Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some other explanation?

As much as law students and law professors want legal questions to resolve into nice, neat abstract questions, they seldom do.

Legal questions are only answered definitively by courts when those questions are necessary to resolve lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some nice, easy-to-follow rule so we can definitely predict what we can and can’t do)?

One problem — the most important one for lawyers — is figuring out what happened. It’s amazing how people take the facts for granted, as if we have God’s videotape to play to a jury or something. Instead, we have conflicting evidence. And the court has to decide what it all means.

So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?

Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, Garcia “was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

In paragraph 45 of his Answer to Fairey’s Counterclaim, filed on September 8 in the lawsuit between himself, Fairey, and the Associated Press, Garcia “denies he stated in interviews that he was not ‘angry with Fairey or interested in joining any lawsuits.’”

Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if that’s the case, then is he calling Gralish a liar?

Welcome to the law.

ADDENDUM: Tom Gralish’s series of posts chronicling his efforts to identify the photograph that served as the source of Fairey’s Obama Hope poster are here. The posts re-enforce something I have suggested before: Garcia’s photograph just isn’t that original. Since the nature of the copyrighted work is relevant to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is less creative, the generic nature of the photo militates in favor of Fairey. But I still think Fairey’s work is so obviously “transformative” that it constitutes fair use. Why? Because it had a resonance in the nation that none of the photos Gralish examined would have had on their own. If Fairey’s ability to confer that kind of power upon the source photo isn’t transformative, I ‘m not sure I know what is. And, incidentally, most of my previous posts on the case are here.

Manny Garcia’s own words betray the weakness of his case.

Manny Garcia, who actually shot the photo at issue in the lawsuit between Shepard Fairey and the Associated Press — the photo that allegedly was the source of Shepard Fairey’s Obama Hope poster — is intervening in that lawsuit on the grounds that he, not AP, owns the copyright in the photo. On page 5 of the brief in support of his motion he makes clear he is arguing too that Fairey infringed his alleged copyright in the photo he shot.

I’ve said it before — one of the best ways to defeat an adversary in litigation is to use his own words against him. Garcia now seems to think there’s a principle he has to defend in arguing that Fairey’s poster infringed his copyright in his photograph. AP also thinks Fairey’s work was an infringement but that it owns the copyright in the photograph on the grounds that it was a “work for hire.” Be that as it may, if Garcia thinks Fairey’s work is sufficiently transformative that it stands on its own as an original work, that would be pretty harmful to his and AP’s arguments, wouldn’t it?

Well, for a long time Garcia himself didn’t realize Fairey’s poster might’ve been made from his photograph. As Scene on the Road reported last January, Garcia, after learning that many thought his photo was the original source said, “I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture.” (emphasis added)

Moreover, he said he wasn’t interested in a lawsuit because he understood that artists create by remixing the “things” around them:

[Garcia] was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. “I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.”

So let’s see: Garcia didn’t recognize his own photo was the source of Fairey’s work even after regularly seeing and photographing Fairey’s poster. In fact, it took someone else to point out that Garcia’s work might have been the source. And Garcia himself thinks Fairey’s poster is “a really cool piece of work” and knows “artists” work by doing what Fairey allegedly did with his photo. I don’t know how better to identify and define a work that stands on its own as an original piece of art.

But later, in an interview with NPR’s Terry Gross at the end of February, Garcia seemed to be singing a different tune, saying that Fairey had taken something “that didn’t belong to him”:

Initially when I found out, I was disappointed in the fact that, you know, someone had – was able to go onto the Internet and take something that doesn’t belong to them and then use it. I think that that part of this whole story is crucial for people to understand that simply because it’s on the Internet doesn’t mean it’s free for the taking, and just because you can take it, doesn’t mean it belongs to you.

So which was it Manny — your first take that what Fairey did was “cool,” that you’d like to have a “signed litho,” and that Fairey had merely done what artists do in taking and reworking the photo, or your second take that he had taken something that didn’t belong to him and used it? And why was it you didn’t recognize the poster was taken from your photo?

Shepard Fairey, dishonest Fascist? I don’t think so.

Another artist is upset with Shepard Fairey. 20 years ago Ed Nachtrieb took the photo on the left of an armed Chinese soldier at the onset of martial law in Beijing in 1989.  Fairey’s reworking of the image, conveying its own message, is on the right.

Nachtrieb criticizes Fairey for stripping the image of its context, which was the first appearance on the Beijing streets of lethal weapons and, thus, a the first sign of what would happen in Tiananmen Square. Nachtrieb explains that “[i]mages stripped of their context but retaining  strong emotional elements are  hallmarks of fascist and Soviet propaganda styles,” “drains them of meaning,” and is “dishonest.” And, of course,  he thinks “that Mr Fairey [should] credit those whos materials he uses to ‘inspire’ him.”

