Sheperd Fairey Lied About Using Obama Photo. However…

Sheperd Fairey Lied About Using Obama Photo. However…



So, it looks like the artist behind the iconic poster of Barack Obama actually did use an A.P. image as a template to create it. Still, there’s a lot to discuss about copyright infringement, Fair Use, etc.

However, first the details from the NY Times:

The A.P. claimed in January that Mr. Fairey owed them credit and compensation for using the photograph. But in February Mr. Fairey sued The A.P., seeking a declaratory judgment that the poster did not infringe on the agency’s copyrights, and that he was entitled to the image under the “fair use” exception of the copyright law. The A.P. countersued in March, saying that Mr. Fairey misappropriated its rights.

Mr. Fairey told The A.P. — and his own lawyers — that he used a shot from an event about Darfur at the National Press Club in Washington event where Mr. Obama was seated next to George Clooney. Instead, the photograph he used was a solo image of Mr. Obama’s head, tilted in intense concentration. Mr. Fairey admitted that in the subsequent months following the suit and countersuit, Mr. Fairey destroyed evidence and created false documents to cover up the real source.

“In an attempt to conceal my mistake, I submitted false images and deleted other images,” Mr. Fairey said in a statement. “I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”

Yes, Fairey lying about this was wrong, stupid, etc. Shame on him for that. But, as the title suggests, that doesn’t make his use of the photo copyright infringement.

Let’s look at The A.P.’s actual claim. They’re saying that you can’t create ANYTHING that uses their content as mere reference material without paying them. They’ve done similar things with bloggers in the past, and their policies are, in a word, nuts. Because they literally expect people to pay to use even a tiny snippet of their writing or posting a picture. Actually, I’m probably in violation of their terms of use right now for using the photo at the top, but that’s where Fair Use comes in…

The government describes it as such…

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Now, there are 4 basic ways that Fair Use can be applied to any given case, and my guess is that Fairey is using the following as his way out, “The effect of the use upon the potential market for, or value of, the copyrighted work.” What that means is that the use of the copyrighted material doesn’t negatively impact the value of the image.

And here’s where the true irony of this case comes in…nobody even knew about that Obama photo before Fairey made it famous. So he created the market for The A.P., not the other way around.

But wait…there’s more!

Apparently, there’s confusion as to whether The A.P. even owns the photograph!

Again, from NY Times…

Complicating the legal battle, in July, the freelance photographer, Mannie Garcia, filed court papers in July saying that he was the one who was owned the copyright of the 2006 photo; Mr. Garcia’s assignment was to photograph Mr. Clooney, and he contended that he never assigned his copyright rights to The A.P.

So let me get this straight…The A.P. told somebody to photograph Clooney but they’re claiming that ANY photograph taken during that time belongs to them?

Hmmm….pot meet kettle. Kettle, pot. I’m sure you two have a lot to discuss. Maybe you can talk a little about this guy while you’re at it.

  • kranky kritter

    Based on my background knowledge from publishing, I would be unsurprised to see this go up to the Supreme Court. The bounds of fair use have simply not been outlined in a clear and discernible fashion that excludes precedents that serve as useful examples.

    In the absence of this, what we have is lots and lots of biased parties making self-serving arguments, and interpreting rules and their phrases in whatever fashion is most convenient.

    As written, the law really doesn’t allow one party to use “fair use” to do things such as repeatedly copy a 2nd party’s photographs to make up a substantial part of that 2nd party’s enterprise. Like routinely taking AP photographs and using them on your website.

    Fairey clearly used someone else’s copyright protected image as the primary basis for his work, without permission or attribution. It strains reason to say that the original image was merely a reference point. That’s yet another case of a technically accurate description which conceals the truth of what went on. When you see them side by side, I think my description of the photo as the primary basis for the artwork is astonishingly obvious.I’d be shocked if he didn’t lose in the end. My experience-based understanding of the law as it has been applied over and over and over in publishing says he’s wrong.

    Of course, with a minimum effort, Fairey could have gone about making the artwork in question without ever getting called on for copyright infringement. All he would have had to do was to use multiple images to create his own composite.

    The biggest general problem here is that we have 18th, 19th and early 20th century laws for a late 20th and 21st century problem. The ease of copying we now enjoy simply could not have been anticipated when the laws now in effect were created. And as usual, whenever these laws were revised, they were changed to further benefit copyright holders, because no powerful organized interest groups exist to protect the interests of the other side.

    Here’s the thing. We really do need copyright laws to protect creative enterprises like music, movies, photos, and so on. Unless we think as democratic consumers we’ll be able to get the same quality we now enjoy after well-compensated professionals are replaced by part-time hobbyists. We need to strike a better balance between desirable outcomes:

    1. Creators who make good and great things should reasonably expect compensation for that creation, and other parties who seek to profit off that should be expected to share their profit with the original creators

    2. Creative 2nd and 3rd parties should not be unreasonably constrained from making even better and different things by building on the creative work of others.

    IMO, this is best solved if copyright laws are enforced fairly rigorously on 2nd parties who profit, but the duration of this protection is substantially shorter. no one should be collecting royalties for Happy Birthday anymore, for example. So time would be one way to more quickly transfer creative products to the public domain. Success is another. Once someone has sold 10 or 50 or 100 million or a billion copies of something, I think you can fairly argue that it’s been purchased enough to belong to the whole world.

  • John Burke

    I doubt that images can be reproduced willy nilly under fair use. Fiar use applies to quoting a passage or two from a book or AP article. When you reproduce an image, you’re using 100% of it, not a small part.

