Obama Photog Says "You're Both Wrong" To AP & Fairey

NewYorkCountryLawyer writes "In Fairey v. Associated Press, the Associated Press said artist Shepard Fairey's painting had infringed its copyrights in a photo of then-President Elect Barack Obama. Fairey said no, it was a 'fair use'. Now, the freelance photographer who actually took the AP photo — Manuel Garcia — has sought permission to intervene in the case, saying that both the AP and Fairey are wrong. Garcia's motion (PDF) protests that he, not AP, is the owner of the copyright in the photograph, and that he never relinquished it to AP. And he argues that Fairey is not entitled to a fair use defense. According to an article in TechDirt, this intervention motion by Mr. Garcia represents a changed attitude on his part, and that his initial reaction to Mr. Fairey's painting was admiration, and a desire for an autographed litho. Maybe Mr. Fairey should have given him that autographed litho."

Comments

I'm having a hard time seeing infringement

[Overzeetop]

So, lets say that this isn't Obama, since the personality and timeliness of the subject appear to be clouding the issue. I'm presuming that the timliness of an image, since the copyright lasts for over a century, isn't salient (someone will doubtless correct me if I'm wrong).

Let's say this is the picture of the Hellers Bakery. Let's say it's a photo of a street flower vendor, and someone takes an anonymous photo off the net and decides to base a work of art on it. It might look like this http://www.josephcraigenglish.com/SidewalkFlowers.jpg and the artist would be required to create the hundred-plus silk screens and choose the colors to create a particular mood. How about if it were more generic? Say, a photo of the Capitol, posterized down to 8 colors with a red-white-and-blue sky?

Having seen the photo and the print for the first time today (but having hear about it previously), I'm calling bullshit on the AP and Garcia. Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.

I fear that the court will rule in favor or either the AP or Garcia. If they do, it will be just one more proof that the system is broken, and is stifling rather than promoting and enabling.

Re:I'm having a hard time seeing infringement

[jdwilso2]

I think it's even more simple than that ... everyone's greedy and copyright law is completely broken.

the IP industry wants it both ways and only when it supports larger corporations rather than individuals ...

contrast this with the recent wikipedia issue of the UKs national portrait gallery claiming copyright on photos taken of portraits that are in the public domain

http://yro.slashdot.org/story/09/07/11/1239244/UKs-National-Portrait-Gallery-Threatens-To-Sue-Wikipedia-User

the real issue is that copyright law protects the entity with the largest legal budget.

Re:I'm having a hard time seeing infringement

[Overzeetop]

I don't necessarily disagree with the photo being copyrighted, and not redistributable. I just happen to believe that the work is transformative. Many key elements of the photo have been removed or altered beyond recognition or to the point of being wholly generic (collared shirt, tied tie, blank background turned into two contrasting colors). There is no way to tell from the poster where he is (inside? outside? etc...)

Does it/should it come down to "did he create it from scratch or use the photo as a template for his work?" As I understand copyright, it doesn't. If he had created this from seeing Obama in person, or from the photo in the paper, without the digital version as a starting point - would it still be copyright infringement?

Let me try a different direction: as a public figure, with the cameras "always on," and the number of poses that are common to a man who carefully considers his speeches and deliveries - is there any shot of him that _can't_ be found to match a realistic rendering of his bust in a "natural" or "common" stance from scratch? I suspect, though I can't prove, that amongst the thousands and thousands of hours of TV footage of the campaign and first 6 months of his presidency there is a shot of him at least once, if not multiple times, with a pose similar enough to the photo to use as a model for the poster. That, to me , makes the subject so generic as to be a fact, and not copyrightable. The exact digital file, however, is still copyrightable, as it puts him in a place, with particular fine, defining features of the time, and with a specific background, foreground, and the like - i.e., a photograph.

Re:I'm having a hard time seeing infringement

[drinkypoo]

The questions you are asking are all valid ones, which is why copyright law addresses the concept of a derivative work. You might disagree with the notion that a piece of media which is difficult to create is worth more than one that takes less effort. But if the image is recognizable even (as in your example) as one of one or two similar photos, then I think there is an argument to be made that the use is infringing.