Nachtrieb has a point: Fairey’s image plainly does strip Nachtrieb’s original image of its meanings. But it is precisely the fact Fairey’s image does transform the meaning of Nachtrieb’s that makes it fair use of Nachtrieb’s photograph (credit or no credit). But is Fairey’s image “dishonest” or, even worse, “fascist”?

Fairey’s image actually does seem a pretty interesting combination of Soviet Socialist Realism and symbols evoking Yippie demonstrations from the ’60s, hardly the type of thing Socialist Realist painters would have depicted. In short, it’s neither dishonest nor fascistic. It’s just not what Nachtrieb wants done with his image, but, as I’ve made clear again and again, artists don’t have the right to control the uses of their images if those uses are non-infringing. Nachtrieb doesn’t even accuse Fairey of copyright infringment, and rightfully so — it’s pretty damn clear Fairey’s use of Nachtrieb’s photo is fair use.

ADDENDUM: In the comments, Banksy (or someone impersonating him) writes: “You’re an idiot.” I’m not sure precisely which aspect of my idiocy he is referring to, particularly with respect to my post. I doubt he considers Fairey’s piece an infringing one. Perhaps my superficial art criticism and the association between Socialist Realism and Yippie symbolism offended him. I do know that one of his pieces, “War and Peace,” does not seem entirely out of place in this post:

Shepard Fairey, AP, and Dirty Hands

While here at Geniocity today I’m wishing my family had our own backyard wind turbine, Remix America asked me to weigh in as a guest blogger on the latest from the copyright and fair use dispute between Shepard Fairey and AP.

How creative does a work need to be to win the Brit Insurance Design Award?

The British Design Museum gave its Brit Insurance Design Award 2009 to Shepard Fairey for his Obama Hope poster. Nominations for the award were made by “a group of internationally respected design experts, curators, critics, practitioners, enthusiasts.”

Do you think the Design Museum considered Fairey’s poster a sufficiently creative transformation of the photograph from which it was derived to be a non-infringing fair use of the photograph? Do you think AP is spending its money wisely in challenging Fairey’s right to use the photograph?

Edward Morris: “Fairey is not plagarizing or stealing! Get with the program on appropriation art, ok!”

Is Michael Murphy another Shepard Fairey?

Do you think that if we ever discover the photo from which Michael Murphy derived the image for this “shadow portrait” of Obama in urethane Murphy will be accused of copyright infringement?  I do, but I don’t think it’s infringement.

Shepard Fairey, lightning rod

I’ve pointed out both that I believe strongly that Shepard Fairey’s use of an AP photograph to create his Obama Hope poster does not infringe the pohotograph’s copyright and that Fairey has been the target of frequent criticism in the art community regarding his “originality” and regarding his apparent hypocrisy in asserting infringement claims against artists who had appropriated his images.

It has come to my attention that some criticize the Fair Use Project’s decision to take up Fairey’s cause in the case of the Obama Hope poster and think Fairey should be taken down because of his apparent hypocrisy.

As a lawyer, I strongly disagree with this position.  If, as I zealously believe, the Obama Hope poster is fair use, it would be self-defeating to those of us who support the explicit application of the fair use doctrine to transformative appropriation art and various other methods of “remixing” pre-existing works, regardless of our view of Fairey himself,  if we failed to support Fairey’s position in connection with the Obama Hope poster.

I cannot help but recall last year’s lawsuit brought by Yoko Ono, Sean Ono, and Julian Lennon seeking to require the makers of the documentary “Expelled” from using a 15 second excerpt of John Lennon’s song “Imagine” in their documentary.  As I wrote at the time, I believed the lawsuit was misbegotten and that the film’s use of the excerpt constituted fair use despite my love of John Lennon and my contempt for the film, which purports that “theorists” of “Intelligent Design” have unjustifiably been expelled from the conversation regarding evolution and the development of life.  The court hearing the case agreed with my position and dismissed the case. Not coincidentally, the Fair Use Project represented the producers of “Expelled” in that case.

Fair use is fair use, and if we believe in it we should support it wherever it exists, even if we despise the people asserting fair use.  I supported the right of Nazis to march in Skokie, Illinois, a community full of Holocaust survivors, because I believe that the right to demonstrate in public is protected by the First Amendment regardless of how vile the message being conveyed may be.  The Supreme Court agreed.

That doesn’t mean we can’t criticize Fairey when he seems to want his cake and eat it too.  (Though it may be that Fairey’s thoughts have evolved on these issues — while he sent a cease-and-desist letter to Baxter Orr for Orr’s appropriation of one of Fairey’s images, Fairey never followed that letter up with any other action despite Orr’s continued use of the image.)

You may not like Fairey.  But that does not mean we shouldn’t support his position when he happens to be right.  To fail to do so would be to cut off our noses to spite our faces.

