Comments on: Copying or transforming? http://blogs.geniocity.com/friedman/2009/01/copying-or-transforming/ The ways law rules creative endeavors and the ways law itself is a creative endeavor Sat, 11 Feb 2012 13:08:18 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Ruling Imagination: Law and Creativity » Blog Archive » Why AP has little chance of success against Shepard Fairey http://blogs.geniocity.com/friedman/2009/01/copying-or-transforming/comment-page-1/#comment-2197 Ruling Imagination: Law and Creativity » Blog Archive » Why AP has little chance of success against Shepard Fairey Sat, 07 Feb 2009 00:48:35 +0000 http://blogs.geniocity.com/friedman/?p=1391#comment-2197 [...] As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did. [...] [...] As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did. [...]

]]> By: Ruling Imagination: Law and Creativity » Blog Archive » Why AP has little chance of success against Shepard Fairey http://blogs.geniocity.com/friedman/2009/01/copying-or-transforming/comment-page-1/#comment-2194 Ruling Imagination: Law and Creativity » Blog Archive » Why AP has little chance of success against Shepard Fairey Fri, 06 Feb 2009 14:28:30 +0000 http://blogs.geniocity.com/friedman/?p=1391#comment-2194 [...] As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did. [...] [...] As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did. [...]

]]> By: Ruling Imagination: Law and Creativity » Blog Archive » The fight is on: AP sues Shepard Fairey. http://blogs.geniocity.com/friedman/2009/01/copying-or-transforming/comment-page-1/#comment-2190 Ruling Imagination: Law and Creativity » Blog Archive » The fight is on: AP sues Shepard Fairey. Thu, 05 Feb 2009 04:26:36 +0000 http://blogs.geniocity.com/friedman/?p=1391#comment-2190 [...] various views on something I’m looking forward to: AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its [...] [...] various views on something I’m looking forward to: AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its [...]

]]> By: Ruling Imagination: Law and Creativity » Blog Archive » How do we promote creativity? http://blogs.geniocity.com/friedman/2009/01/copying-or-transforming/comment-page-1/#comment-2185 Ruling Imagination: Law and Creativity » Blog Archive » How do we promote creativity? Tue, 03 Feb 2009 19:46:12 +0000 http://blogs.geniocity.com/friedman/?p=1391#comment-2185 [...] anyone from doing anything with it that I don’t give them permission to do. One commenter on my post last week regarding Shepard Fairey’s Obama campaign poster manifested this confusion about the differences between real property and intellectual property. I [...] [...] anyone from doing anything with it that I don’t give them permission to do. One commenter on my post last week regarding Shepard Fairey’s Obama campaign poster manifested this confusion about the differences between real property and intellectual property. I [...]

]]> By: peter http://blogs.geniocity.com/friedman/2009/01/copying-or-transforming/comment-page-1/#comment-2183 peter Sun, 01 Feb 2009 23:51:10 +0000 http://blogs.geniocity.com/friedman/?p=1391#comment-2183 No, copyright is, under the Constitution, intended to promote creativity, not the individual artist who creates. The purpose is for the social good, not to enrich individuals. If you think I don't know about the other stuff you wrote about, go look at whatisfairuse.blogspot.com, but thanks for the refresher course. I look at Fairey's poster and the original photo and see two entirely different works that express very different things. Do you think the photograph represents anything that conceivably earn hundreds of thousands of dollars and iconic status+ That happened because of what Fairey did. The fact he started from the photo doesn't change the fact the creativity that has real value and resonance is Fairey's, not the photographers. You ought to read the article by Judge Pierre Leval referred to in the link in the last line of the original post. You might want to look at also at Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007). One thing is clear finding that line between a transformative work and a mere derivative work is a difficult question that will continue to be fought over for a long time. But contemporary technology has changed the entire material underpinnings on which earlier views of fair use had developed. And when the material conditions law governs change, the law has to change too. The law does not depend solely on the taste of the judge. And the 2 Live Crew case is easy to understand as parody. The song used the original music of Pretty Woman to criticize what Orbison's song expressed about women and to express an entirely different view. We could never outlaw parody or any other kind of commentary or criticism that doesn't use the copyrighted work as its draw. The Salinger biography's use of Salinger's letters wasn't fair use because, despite the fact biography is plainly a form of criticism, the author used so much of Salinger's letters that readers would buy the book solely to read writing by Salinger that had never been published. Nothing, in fact, had been published by Salinger for decades, and there was therefore a massive market HE had created that the biographer was trying to exploit. Fairey was not exploiting any value or audience the photographer of the Obama picture had created. No, copyright is, under the Constitution, intended to promote creativity, not the individual artist who creates. The purpose is for the social good, not to enrich individuals.

If you think I don’t know about the other stuff you wrote about, go look at whatisfairuse.blogspot.com, but thanks for the refresher course.

I look at Fairey’s poster and the original photo and see two entirely different works that express very different things. Do you think the photograph represents anything that conceivably earn hundreds of thousands of dollars and iconic status+ That happened because of what Fairey did. The fact he started from the photo doesn’t change the fact the creativity that has real value and resonance is Fairey’s, not the photographers. You ought to read the article by Judge Pierre Leval referred to in the link in the last line of the original post.

You might want to look at also at Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007).

One thing is clear finding that line between a transformative work and a mere derivative work is a difficult question that will continue to be fought over for a long time. But contemporary technology has changed the entire material underpinnings on which earlier views of fair use had developed. And when the material conditions law governs change, the law has to change too. The law does not depend solely on the taste of the judge.

And the 2 Live Crew case is easy to understand as parody. The song used the original music of Pretty Woman to criticize what Orbison’s song expressed about women and to express an entirely different view. We could never outlaw parody or any other kind of commentary or criticism that doesn’t use the copyrighted work as its draw. The Salinger biography’s use of Salinger’s letters wasn’t fair use because, despite the fact biography is plainly a form of criticism, the author used so much of Salinger’s letters that readers would buy the book solely to read writing by Salinger that had never been published. Nothing, in fact, had been published by Salinger for decades, and there was therefore a massive market HE had created that the biographer was trying to exploit.

Fairey was not exploiting any value or audience the photographer of the Obama picture had created.

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