Ultimately, if you don't want to secure the author's permission, you should do your own work. Copyright law says that material should eventually pass into the public domain so that we can all use it as we like, and unfortunately that time has been pushed back basically into infinity. That's not this guy's fault, though.

Ultimately, if you want to create a derivative work, go ahead. Nobody can or will stop you. If you want to distribute it, you should negotiate with the original author. If you're not willing to meet their terms, you should just piss off.

Fair use does not permit you to make something out of someone else's work and benefit from it. It permits certain uses for educational and critical purposes. You don't have to pay to excerpt a movie or television show if you're talking about it and it's necessary to your point. You don't have to consult the author before you excerpt parts of a book for the purpose of writing a review. But on a whim? That's not what fair use is for.

Re:I'm having a hard time seeing infringement

[rhizome]

Yes, the photograph is copyright, but the content - Obama looking up in a button down shirt and a tie - is so generic as to be reduced to almost "factual" information when translated into the poster.

All photographs are "factual" information.

Re:I'm having a hard time seeing infringement

[NewYorkCountryLawyer]

Ultimately, if you don't want to secure the author's permission, you should do your own work.

Sorry to disillusion you, but nihil sub solum novum. There is no such thing as "your own work"; all creators build upon what others have done.

Re:Photog?

[slarrg]

Personally, I would prefer the headline "Obama Photographer Says AP and Fairey Are Both Wrong" for the same number of characters.

Re:Photog?

[TinBromide]

Or drop the Obama since Garcia is not the official whitehouse photographer, which might be construed as the Obama Photographer because the whitehouse photographer mostly photographs the president in interesting places meeting interesting people.

Re:Photog?

[thePowerOfGrayskull]

Actually, then it'd be downright confusing -- photo says "You're both wrong"? Though "photographer" would have been much better than a made-up abbreviation. On the other hand, "photog" abbreviation has apparently been around since about 1906...

What are the chances...

[Overzeetop]

...you could find a frame in the thousands of hours of TV coverage of Obama that has his face in this approximate pose and orientation - enough from which to base the stylization of the bust, and crop out the background to the multi-colored sky and banner bottom? Would the existence of such a frame nullify this lawsuit, or create a second one allowing one of the TV networks to sue the artist as well?

Re:What are the chances...

[DRJlaw]

It would make virtually no difference, unless you could show Fairey copied from that frame instead of the photograph (meanwhile, sourcing from the photograph has generally been acknowledged).

Copyright does not require uniqueness or novelty. It requires originality, i.e., you created the portion of the content you are claiming rights to rather than copying it or registering someone else's work, and expressiveness, i.e., the portion of the content you are claiming rights to is an expression of an idea (aliens invading earth) rather than a bare fact, an abstract idea, or a conventional meme/plot. Ex: Two photographers standing right next to each other take essentially simultaneous and virtually identical photographs of Obama at a rally. Two separate copyrights, and neither work infringes the other.

Once you get beyond registration (which is required in order to file suit for copyright infringement), the primary bone of contention in a copyright infringement lawsuit for a "derivative work" is whether the author of the later work 1. had access to the earlier work and 2. appropriated substantial expressive elements of the earlier work. If there was no access, or even with access no appropriation from that work, there should be no copyright violation. Ex: Third photographer takes photograph that is coincidentially similar to first two at later portion of rally. Third separate copyright, no infringement. Ex: Third photographer poses Obama look-alike in rally-like staging to create a third photograph like one of the first two (the only one they've seen). Probable copyright infringement of only one copyright.

The only advantage to there being another source, if in fact it was the other source, is to say "No, I didn't take it from you, I took it from them, and it was public domain/licensed/none-of-your-business-because-it-wasn't-yours. And then prove it. The public domain, of course, might be that other source. But don't expect the copyright owner to take someone's word for it unless they're a reasonably trustworthy someone.

Re:Does the AP have a leg to stand on?

[tweak13]

From what I understand, their claim is pretty much completely dependent on the wording of the contract they had with the photographer. If the AP has a signed contract saying that they own the copyright of all the pictures he took for them, then their claim is valid. If they only have a contract that says they get unlimited reproduction rights (my understanding is that a typical contract is more like that), then they don't own the copyright. Until details of the contract are presented, nobody can know anything more about their case.

