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A comparison showing Mannie Garcia’s photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters. The portrait of Obama by Shepard Fairey is a stencil portrait. Fairey created a stencil over a scanned and enlarged version of the photograph that was slightly tilted according to various articles. Fairey and a gallery that represents him has stated that he did in fact use the Garcia photograph as the base image for his Obama posters according to news articles. The Assosicated Press claims to own the copyright to Garcia's photograph and  desire compensation from Shepard Fairey. Fairey's lawyer states that Fairey did nothing wrong and that is use of the image falls under fair use. Do you think his use of the image falls under fair use? Since the photograph itself is not widely known some lawyers have suggested that Fairey's use does not fall under fair use. In order for it to be fair use there must be a dialogue between the old work and the new work that is obvious to the viewer-- obvious to the majority of the public. Unfortunatey for Shepard the majority of people, including Garcia and the AP, did not make the connection between Garcia's photograph and Fairey's Obama posters. So did Fairey fail at fair use? If so, did he willfully infringe on the photograph?

I have posted several articles about Shepard Fairey and fair use that might be of interest to some of you. My thoughts, http://www.myartspace.com/blog/2009/02/art-law-professionals-weigh-in-on.html

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Comments

( 33 comments — Leave a comment )
thaily
Feb. 7th, 2009 07:53 pm (UTC)
Tracing =/= fair use.
Artists want their copyright respected and photographers deserve the same.
lyosha
Feb. 7th, 2009 07:59 pm (UTC)
Does this same thing really need to be posted in every online community?
spiffystuff
Feb. 7th, 2009 08:40 pm (UTC)
eh... I think there is a dreadful lack of understanding about what "copyright" means (I LOL when someone "Copyrights" an icon or macro that has images from someone else, or a general character).
I guess the repetition can be annoying but this crosses multiple interests (art + politics = everything ever)
(no subject) - my_art_space - Feb. 10th, 2009 06:16 am (UTC) - Expand
eddy_xeno
Feb. 7th, 2009 08:00 pm (UTC)
I don't think it's fair use. =/ Still seems kinda anal to blow it up this much though, seems like the kinda thing the two groups should be able to settle without making it to the internet.
(Deleted comment)
(no subject) - stripedpony - Feb. 7th, 2009 08:20 pm (UTC) - Expand
(no subject) - thaily - Feb. 7th, 2009 09:10 pm (UTC) - Expand
(no subject) - spiffystuff - Feb. 7th, 2009 09:35 pm (UTC) - Expand
(no subject) - thaily - Feb. 7th, 2009 09:43 pm (UTC) - Expand
(no subject) - eddy_xeno - Feb. 7th, 2009 11:29 pm (UTC) - Expand
bladespark
Feb. 7th, 2009 08:07 pm (UTC)
*blink* I thought the purpose of this community was to warn people about bad artists, bad commissioners, and art theft? I dunno about you, but I'm never going to be commissioning Shepard Fairey...

I'm a little baffled why this was approved. It may be a topic worth discussing, but why discuss it here and not somewhere where it actually belongs? This isn't "art_philosophy" or even "art_ethics." It's "artists_beware." What am I supposed to beware of here?
lilenth
Feb. 7th, 2009 08:49 pm (UTC)

No, but perhaps you might be one of the people he steals from someday? There's always a chance.
(no subject) - thaily - Feb. 7th, 2009 09:13 pm (UTC) - Expand
allykat
Feb. 7th, 2009 08:09 pm (UTC)
IMO, this is OT for the community.
houndofloki
Feb. 7th, 2009 08:38 pm (UTC)
Not that this isn't an interesting subject and all, but it's already been posted to and thoroughly discussed on pretty much every LJ community even vaguely related to art or politics.

