“Hope” – The Legal Battle!
by David HarsanyiAn interesting kerfuffle recently erupted when the Associated Press accused Shepard Fairey, the artist who designed the famous Barack Obama Hope graphic, of copyright infringement and threatened to sue him.
Glen E. Friedman — the super-talented chronicler of my cultural youth – comes up with, sorry to say, an argument in defense of friend Fairey that makes little sense. According to Xeni Jardin at Boing Boing, Friedman’s point can be boiled down like this: The Obama picture sucked originally and was improved. And because Fairey donated every penny he made from the graphic to the Obama campaign, he saw no profit on the graphic and should not be liable.
I’m not a lawyer, so I am certain there are complex legal implications regarding the fair use of this type of picture. Nor do not I understand why the AP would waste its time trying to punish Fairey. The artist has now hired Anthony Falzone, the executive director of the Fair Use Project, a group, that according to Danielle Sacks at Fast Company, “encourages creators to modify copyright terms in order to “increase the amount of creativity (cultural, educational, and scientific content) in “the commons” — the body of work that is available to the public for free and legal sharing, use, repurposing, and remixing.”
But how can anyone argue that Fairey did not profit? To begin with, through this iconographical work, his professional reputation, and thus his future financial rewards, have unquestionably skyrocketed. Without the Associated Press shot there is no icon. Yes, it wasn’t happenstance that he used this picture, but it worked. And unless Fairey took his own shot of Obama, someone was going to lose their work.
In addition, Fairey chose to help Obama get elected — which is a profit of political self-interest.
To put it another way, imagine if a George Bush supporter had taken Friedman’s work without permission and created a graphic for Republican political gain and then donated his earnings to the campaign? Would Friedman then contend that the person made no profit from the picture and it was OK to utilize it without permission?
Now, I will admit that — to me at least — Friedman’s work has far more artistic merit than a run-of-the-mill shot of the president. But, I’m also certain, that his work might seem ordinary to a Republican housewife in Atlanta. Friedman, I will guess, believes that the worth of art can be subjective, as well.
And here I thought era of Obama had made small-minded and selfish ideas like profit a thing of the past.
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35 Comments
In a perfect world, there’d be a long line of people waiting to sue Shepard Fairey.
A long line of people about a hundred years long.
Well, that didn’t take long. Looks like the bloom is off the Obama rose, and its just the thorns now.
Didn’t AP steal this from Mao, Chavez and Che?
Trial lawyers going after the artist who helped elect the candidate of trial lawyers.
It has been suggested, that you can eliminate a serpent, if you can encourage it, to start eating it’s own tail…
Delicious!
Wait-whoa!
It’s the socialist dream that all things belong to everybody!
As soon as the artist saw that picture, it belonged to The People!
AP is being The MAN! How dare they takes the People’s Leader and try to lay claim to his image?
Down with the Man!
I think the AP is way off base in suing. It is obvious that Fairey did much more than copy a picture. I think our copyright and patent laws are way out of line. To me this lawsuit doesn’t pass the smell test.
So the AP is now asserting proprietary intellectual property rights over any image of Obama depicting him in a coat and tie and glancing slightly up and to the left? Because the Fairey image on the right is most definitely not simply a Photoshopped version of the photo on the left. The head, mouth and necktie are all in different positions. The AP’s claim is bogus on its face.
Since all I’ve heard from lefty-theatre folk over the past year is that Barack Obama is the first candidate to have an “Arts Platform” (which basically boiled down to increasing funding for the NEA, health care for artists and “promoting cultural diplomacy”) it will be interesting to see how he and his campaign organization address this very serious copyright infringement, an issue held near and dear to every artist’s heart.
I think it’s fair use, but I’m not a lawyer. Only an aspiring stand up comic trolling for material to keep my act at the Comedy Club fresh. I’m working on a routine about jokes that angry conservatives want to hear about Obama. I believe I have come to the right place.
Obama says the economy is in a recession. How would he know? Things haven’t changed on the south side of Chicago since the last recession.
Obama says that he wants to protect a woman’s right to choose in the case of rape. Aren’t most of those guys down there on the south side of Chicago a bunch rapists? Sounds like he is voting against the people who voted for him.
Obama said, I didn’t know that my appointees failed to pay their taxes. Where I come from, no one pays taxes. We only get food stamps and welfare.
I know for a fact that fairey was selling signed copies for $500 a pop he also has been paid by the obama campaign.
Stuart said:
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The AP’s claim is bogus on its face.
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Except that Faiery (quick aside–anyone else find that name unintentionally hillarious?) admitted he based his work on the AP picture.
Not that that means this doesn’t qualify under fair use (I’m not a lawyer so I don’t know).
This is the same ‘artist’ that made similar depictions of Stalin and Lenin in addition to Mao and just about every other prominent Brutal Communist dictator.
I think he needed to ask to use the photo as a reference if he was going to use his art in a way that brought him $. At least credit to the photographer/owner if the photo was copyrighted. Artists do stuff like this all the time, read your basic TOS to any art-posting website. All standard protocol.
Commercial vs. Non-commercial use is one of the main factors in determining fair use under the Copyright Act.
Profit is a non-issue in copyright infringement. Copyrights cover reproduction, derivatives (probably where this falls), distribution, display, and performance.
I think he should have asked to use the image. I know that if I had a photograph that was being used in some way without my permision I’d have an issue with that. Now if I was asked there would be a better chance of me giving my aproval. All he had to do was ask. What if it was a picture of a your child? Are the rules suddely different.
The artist has already admitted that the AP photo was his source for the painting. Stop claiming that Obama’s contrapposto is slightly different or that the necktie is fatter… Your argument is toast. Photographers are artists too, and the AP’s photo was ripped off here.
Step one of Socialism is to steal private property. The AP should be grateful only an image was stolen and not . . . the AP.
The word you are looking for is called transformative.
http://en.wikipedia.org/wiki/Transformation_(law)
Bill,
Neither AP nor the photographer of the original picture knew it was based upon the photo till the artist told the world.
Nice shiny hat tho!
This is just hilarious. However, I was surprised that picture got popular to begin with. Something about it seemed remeniscent of the old soviet propaganda poster…For the longest time, I assumed that pic was created by a righty-blogger to mock Obama. Shows how out-of-touch I am….
Fairey is hoping to gain financially from ripping off the AP? Oh, the audacity of it all!
Surprising…. NOT
A street artist famous for his red, white and blue “Hope” posters of President Obama has been arrested on warrants accusing him of tagging property with graffiti, police said Saturday.
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/02/07/national/a074934S62.DTL&tsp=1
Fairey is being pimped by USA Network as being someone to watch based on the Obama pic, so I would say that he is profitting nicely.
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