Ah jeez, is the Hope poster guy about to be sued?

[Jackeens]

NEW YORK — On buttons, posters and Web sites, the image was everywhere during last year's presidential campaign: A pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE.

Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.

The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement.

"AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."

"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for and how the original is affected by the new work.

http://www.huffingtonpost.com/2009/02/04/ap-accuses-shepard-fairey_n_164045.html

[tekisui]

1. This is so stupid. The AP is just sinking lower and lower.

[sohndrsmith]

9. You're right. It was stupid not to ensure he received permission

to use someone else's work for commercial purposes/profit, or done his research to make absolutely sure it was not protected and subject to infringement penalties.

Artists (photographers, musicians) take this VERY seriously.

As a painter, I regularly use photographs for reference, and I always ensure I know the rights and restrictions before I paint one stroke - especially if I plan to sell my finished painting (which is sort of the point for me).

You can't just copy great photographs from news sources and profit from them. It shouldn't be that difficult to understand why there are legal protections for such things. It's called intellectual property law and it's taken seriously.

I respect every photographer's work that I reference... I have no right to just take it and make money from it. Nobody does.

If Fairey deals with this head on and makes a legal statement saying he will no longer use or profit from the image - and even transfers any profits to the owner of the original image, my guess is that will be all that happens. If he tries to fight it, then that could get ugly. And if he did that, I would not want him to win.

If he hasn't made any profits or donated the profits to something, then he should stop using the image - period. He'd still be in the wrong.

It's not a small thing.

[jacksonian]

14. but, to make a point

how is the original photograph in any way damaged by this? Is the marketability of the AP picture lessened, or actually enhanced?

Stupid suit.

[sohndrsmith]

28. My thinking * used * to be more along the lines of yours... but

after learning a lot more about the entire issue - from both sides of the argument - I changed my mind.

It's not stupid, it really isn't (unless, of course, there are aspects about the whole thing we don't know - which is probable).

Whether or not marketability is lessened or not, is really not relevant (it is, but I'm trying to hone this down). The fact is, and what is extraordinarily relevant - is that Fairey did not have the right to make that determination. Those who own it - DO. And he is wrong to take something he didn't have a right to take. Whether there is subsequent harm or not doesn't matter, although it's worse if harm does result, obviously.

Doing something wrong is not predicated on whether or not someone or something is harmed as a result, and in the absence of that "harm" - it's considered right. That just isn't really how it generally works. I think absence of harm alters severity of consequences, absolutely. But the wrong thing is still wrong... and Fairey is wrong here. What if a young photography student took the picture instead... and people just took his image as they wished without paying him or paying for rights usage, which would impact him enormously and at a great loss. You still think no harm, no foul?

The thing is - it doesn't matter. Rights are rights whether you're rich, poor, good, bad, whatever. AP deserves the rights as proscribed by law just like everyone else.
I don't think Fairey is going to be penalized in any serious way if he does the right thing, and I'm sure that's what he's going to do.

Read up on Intellectual Property law - it IS serious, and it IS a big deal. Artists with integrity respect the work of others as they expect others to respect theirs. Whether they're successful, a corporation, homeless or deranged - the rules apply to everyone: they're there to protect you or penalize you if you break them. You don't get to just say "doesn't matter" on a whim...

[jacksonian]

29. well, you have rights, but any renumeration you get for those rights

has to involve damage of some sort. You don't sue for the right to punish, you sue to make whole what was taken away. And I don't see the harm here, at all.

But complicating your argument is the fact the inmage itself is rather generic, that is, the subject is Obama's face (which does not belong to AP) and the elements that make it AP's own artistry are rather hard to distinguish.

This is what I have realized, the bigger danger is the slapping of brands on the otherwise generic. AP took a head shot, the poster made it not just a head shot, making a generic image a specific event. Credit the art - AP is trying to get a check for what they didn't think of themselves.

[sohndrsmith]

32. I'm not an IP lawyer, but I'm afraid I can't agree with you... : ) Here are the terms -

whether you minimize an image as "just a head shot" is a matter of opinion, which is quite arguable. But opinion isn't equivalent to copyright law, usage rights and/or ownership rights. Because an image may be documentary doesn't mean it's trivial or excluded from copyright protection. Damages are determined in many forms, including statutory damages.

AP exists because it grants license rights for it's content. Without this service, a lot of newspapers, websites, etc. would be fairly bleak. They require permission, attribution when applicable and the few but explicit restrictions include:

- Use that has not been expressly authorized with a License Agreement
- Commercial use
- Use of images of a political party, person or entity that endorses a political party, person or entity, or suggests a political affiliation or promotes a partisan agenda.

