has it 100% backwards! Derivative works are absolutely, positively NOT "fair use." The rights to derivative works are explicitly protected and assigned to the copyright holder (default: creator) under copyright law. This has been upheld in numerous court cases, many of them high profile. This is a slam dunk. I am astonished that someone could still get it wrong after all these years. Especially in print.

Which does not mean that this particular use is not "fair use" for all the other reasons people are discussing. I'm not even going to try to go there. But the derivative part? Completely the reverse of well-established law.

By the way, I had the same reaction that Froelich did; the first moment I looked at those illustrations, I said to myself, "Wait a minute, it's not the same picture." There are way too many differences, even to the angle of lighting. The artist MIGHT have changed that stuff, but it seems more likely it was one of many other similar photos that the work is derived from.

Which, as others have suggested, moves photographs of that ilk into the category of being sufficiently 'generic' that they may not be protected against unauthorized derivation.

~ pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 

Holy Cow! Mike, did you forward "Other MJ's" message to the author of the article? Maybe he can track it down. I notice that he never did seem to get confirmation from Fairey that he got the right source image. (Or at least, he didn't print that he did.)


Actually, arguing from a false premise is what I have to do these days... I have to convince people my photos are worth money. Google image search and flickr should have replaced me long ago, and of course I am wrong about the law... but as a photographer, I feel moved to say what I said.

In other news: nothing looks more like a picture of Obama than another picture of Obama.

(Replace "Obama" with your favourite person/place if needed)

Terry Gross interviewed Shepard Fairey today (January 20, 2009) on NPR's Fresh Air.


His original poster used an uncredited photograph and was intended to be used as street art. It caught on via the internet and eventually the Obama campaign approached him to create official posters with photographs that could be legally used.

He says that he has not yet found who the photographer is of the photograph that he used for the original poster.

- yischon

Plagiarism at its best!...you'd lose your job in a second if you did this on the word side...but since it's an "artist"... they are allowed to do as they please...Thanks for "exposure" of frauds of original thinking...give credit/cash to those due it....

So far it doesn't look like anyone has mentioned "Spreading The Hope: Street Artist Shepard Fairey" at
http://tinyurl.com/9w849q , also known as "Fresh Air from WHYY".

I caught only the tail of it, but anyone interested can hear from one of the artists involved in his own voice.

-- Dave

OK, I've got to backtrack a bit. I've dissed Danziger unfairly, because I did the classic dumb thing--relied on someone else' report of what he said instead of reading it for myself. I've now read it, and the commentary featured at the top of the page:

"... that the Fairey rendering is technically a "derivative work" and Fairey's use of the photo therefore falls under Fair Use..."

is NOT what Danzinger said.

He said that this is a derivative work (correct). He said that because of the profound transformations done, it *may* be protected under fair use (also correct). At no point did he say that being a derivative work is what makes it fair use (which is false).

Mea culpa and apologies to Danziger.

pax / Ctein

I just saw this work as the cover of Esquire Magazine. I wonder if anybody got paid for that?

All I found was thats its an AP credited photo. If someone has an AP login then perhaps it says in there who shot it?

Not only did Fresh Air cover the background of the Obama campaign's use of Shepard Fairey's work, but another link on the same date's T.O.P. offers additional information direct from Mr Fairey on the immediate dangers of being a street artist:

From the link to "The Longest Photograph in the World," under "Projects," follow the link to "Blue Lights & Hash Browns." Shepard Fairey is the first of the six street artists quoted.

(Here he has been arrested only nine times. By the time of the Terry Gross interview, the number had risen to fourteen.)

Serendipity, Mike!

I don't understand all the commotion that much. Say there would have been two photographers standing right next to each other and snapping this image at the same time, would there have been a copyright problem? The images would have been the same. I think there are way too many people with too much time to think about this :). If the original photographer would have made the same graphic interpretation it would be a different case to me, but I doubt (s)he could even make a start at that. OTOH I also believe the artist can provide us with his sources and it does not like he is not willing to do that, providing he even knows who made the image!

As for finding the creator of the "original" photograph, I see two possibilities:
1 - They'll never find him/her
2 - They'll find more "creators" than they can handle!

Seriously, people -- there must have been dozens of shots taken of Obama during the past year that were sufficiently similar to have served as the inspiration for Fairey’s poster.

Perhaps we should have a contest to see how many we can find (remember, for a graphic work like this it is easily possible to start with a full body photo and crop).

I don't understand what the big deal is. THOUSANDS of pictures have been taken of this man that are invariably going to look alike. This whole debate is just a nitpicker's folly.
Try focusing your energies on people who are stealing truly unique images and concepts.

