Week 6 - Copyright, Fair Use and the Graphic Arts

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.

In the end it was Associated Press who asked for licensing terms from Fairey for use of the photo from which Fairey has profited.  Fairey subsequently sued Associated Press claiming they had no rights to his end product since hechanged the image to the degree that it became another image and not a copiedimage.  Since then they have come to a settlement.

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

http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/a_last_word_hopefully_and_upda_1.html

This site gives a total look at time line of the copyright issue involving Fairlee and the AP photo of Obama.

http://topics.nytimes.com/topics/reference/timestopics/people/f/shepard_fairey/index.html

This site has archived articles about Shepard Fairey.

http://anarchyjim.digitalanarchy.com/adobe-photoshop-plugins/obamas-poster-uses-stolen-photo/

A blog giving thoughts about Fairlee’s actions.

http://online.wsj.com/article/SB123716866712036921.html

Great article on technology and art using the example of  Shepard Fairey use of original photos for his art work.

http://wiki.creativecommons.org/Frequently_Asked_Questions

Find out about Creative Commons here.
http://www.huffingtonpost.com/2011/01/12/shepard-fairey-ap-suit-dropped_n_807800.html

More information about the Shepard Fairey Vs. A.P. lawsuit.
http://www.abajournal.com/magazine/article/hope_for_copyright/
The Fairey suit told from the perspective of the legal aspects of copyright and fair rights.