There are also specific penalties required (in addition to litigation and resulting legal fees) for violations of use.

http://www.apimages.com/legal/licenseTerms.pdf

It makes me sad that artists, photographers and businesses with legal ownership of their content is treated with such dismissive attitudes. It hurts all of us when ignorance continues to undermine our rights and protections with the inaccurate assumption that these things are insignificant or boorish. It amazes me, really.

I advocate and support copyright/IP laws unilaterally - so that everyone, including Fairey receives equal protection and rights for his/her work. I don't dismiss violations simply because it was a large organization who's content was misused... I think Fairey is incredibly talented and I think he used poor judgment. But because his artwork is cool and the subject matter one I really, really like - doesn't mean I think he is excused from the rules laid out for all.

By violating the rights of the owner of the image, Fairey has no legal claim to the rights for his poster - it creates a snowball effect and ends up being detrimental to the whole issue of ownership.

It makes me crazy that property and ownership is so obviously and universally respected in nearly every other aspect one can come across. Ownership is ownership. Non-owners don't get to determine the terms... especially when the laws expressly state exactly that.

Ugh.

[jacksonian]

33. first of all, i'm a professional artist and have been one for

many years. I have oftentimes had to protect myself from art thievery, but I also recognize that people using my work in other ways is an help. Art is for people to share fairly, it makes us a culture.

What makes you crazy about property and ownership rights because you are trying to equate creation of art with owning a thing like a car. Your car is yours, nobody else has to like it, and there is no way it gains in value for you if someone else co-opts your use of it.

Art doesn't work like that. It is a community-centered activity - if no one likes your art, it is worthless, unlike any non-artistic "thing" you own. I go back to the argument I made about the pictures value now being enhanced - this picture now has a marketability it never had before because of someone "stealing" it and doing something to it to make it different. NOTHING ELSE WORKS LIKE THIS, SO WHY SHOULD THE RULES BE LIKE OTHER THINGS?

Non-owners are the sole judges of art's value.

I would also like to remind you that art worked just fine for centuries without any rights for artists at all. I'm not advocating this, but true it is. Called folk-art, people made and created thousands of incredibly beautiful works for almost no wealth compensation, and we're all the richer for it. This paradigm you put forward, while it may be the way our law reads right now, is only viable because the implications have not yet played out. You don't want to live in a world with copyright symbols on everything, where every image or idea is charged for, where the ABC/Disney/GE/Warner/Whatever comglomerate of the future owns everything people find interesting. Don't tell me about artists gaining from these rules - artists are famous for selling things "for a song" and, yes, I think I am properly concerned about exploitation in this matter. Look, the actual truth of the matter is that no art, however innovative, is ever truely original. All art has to come from somewhere, and according to you, those somewheres have right to sue.

Now don't take me to the other extreme. All artistic stealing is not OK. Where one shows harm, there should be compensation. The key what is added of artistic intent and how it is used. AP took a photo, and they deserve protection for this. I can see the artistic elemnts they have done to make the photo something - the specific pose is interesting, the backgroud patriotic and colorful, but that's about it and the atrtistic elements are kind of slight. I could imagine the same photo being taking randomly by a non-professional. However, if some other publication tries to reuse the photo and claim (even implicity) that it was their shot, AP would have every right to stop that activity. They would have been harmed because now their own use is compromised by people thinking it belonged somewhere else. But the problem they have is the central interest in the image - Obama's face - IS NOT THEIRS TO OWN, and the use of this generic image in this fashion is not harming them, it helps them.

What Fairey did was take a generic, a head-shot of a widely-known public figure, and add artistic elemnts to make something a new and completely different experience, as different as any experience of Obama's face could be. If AP had added more artistry to the original image - say a design in the background or a montage effect or something, AND then Fairey used those elements - well, different case and AP would have claims.

But that's not what happened. What happened here is AP is using those property rights in an inappropriate fashion - suing someone for the "damage" of increasing the value of their property. No sir, it is you who turning justice on it's head by not recognizing the special case of "owning" artistic expression.

[nebenaube]

2. Nope... Sorry AP it's not the same picture

Subject position is inconsistent; shading is different.

[dansolo]

5. Actually, the artist admits it is based on the AP picture

I think that the AP has a legitimate beef. If he is making money off of a derivative work based on one of their pictures, they are entitled to some compensation.

[Hippo_Tron]

8. The only similarity is that Obama is looking in the same direction

If he painted a picture that looks identical to an AP photo that would be one thing. But how the hell does one paint Barack without looking at photographs of him?

[sohndrsmith]

12. The frustrating thing is, they may very well have granted him

usage rights if he'd only asked and gotten it in writing.

News photographers make their living from their images, even if those images are ultimately owned by whoever employs them. AP may have bought the photo from a private photographer. Either way, people invest a lot to create skillful, documentary or marketable images and it's wrong to take them for free and sell your own version.

