Fairey...and Garcia...vs. the AP?

There's a common phrase that goes "let the lawyers sort it all out," but even though that legal sorting phase normally makes my eyes glaze over, I have to admit that the latest twists and turns in the Shepard Fairey Obama "HOPE" poster case are particularly delightful. Here's the unofficial abstract:

• The poster itself achieved iconic status through an organic popularity, but the Obama campaign declined to use it officially because of copyright concerns—namely, that the photographer who took the original image wasn't identified and thus had never given his permission.

• After much sleuthing, people finally figured out who took the photo that had been used for the poster. The photographer himself hadn't known, and was pleased to find out. There had been several almost-identical pictures discovered first, which were then discarded as possibles because of subtle differences. The value of the orginal work is admittedly minor, so any claim that the derivative work devalued the original is moot.

• The Associated Press discovered that the photographer had been working as a stringer for them when he took the picture, so it staked its claim to the rights and declared its interest in some of the profits the poster had earned (whether fishing for a settlement or standing up for creators' rights being a matter of interpretation). The photographer didn't remember signing a work-for-hire agreement, so he disputed the AP's claims to his work.

• Meanwhile, the artist was arrested, in a sort of publicity stunt by the police, on the way to an opening of his work. This isn't unusual or significant in itself, as guerrilla tagging is part of the artist's usual M.O. and he's been arrested and jailed for the same thing many times before, but it makes the news all over the world. The interesting question, which I haven't seen answered yet, is whether he was arrested for new or past acts. That is, did the police belatedly figure out who'd been putting up all those damned "Obey" posters around town because of the publicity surrounding the Obama poster, its artist, and his opening? If that was it, does that make the timing of the arrest essentially a political act?

• To the AP's surprise, Fairey's now gone to court to have his work peremptorily declared Fair Use (see link), so the AP can't pursue any further legal options. Meanwhile, the photographer continues to dispute the AP's claim to his work, and continues to profess himself pleased that Fairey used his photograph as the take-off point for the poster.

Whew. They might not write case law about this one, but it would make a hell of a New Yorker article.

Mike

UPDATE from Marco: "An interesting perspective on the possible local politics behind the arrest can be found here."

Comments

[John]

"The value of the orginal work is admittedly minor, so any claim that the derivative work devalued the original is moot."

This statement bothers me. It seems to me that the value of the original should be measured by what can be derived from it.

[Cyril]

Wait until Errol Morris gets his hands on that one. Then the entire Lord of the Ring trilogy will feel like a short story.

[Chris Bertram]

It seems to me that the value of the original should be measured by what can be derived from it.

That would be an interesting and exciting principle! So if I take some hitherto worthless stuff (some mud from the ground, let's say) and then create something of great beauty and value, the value of my creation should retroactively boost the value of mud.... I don't think so!

[Chris Gibbs - Alaska]

Haven't we heard all this before reference the Che Guevara image?

[Colin Work]

"It seems to me that the value of the original should be measured by what can be derived from it."

It's a tricky one. If someone is seeking damages from loss of earnings due to copyright infringement, then yes, the value (earning power) of the original is significant.

But I don't think the value of the original can include any "added value" someone else may have applied.

Nonetheless, I would think that a derivative work must owe something to the original artist with regards to proceeds from the new work. After all, in this case there were thousands of possible pictures to choose from - clearly the artist felt this picture was special in some way.

The analogy to mud is not quite right, as this would a) be mud which is different from all other mud and b) (leaving the question of God out of it) the mud would have had to be someone's work.

An image does not need to be of particular quality to have value - think of any number of big earning news photos which were simply a matter of right place/right time.

Instead of ending up on a front page, this picture was somehow special enough to form the basis of a poster, and for that the photographer should be entitled to some share in the profits.

[David Dyer-Bennet]

This is NOT mud which is different from all other mud; as shown by the fact that there were several previous photos by different photographers that were thought to be the source. In fact, any one of them could have been, plus thousands of other photos.

[David A.]

Did Andy Warhol pay Campbell's for the likeness of their soup can?

[hugh crawford]

I think that the point of picking that picture was that it was *not* special , a quotidian image if you will.

[Mark S.]

Below is another take on the arrest of Shepard Fairey from the Boston Globe. Not much difference between a fine artist and a graffiti artist these days.

http://www.boston.com/news/local/massachusetts/articles/2009/02/10/cultural_acclaim_residents_anger/

[Colin Work]

"I think that the point of picking that picture was that it was *not* special , a quotidian image if you will."

Which kind of makes it special to the artist, no?

Bottom line though, according to the Copyright Registration for Derivative Works (which clearly applies in this case)

"Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work."

Re - Warhol ... probably impacts on both trademark as well as copyright, however there is evidence that Warhol did have some sort of agreement with Campbells. Note also that his iconic Marilyn Monroe image (which may be more to the point) was based on a photo purchased for the purpose.

The problem with the Obama image is that there was no clear agreement at the outset. Had the photographer been asked for the use of the image in the first place, all would be clear cut. Ideally, the photo should have been sold (or given) to the artist based on what the photographer thought it was worth. Any added value would then clearly be the artist's.

As it is, the existing uncertainty over ownership and rights is an open invitation to the legal profession. I guess there is a lesson in that.

Back to the mud - it occurred to me last night that if someone were to find a new process of value based on mud, then yes, the value of all mud would increase - look what happened to oil!

Cheers,

Colin

[John]

Mud was not created by a person, it's been here since dirt.

The problem I have with this is the argument that seems to say "it's OK if I steal/hijack someone elses work if I can make something "better" from it."

If I have three acres growing weeds, and you steal it to grow a garden, does that justify the theft?

[David A.]

You see, John, this is where the whole analogy thing breaks down completely in the modern world. Nobody took any of your imaginary three acres; nobody cared about them.

Think of it this way: You have three acres and don't want to plant anything. Weeds are going to grow there, so you decide to grow them in an interesting pattern. I come by and see your pattern and see an idea in it. I use the baseline of your pattern and my ideas about it to create my own weed garden design -- and then I sell it to people as the "new, low maintenance, backyard weed garden. The modern way to garden!" You then get all upset that I saw what you did and then "copied" you and made money, so you start suing left, right, and center to get a "share" of the profits. Does that sound like a good thing to you? Copyright problem?

People are discussing this image like it was something very special. It was NOT. It simply gave the artist a pictorial view of Obama's face that he could then use to make his own work (ie, not a photograph!). He *could* have done the same thing himself, *if* he could get within 10 feet of Obama. He could not get that close. Just like Half Dome is a place a foreign artist may never visit, but may see in a photograph and then depict in a painting; Obama's face, at a particular angle, is not copyrighted.

This probably precisely why the original photographer is going out of his way to make sure there is no copyright case that could possibly be pursued against this artist.