Well, that's kind of the point, a big fat "if". The fact of the matter is that the "artist" didn't find himself standing in the spot that the photographer managed to get him or herself into.

That fact alone makes this piece worthy of its copyright. In addition to deciding where to stand, the lens choice, nice bokeh, right? Or how about the actual moment? That's another choice made completely by the photographer when the image was made. The edit. well, we don't know what the frames before or after looked like, but again, a choice.

All of these choices (and more) were made by the unknown photographer (not to mention the costs incurred (to her or her employer, also let's not forget that this image could have been made by a freelancer working on spec) and not by the so-called "artist".

Note: The issue of exclusivity only applies to the value the marketplace assigns an image. It doesn't have anything to do with the validity of the copyright. So, all of these choices should have made the image quite valuable to both the artist and the campaign.

Basically except for what, twenty minutes in Photoshop with a stolen image, everything about this piece was completely built on the work, expenses, and talent of someone who has received absolutely no compensation what-so-ever (as far as we know).

Yes, I know the "artist" made a lot of choices too, but everyone of those choices were based on choices the photographer already made. I wouldn't have any problem with any of this, but it really appears that the image was stolen. I hope not, but again we don't know.

Maybe someone else can link to the Photoshop tutorials on creating this effect that are now floating around the internet.

If you stole a car and repainted it, they still call it stealing.

It would be interesting to know how much the campaign paid the artist to do this poster and if they also paid for the licensing of the photo. That's all publicly available on the internet btw.

Really, Danziger should know all of this. I don't understand his defense of this work. I'm guessing if this same situation came up with an image made by Paul Fusco on RFK's funeral train he'd have a different opinion.

Talk about an "appropriated" image or "derivative" work that never made its original creator a dime...


here's the "real" scoop with proper credit, as far as i can tell:


Check the long story and photos on this on Reuters -seems they've gone to the source.

The artist in this case is a subversive who mainly does protest art (although he also did the cover for the Black Eyed Peas' "Elephunk" album). He wasn't commissioned by the Obama campaign, which didn't officially adopt his artwork specifically because of the copyright problems with the original photograph (although he did do other artwork for the campaign from photographs that could be released). This doesn't really reflect on your main point, just corrects a few mistaken assumptions.

The photographer of the original source photograph was Mannie Garcia, a Washington freelancer. I've put up a follow-up note on the site.

Mike J.

One should separate the legal and ethical aspects. Photographers shouldn't have too much self-pity: copyright protection for photography is usually relatively straightforward (even if sometimes difficult to enforce).

Ask a typeface (font) designer what copyright protection gives them: almost none (the outlines, i.e., basically the files, themselves are protected; the name of a typeface is protected by trademark law; the appearance, not at all). One can slave away for a couple of years to design a typeface, and have the design ripped off a week after it's released (and it's all legal -- even if the ripping off is done using an autotracer applied to a bitmap).

Similarly, one can redraw/repaint (by hand; heck you can probably even trace) what is essentially a duplicate of a drawing/painting. I believe that's legal as well. For photographers: take someone else's photograph (say, a still-life) that you admire, set things up in a studio or wherever, take an essentially identical photograph (and if it's not, off to Photoshop!). Again, legal as far as I know.

Ethically, on the other hand....

Dear T.,

I truly sympathize with typeface designers! They have it even worse than musicians these days.

Back to the issue of plagiarism. Your last paragraph, I'm afraid, is exactly contrary to law. Derivative works explicitly include renderings in other media or with other instrumentalities. It doesn't matter if you convert a photograph to a line drawing,or whether you do it by hand or with a computer. It's still a derivative work, and the original copyright holder still owns the rights to publish those.

Mind you, you can do anything you want in the privacy of your own home, where it won't scare the horses. You only run into trouble the moment you decide to "publish" -- basically that means show it to anyone else in any form whatsoever.

Both of the examples you give in that last paragraph, in fact, have been the basis of major court cases and in both cases the plagiarists suffered a definitive loss. The first involved a T-shirt company that was ripping off someone else's photographs and converting them into graphic designs for their T-shirts. The second involved in advertising agency that took the key elements of an existing photograph (a rocking chair on a porch with a porch events with the sunlight slanting through it) and hired someone to incorporate them into a similar (not identical) photograph for them.

Plagiarism, like murder, requires motive, means, and opportunity. One of the key things you must do to prove plagiarism is to show that the defendant had access to your work. (In the case of the ad agency, it was established that they had looked at the original photographer's work and basically decided not to use him but to take his idea and use their own person to re-create it).

If you, by chance, create a work that is identical to someone else's without having any familiarity with theirs (and this does happen) you are not guilty of plagiarism.

~ pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 

interesting enough, super touch has posted a response to all this obey plagarism:

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