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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."
...Obama checking out some 17 year old girl's ass?
These posts express my own personal views, not those of my employer
Photog? Litho? You can't be bothered to type those out?
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.
Is it just my observation, or are there way too many stupid people in the world?
,,, it would look like this:
http://i.dailymail.co.uk/i/pix/2008/08/09/article-0-0237E35600000578-961_468x541.jpg
If his initial attitude changed it must have done so a while ago. I heard the artist and the photographer interviewed by Terry Gross on NPR some months ago, and the latter was quite clear that he considered his photograph to have been stolen, and also made the claim then that he thought he owned the copyright, not the AP. He was a bit peeved, and frustrated by the general attitude that people thought they could do whatever they wanted with images that they happened to find on the internet (which was where this artist found the photograph). He described the difficult, creative work and considerable preparation that went in to making the photograph, and, naturally, did not agree with the artists' view that his transformation of it was creatively significant enough to support his claim of fair use. Originally, I was sympathetic with the artist, but after hearing the photographer's point of view, I'm torn.
Personally, I would prefer the headline "Obama Photographer Says AP and Fairey Are Both Wrong" for the same number of characters.
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.
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?
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.
Regarding this: "There's no way to square this with his original comments"
I do not believe Garcia is being inconsistent; I would probably have a similar reaction. I put almost all my photographs under the creative commons license, and I am very flattered when anyone considers my photographs good enough to use for anything. Still, I consider this part of the license absolutely essential: "you must attribute the work in the manner specified by the author or licensor". I took the energy to take and share my photograph with others, so I think the license I put it under should be respected.
Although I use a different license than Garcia, we both agree that putting something online should not be the equivalent of completely losing ownership/control of our art. Still, we are both flattered when people do want to use our art. These two beliefs are not mutually exclusive.
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.