Believe me, I wish I could use any photograph I wanted as a basis for my paintings without hurting anyone or dismissing someone else's livelihood and property. But I can't, and I wouldn't want someone to use my work and make posters from one of my paintings without my permission. Just because it's a photo - or it's owned by a huge news organization - does not mean it has no value.

Photographers work very hard to get the photos we love and enjoy... but taking them when ownership is protected - and often very valuable, copying them (in paint or otherwise) is stealing. And that's wrong.

[firedupdem]

3. Good Grief... n/t

[Clear Blue Sky]

4. So Obama looks like himself. That's grounds for a lawsuit?

[shireen]

37. i was about to post the same thing.

They should sue Obama, he's obviously stole their copyright of him too.

Idiots....

[sohndrsmith]

6. Uh oh. If he used a copyrighted photo for this, then that's not okay.

No matter how wonderful his artwork is or how much I like it. That is a no-no. It's a big deal (if he in fact, he is responsible for copyright infringement. I would have to know more before I would even attempt to say anything definitive on that).

It's just something you don't do, particularly if used commercially/for profit if the original owner did not release permission or usage and if, in fact the image is protected. There are instances where using an image is not infringement, but if you're going to sell anything, especially, you can't use an image without doing your homework.

Using an image for educational purposes or altering something in the context of satire or using appropriate attribution/credit, this is not legal. Photographer's works are just as valuable as other creative works (music, painting, writing, and many more) and you can't profit off someone's work without permission (or paying royalties) or whatever conditions apply.

I'd hate to see this image disappear (it never will), but Fairey (sp?) may owe the one who owns the image and the rights to it a lot of money - or whatever he's made...

Or if it isn't copyright infringement, then that would be lovely. It sounds a little concerning, though...

[camera obscura]

7. So their photograph has become a historic icon... and they're worried about making a profit.

Why am I not surprised?

[sohndrsmith]

10. It was not his to use. His talent is irrelevant if he had no right to the image. n/t

[BlooInBloo]

11. Yup. And FUCK THEM.

[sohndrsmith]

15. So I guess if you came across a show I was having, you would

feel entitled to take any painting you wanted - for free - without asking - because you wanted to make prints out of it and sell thousand of posters (successfully, I'm sure, because my artwork is good. (hee) ).

You wouldn't consider that wrong? I think you would, most people would. The problem is most people don't realize that situations like the one concerning the Obama photo -
Is__No__Different.

If it's the huge corporation aspect that bugs you, why don't you go buy a bunch of pepsi or coke bottles, refill them with your own concoction and sell them to stores and gas stations and earn a living from it.

Does that sound ridiculous? Trademark and logo rights are serious business. You don't take them or copy them unless you have legal permission to do so, and pay for the right to receive such permission.

I don't understand why people think the owner of the image is wrong. Who the owner is - is irrelevant, unless you think it's a useful hobby to run up to rich people and take their stuff just because they're rich... or steal corporate identities from companies just because you don't like them.

Or maybe you're mad at people who take other people's creative work illegally. In that case, I concur.

The artist, if he used a protected picture - is WRONG. I'm surprised he didn't square this up before he marketed his posters. I figured he was a practicing artist and therefore assumed he was familiar with the legal process.

[BlooInBloo]

16. You fail pathetically.

EDIT: And fuck Lars, too.

[MadBadger]

17. Ive been trying to think of the right way to respond

Your's works.

[hileeopnyn8d]

21. I'll back you up a little.

Even before the HOPE poster, he has come under fire for copyright violations, and he doesn't seem to like it when it's done to him.

Although Fairey “didn’t get bent out of shape” about Wal-Mart ripping him off, he originally launched his ObeyGiant clothing line because he saw that the Urban Outfitters chain was selling “bootlegged” shirts with his Giant logo. “To see it in there, just ripped off, knowing that somebody just made a bunch of money selling the t-shirts to Urban Outfitters, and here I am, just barely being able to pay my rent was definitely upsetting to me,” Fairey told me during an interview for Mother Jones. “The reason I get pissed off about stuff like that is because I didn’t build up the resonance for that image just to hand it off to someone to exploit.”


http://nyc.indymedia.org/or/2008/06/97988.html

Here's a 2007 article/website about his (admitted) use of copyright material.

http://www.art-for-a-change.com/Obey/index.htm

I don't know whether his use of the AP photo falls under fair use or not, I suspect they will come to a mutual agreement.

[slampoet]

27. Please take a look at my post #26.

PS - Two Words ANDY WARHOL.

[frylock]

13. i hope this inspires shep to create a work exposing the ap..

as the purveyors of All Propaganda that they are. but you gotta make a buck somehow, and the fact that news outlets have been dropping their AP service for other alternatives is surely taking a toll on their precious bottom line. so why not hop aboard the obey giant gravy train?

i hope someone will correct me if i'm wrong, but i don't think shep made jack krap from his PROGRESS/HOPE designs. i believe that all profits went to the obama campaign. in any case, this should go over well. looks like the AP could use a lesson or three on PR.