Re:Copyright is out of control

[e9th]

Nearly every photograph Ansel Adams ever took was of a "publicly owned object." Do you really think his photographs are not original work deserving of copyright?

Re:Attitude not changed too recently

[cpt kangarooski]

Wait, are you saying that Andy Warhol wasn't commercial and self-serving?

What was Garcia's contract with AP?

[nbauman]

In order for AP to use Manuel Garcia's photos, Garcia had to give them a written license or contract stating the rights he was giving them (first use, non-exclusive rights, all rights, domestic rights, international rights, etc.).

What was the contract that Garcia signed with AP? If he didn't sign anything, then AP wouldn't have any rights to use his work at all. If he signed over all his rights, AP owns the work. If he signed over certain rights to use them in newspapers and magazines, but kept all other rights for himself, then he owns the rights. Depending on the contract he used, he might have kept the right to make derivative merchandise.

Garcia's legal papers don't mention anything about the contract he signed with AP.

Are there any photographers out there? What are the provisions in the usual contract you sign with an agency like AP? Do you sell all rights? What rights do you keep?

Re:Copyright is out of control

[RealGrouchy]

If I design a can label for a soup company, do I own the label, or does the company?

If someone takes a photo of the can with 'my' label on it, who owns the copyright to the photo?

If someone paints a pop-art version of that photo, who owns the rights to it?

If someone takes a photograph of that painting, who owns the rights to it?

The only winner is the copyright lawyers for all these people.

- RG>

Re:Photog?

[Khyber]

The Internet, of course. Maybe you've heard of Vimeo, or Youtube? Plenty of pictures with voices, hell some are just still pictures with music playing!

Re:Attitude not changed too recently

[Joe Decker]

Don't throw out accusations of tracing without even taking the short time needed to test your theory.

Looks like more or less a tracing to me, as per the rollover image at the bottom of this post.
http://blog.ideeinc.com/2009/01/23/will-the-real-obama-hope-photograph-stand-up/ And I don't see what you're talking about with respect to the ear symmetry.

*shrug* Be more interesting with bigger versions of the images, I have no beef with you if you disagree--just think that actually providing the data is interesting.

--Joe

Hope for copyright reform?

[Qrlx]

I think the photographer is due something. But by the time the courts have figured out exactly what that is, the lawyers will have used up all the money.

Arbitration seems like a worthy alternative to the courts.

Since it's a famous picture of him, maybe the President could spend a few hours looking over those law books and sorting out some of this Intellectual Property mess we find ourselves in. Look at it another way, if Barack Obama can somehow be personally dragged into this vortex the way John Q. Downloader has been, maybe there finally will finally be some... Change. :)

Re:Afro-American Racism Against Whites and Asians

[Profane MuthaFucka]

I love it when conservatives talk about race. It's so ... racist. And the large numbers of overt racist Republicans is doing a great deal to help both Democrats and liberals.

Keep on going.

Re:Photog?

[Saint Fnordius]

Actually, it is highly relevant for many of us web geeks, due to the tangled mess that copyright and inspiration versus derivative works is. In an indirect way, this could influence things like source code, where a company sues a smaller company for copyright infringement, and then the coder who wrote the code in the first place steps in, claiming that the supposed copyright holder only licensed the code from him and didn't get full copy rights.

I personally think this case ought to go to Mr. Fairey, since his painting could have used any of a number of photographs as a reference and the work in making the painting was his. His mistake was giving the photographer credit, and then the AP thought it deserved a piece of the profits since they were the distributors.

Re:If it were Bush ...

[Anonymous Coward]

I'm pretty sure that Bush is a great guy. Just a terrible president. Like my frat-boy friends. I love them, but definitely do not want them running the nation.

Re:Afro-American Racism Against Whites and Asians

[Anonymous Coward]

We really did ourselves in with this election I'm afraid.

With this election!? You americans are some severely diluted people. For the past 8 years your ex president helped your nation gain one of the worst reputations in the world, and you honestly think that now you've fucked up? The next time a european (or a piece of "eurotrash" as you so elaborately call us) flips you the finger for just being american, please don't be surprised. It only makes you look even more embarassing since it merely proves your cluelessness of just what the fuck the world thinks.