Starting to fall pretty firmly into the "dead horse" category.
thrashbear
Feb. 7th, 2009 10:19 pm (UTC)
This is the first time I've seen this article. You're a member of more communities than I am. It's not a dead horse to those who haven't seen it yet.
(no subject) - bucktowntiger - Feb. 8th, 2009 04:00 am (UTC) - Expand
(no subject) - fiercereaper - Feb. 9th, 2009 02:47 am (UTC) - Expand
(no subject) - pariah_kittie - Feb. 9th, 2009 08:25 pm (UTC) - Expand
spiffystuff
Feb. 7th, 2009 08:45 pm (UTC)
I just read this, actually, after accidentally clicking on a poster here that had a link to this as their first entry (I meant to go back to my f-list heh)

Really found this part of your article interesting:

Orr’s put a SARs protective mask over the famous Fairey image and titled it ‘Protect’. Shepard Fairey sent Orr a cease-and-desist letter and threatened legal action even though the Obey Giant image is considered iconic-- thus, Orr’s use of the image could be considered fair use. If anything, Orr’s use of the image falls under fair use more so than Shepard Fairey’s fair use claim involving the Associated Press photograph of Obama. After all, the photograph of Obama itself was not widely known.

IMHO, I can forgive someone morally (if not legally) for this sort of thing if their practices are consistent even when they are on the losing end of copyright. The fact that he demands other people not appropriate his work pretty much makes him a hypocrite in my book, and I hope he loses any copyright claims made against him. I hate it when people feel entitled to other people's property (intellectual or physical - apparently he's been arrested for vandalizing arting buildings without permission) but don't freely give theirs own out in return.
(Deleted comment)
(no subject) - spiffystuff - Feb. 7th, 2009 11:58 pm (UTC) - Expand
(no subject) - pariah_kittie - Feb. 9th, 2009 08:36 pm (UTC) - Expand
anjel_kitty
Feb. 7th, 2009 09:41 pm (UTC)
I for one am happy you posted this. It sort of shows us the international light on copyright infringement that we deal with on a much smaller level.

And its interesting to see how these subjects play out in a more legal perspective.
thrashbear
Feb. 7th, 2009 10:17 pm (UTC)
Detractors aside, thank you for sharing this. This is the only time I've seen this article, so people's bitching they're seeing it "everywhere", means they are members of communities I am not. I know I'm not the only one.

This applies to me because this is my medium as well: tracing. A customer asks me to do a woodburning portrait of a favorite pet, which I trace from a photograph. In my own work, I'll use a picture I like from books, magazines, or the internet. Yes, I will sell the finished piece. I don't hide the fact that I used a photograph as a reference, and I never pass my stuff off as original images.

So this article is VERY topical, if nothing else because it speaks to me and my work personally.
(no subject) - anjel_kitty - Feb. 7th, 2009 10:53 pm (UTC) - Expand
(no subject) - spiffystuff - Feb. 7th, 2009 11:47 pm (UTC) - Expand
morning_dragon
Feb. 8th, 2009 12:02 am (UTC)
That is a very popular pose for Obama and you can see it in the news and on several other areas while he is talking or after. I would say fair use.
thaily
Feb. 8th, 2009 12:30 am (UTC)
This isn't about similar poses, we're not talking about sparkle dogs on DA here. We're talking about a blatant trace of a copyrighted image which is being commercially exploited.
(no subject) - grimmhooke - Feb. 8th, 2009 06:04 am (UTC) - Expand
koi_suru_usagi
Feb. 8th, 2009 03:52 am (UTC)
I personally think that no one would have a problem with it if the print/trace had not made a shit-load of money from shirts and pins and posters and stuff.

The photographer is just probably butt-hurt over the fact that some guy is making more money off his work then he did.
pariah_kittie
Feb. 9th, 2009 08:30 pm (UTC)
But it makes sense. Even if it wasn't a photograph - if someone took your work (which you OWN copyright to), altered it and sold it for who knows how many hundreds or thousands of dollars, you wouldn't be bothered one bit by it?
(no subject) - koi_suru_usagi - Feb. 10th, 2009 04:09 am (UTC) - Expand
cissa
Feb. 8th, 2009 05:23 am (UTC)
It sounds like even the artist and his reps say the posters are derivative works. Derivative works require licensing under copyright laws.
( 33 comments — Leave a comment )

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