[MadBadger]

18. This reminds me of the ridiculous lawsuits made by Wisconsin for anybody who uses a our W

We've sued High schools because their logos are the motion W. Its such a ridiculous lawsuit which technically they will win, but in the large scheme of things, WIsconsin needs to get a fucking life.

[uponit7771]

19. The HOPE picture is NOT the AP picture AT ALL, I would counter with attorneys fees and time

[ejpoeta]

20. he didn't even profit from this!!!

wtf! AP is not doing themselves any favors.

[Nicholas D Wolfwood]

22. They don't have a case.

Fairey changed it in such a significant way that it's no longer the same picture. Sorry AP, you lose.

[SIMPLYB1980]

23. The AP is waisting their money on this lawsuit that they won't win.

I think that's hilarious.

[slampoet]

24. The Legal definition is if you change 66% of the content. This changes more than 66%

It is legal and Shep knows that because i and a few other people once told him that 15 years ago when he was living in Providence going to RISD.


I just can't stand reporters who make problems for the little guy simply because they are TOO LAZY TO DO THEIR HOMEWORK.

[KittyWampus]

25. he changed the background, tie, lapel.... overall color and texture. There is a legal formula

which you've stated.

Wonder how you add it all up.

[slampoet]

26. Every single polygon has been changed in color that is more than 66% of the surface.

100% of the background is changed.

The cropping is different and 20% of the surface is taken up by the word HOPE.

And this is the most telling thing is that the head is held is at a COMPLETELY different angle. This makes the general shapes of his head different so even the outlines of the polygons are different.

Take a look at the slight roundness of the lapel under Obama's left ear in the photo and notice in the HOPE poster it has been smoothed straight. This means that Shep actually imagined how Obama would look if he held his head at a slightly different angle and specifically he didn't just rotate the image a few degrees.

Also the tie Obama is wearing has been changed and a Pin has been added with the Obama logo.



If you go by Square Are nearly 100% of this image is different. If you go by artistic process at least 80% of this is different.

Also do i need to remind people that a little boy from Pittsburgh named ANDY WARHOL did this same thing and changed MUCH LESS.



Sorry to get all detailed on people but I used to teach a class in sampling and the legality of derivative art. This has been a pet issue for me ever since Jan Hammer got sued for using preset sounds in a drum machine to make the Miami Vice Theme. (he was found innocent.)

[clevbot]

30. Makes the AP look pathetic

[Meldread]

31. This is ridiculous.

First of all, I saw Mister Fairey on the Colbert Report. He said he received no compensation for his work, and that he had no problem with people using it for free. I do think the picture is in a book he was releasing, one among others, but any profit he has made from it is rather minimal compared to its exposure.

Second, the picture and the photo are dramatically different. While the photo might have been used for inspiration, it is not a direct copy. I am sure Obama might have grounds for a lawsuit to sue all the companies making money off his name and image. He's a booming business right now. He's receiving no compensation. He might have a lawsuit, but not the AP.

Finally, this is the equivalent of the New York City threatening to sue an artist who does an impressionistic painting of the Statue of Liberty. Why would they sue? Because the Statue of Liberty is a local landmark, and thus any picture or painting done of it must have their permission first and profits shared with the local community.

The same logic applies here. It is a painting of a well known and public figure. The only thing he might have lifted was the position of his head. The only mistake he made was admitting that he used an AP photo as inspiration for the painting. Had he not done that, there would be zero grounds for the AP lawsuit.

[BattyDem]

34. So ... AP owns the copyright on that particular angle of Obama's head?

:shrug:

[dbmk]

35. A thread in a phot forum about it

http://photography-on-the.net/forum/showthread.php?t=641452

There is a lot of buts and ifs to this, in terms of whether it has been used commercially, was derived or can be considered original, the amount of infringement economically on APs property.

And there apparently are two versions in play, the latter having been made over at picture the Obama campaign had the rights to.

The photographers home page:
http://web.mac.com/manniegarcia/iWeb/mannie%20garcia/Hope.html

And an interview with him about this issue:
http://photobusinessforum.blogspot.com/2009/02/10-questions-for-mannie-garcia.html

He seems to have his heart in the right place, and just want his name recognized for taking it, and possibly put that to some good samaritan use.

Another thing is that Mr. Fairey could use a little lesson in source accreditation:
http://www.art-for-a-change.com/Obey/index.htm

[Mulehead]

36. Gee, how much did AP pay the guy in the photo for cashing in on his image?

Just sayin'. Bunch o' greedy RW pricks.

[shireen]

38. Shepard Fairey is NOT making a dime off royalties for that image!

He did not copyright it. He wanted people to use it freely.

[Butch350]

39. The AP photographer created a water color photo with a camera?