    The issue then may be whether dressing AP’s image up in Obama campaign colors and selling it counts as using the whole image. I don;t know where the law will come down but it seems to me that the guy used the image, 100% of it, period.

  • Gaucho Politico

    fair use is a four factor test under section 107. each factor is to be considered and no single factor is dispositive. The court will look to the character and nature of the use, the nature of the original source, the quantity and quality of the taking, and the effect on the market for the original or its derivatives.

    With out getting too deep into the case law or writing a long piece i think there is a very good case that this is fair use. The use appears to be sufficiently transformative and although money was made here the broader public benefit may outweigh that. Additionally, the photo is likely to serve a different market than the original and i dont think the ap is going to be able to produce figures to show a real loss in value. As to the amount of the taking, the taking isnt actually complete. he took what could be described as the heart of the photo, the obama image, but not the flags behind obama. its hard to argue that you cant take the obama part to create a picture of obama.

  • Gaucho Politico

    I will add this long discussion between experts on this topic.

  • kranky kritter

    Gaucho,I agree that a good case can be made that it’s fair use, because the four factors are general and subjective enough for any good lawyer to make a good case.

    My sense is that in such instances the court looks closely to the original point of the law (to protect creators from having their work used without substantial compensation() and to some sort of overarching principle. As well as to established perspectives within the industry that most folks understand and respect.

    When you look at them side by side, I just don’t think the pro-Fairey argument, passes the sniff test, even if you can make a wholly plausible argument via a generous interpretation of things like transformation and the quantity of the taking.

    For example, let’s look at the quantity of the taking. If (and I’m making up these numbers) a photo of a US President is composed of 42% pixels that make up the President’s image and 58% that make up the background, is the court likely to rule that each pixel has equal weight and so that it’s only a taking of 42% of the image?

    No. My sense of SCOTUS rulings is that they seldom set aside common sense in favor of such an argument. IMO, they are far more likely to say something like “everyone knows that the original work is of interest and value only because of the image of the President, so it’s more like a 100% taking.” Feel utterly free to disagree with me here, that’s your right, but I’d bet money I’m right. The annals of SCOTUS are rife with dismissals of clever and technically accurate arguments like the pixel one I just made up. When such arguments obscure the heart of the matter, SCOTUS usually brushes them away. One of their very best qualities.

    Then, to the issue of transformation. Maybe it really is sufficiently transformative as you think. Well, if you show the images side by side to 100 people, how many folks besides artists and designers would say that Fairey’s image is substantially different? And how many would say instead that the original image is obviously the primary basis for Fairey’s work?

    Further, what Fairey did is something that most legal departments at most media outlets would put the kaibosh on in a heartbeat. SCOTUS will certainly notice this when AP’s lawyers point it out. Now, were you to argue that most legal departments set the bar way too high because their jobs comprise no more than an endless @ss-covering festival, I would agree. Still. Will scotus toss aside this well-established set of very widely accepted legal practices and throw various industries into chaos? To protect one lazy artist who obviously and now admittedly copied a photo without attribution and did little more than the following??…..:

    • crop the top and add some bottom
    • adjust the shading and textures to a 3-color motif
    •replace the original background with blue on one side and red on the other
    •add a word

    We’ll see. I think that if this wasn’t a case of one artist against the big meanie conglomerate, lots of folks would see it differently. If it wasn’t AP v. Fairey, and instead was simply photographer x against graphic artist y, people would recognize that Fairey has done serious piggybacking for which the original artist deserves compensation.

  • Nick Benjamin

    Then, to the issue of transformation. Maybe it really is sufficiently transformative as you think. Well, if you show the images side by side to 100 people, how many folks besides artists and designers would say that Fairey’s image is substantially different? And how many would say instead that the original image is obviously the primary basis for Fairey’s work?

    I’d guess that most of them would say Fairey’s image is different because it’s been photoshopped, but is based on the photo. That’s the difficulty with asking ordinary people legal questions like this. Most people would assume “primarily” and “substantially” are just adjectives, intensifying the nouns somewhat. But legally, they’re way more important than that.

    And IMO Fairey’s right in this case. No skin off the AP’s ass.

    Fairey was remarkably stupid to destroy evidence, tho. Judges really, really, really hate it when you do that.

  • kranky kritter

    Of course it’s different. The question is how different. And I think if asked clearly and carefully, ordinarily people can grasp distinctions such as the ones I quickly sketched.

    Is what Fairey did like putting frosting on someone else’s cake and calling it his own cake? Or is it more like using someone else’s cake as one ingredient among many in a wholly new dessert?Clearly mileage varies.

    IMO Fairey’s new dessert looks and tastes an awful lot like the AP’s original cake.

    BTW, I’ve got a Masters degree in critical and creative thinking, so I’ve studied creative enterprise and thought about it quite a bit. I have tremendous respect for creative work, and for the work it takes to build something new by drawing in part upon the past creative work of others. And as a pretty decent amateur musician, I fully appreciate the extent to which the new is built on the old.

    It can be nearly impossible to avoid drawing on what you already know and like. Still, I do think there’s a discernible line between drawing upon the creative work of others and using others’ work as the primary basis for your own work.

    Vanilla Ice settled out of court with Bowie and Queen for obvious reasons. Everyone knows that MC Hammer’s Can’t Touch This is really just Rick James Superfreak. Fair Use means you made something different enough that you shouldn’t owe the originator. IMO, Fairey’s ruse is just as transparent as

    Theirs goes, ‘Ding ding ding dingy ding-ding.’ Ours goes, ‘Ding ding ding ding dingy ding-ding.'” — Vanilla Ice, 1990]

    Fairey will settle out of court or lose. I hope AP doesn’t settle.