A prime example of how delicate the line between fair use
and copyright law is shown clearly in the legal actions by Associated Press and
Shepard Fairey over a photo Fairey had taken from Google images and altered in
an artful manner with the use of a graphic art applications such as PhotoStop
and Illustrator.
This image was used as
a poster by the Obama campaign.
Was Shepard Fairey part of President Obama’s campaign staff
or hired by staff to create that poster?
The answer is no. Shepard Fairey
is a street artist who came to the attention of the traditional world of art
after creating that poster image of President Obama that resonated throughout America. President Obama’s campaign workers used that
image for campaign gatherings as well as for fundraising purposes.
The poster in question was created early in 2008. Since then Fairey has used the image
commercially on such items as sweatshirts and done quite well. He also created a mixed-media stenciled portrait from that very image which the National Portrait Gallery, located in Washington, purchased in 2009.
Mannie Garcia was the original photographer of that particular image of Candidate
Obama and on temporary assignment for Associated Press in 2006. Fairey did not give credit to the Garcia or
Associated Press for that photo.
Different articles, blogs and opinion pieces in various
papers give different versions of Garcia’s reaction to his photo being used as
a basis for Fairey’s graphic art image.
A Wall Street piece claims Garcia was irritated and believed photography on the web was
not free for use. A Philly Enquirer blog claims Garcia was not angry.
If Associated Press or Garcia had used a Creative Commons license for
that image or Fairey had sought out the source of the photo to ask permission
to use with a credit, this disagreement may never have happened. (I believe it would have happened in any event but would have settled quickly.) In his suit against Associated Press, Fairey claimed the changes to the original photo transformed that image to a totally different product, therefore, protected under Fair Use.
Copyright laws exist to protect the owner of a piece of artwork and
for good reason. Fairey did alter the
photo but it was still similar – very similar – to the original image. Fairey certainly is very creative and is able
to turn a very good photo into a very successful piece of graphic art. But he did not take that original photo and acknowledgement of the photo’s origin needed to
be given.
Resources
This site gives a total look at time line of the copyright
issue involving Fairlee and the AP photo of Obama.
This site has archived articles about Shepard Fairey.
A blog giving thoughts about Fairlee’s actions.
Great article on technology and art using the example
of Shepard Fairey use of original photos
for his art work.