Is Shepard Fairey a hypocrite?

I’ve written that I believe strongly that Shepard Fairey’s Obama Hope poster does not infringe the copyright of the AP photograph he stenciled to begin his work. First, I think the poster is a fair use of the image, and, second, I think the poster doesn’t take anything that can be copyrighted from the photo.

But Fairey’s practices have often raised questions about the originality of his art.

There are also questions about his possible hypocrisy. MYARTSPACE today focuses on the fact Fairey is trying to assert he has a trademark in the term OBEY. The blog also discusses two potential claims of copyright infringement by Fairey against other artists.

I’ll stick to the copyright claims. They involve two works that borrow significant elements from two of Fairey’s works. In fact, they borrow everything except the mask over the face of the image on Fairey’s poster:

Both images copy far more of Fairey’s original than Fairey’s Obama poster borrowed from the AP photograph. Nonetheless, there’s a very good argument that they are parodies of Fairey’s original, and thus constitute fair use. A parody uses the original work to comment on the original work rather than using the original work to express a point of view independent of the original work. That isn’t to say using the original in non-parody ways isn’t fair use; it’s only to say that the amount of copying permitted for commenting on copyrighted material is considerably greater than if the appropriating work is not commenting on the copyrighted work.

Fairey’s company sent a cease-and-desist letter to Baxter Orr (the creator of the image above). Orr nonetheless continues to sell his painting online, and Fairey has not followed up with any legal action. Nor has he taken any action at all as far as I know against Dan Nolan, the creator of the poster on the right.

I hope he doesn’t take any further action on Orr’s poster or any on Nolan’s. Nonetheless, the cease-and-desist letter might be an instance of copyright overclaiming. Most people, I think, would have taken the image off the internet rather than do what Orr has done.

Shepard Fairey did not infringe AP’s copyright because AP could not have had a copyright in anything Shepard Fairey used in his Obama Hope poster.

I have discovered another reason Shepard Fairey did not commit copyright infringement when he stenciled AP’s photograph of Obama to begin the creation of his Obama Hope poster — nothing Fairey copied is even entitled to copyright protection.

In Meshwerks v. Toyotoa Motor Sales, Inc. (2008), the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. (My friend and former student Brian Wassom was lead counsel for Toyota.) The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot.  All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.  Thus, the Toyota Solara in the photograph to the right is likely a digital model of a Toyota Solara superimposed upon and moved within the photograph of the picturesque background.

The court noted the obvious difficulties of applying existing law to new technologies (a theme I hammer again and again), but found its solution in the ways, since the invention of photography in the 19th Century, courts have figured out how to determine what photographs (or what portions of photographs) are entitled to copyright progection.  Thus, the court explained that a photographer “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The court noted that it is these elements — the ones created by the photographer –  that are entitled to copyright protection:

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).

There is nothing in the AP photographer arranged or posed in his photograph that Fairey copied in the Obama Hope poster. The image is a stock wire service photograph shot in the midst of a presidential campaign.  It is so unworthy of note that it was many months after the Obama Hope poster became a sensation that anyone even identified the photograph as Fairey’s original source (and it was neither AP nor the photographer who made that identification). In short, Fairey’s poster duplicates nothing that was original enough in the first place to merit copyright protection. There is likely no copyrightable material in the photograph, in fact, that he could have infringed.

ADDENDUM: Brian Ledbetter suggests in the comments that my argument is that “none of the elements in the AP photograph are ‘copyrightable.’”  That is certainly not what I am arguing.  Rather, I am arguing that none of the elements Fairey copied in his poster were copyrightable.

Fairey’s poster was not a copy of the photograph.  It used one element, the angle of Obama’s face, and changed everything else from the photograph.  I doubt the choice of the angle was a creative choice on the part of the photographer. First, I would be surprised if the angle was not forced on him by the place the photographic pool was required to be, and, second, the angle is so generic that I can hardly imagine it represents the kind of creative decision that amounts to originality. If Fairey had simply painted a copy of the photograph, I’d agree that it was an infringement.  But he didn’t.  He changed everything except the angle of the head.  And surely the choice of subject matter for the photograph was not a creative one.

As William Patry points out in his treatise (Patry on Copyright, section 3:18) “In most cases, the photographer chooses a particular subject and either poses the subject or selects the angle and lighting from which to best capture the subject.” But that often is not the case. In Time, Inc. v. Bernard Geis Associates, Abraham Zapruder, a Dallas dress manufacturer, was taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. In a challenge to the pictures’ copyrightability, the court rejected the defendant’s claim that the photographs were “news,” observing that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.”

What is copyrightable in the AP photograph includes things like “the selection of lighting, shading, timing, angle, and film.” Leigh v. Warner Bros., Inc,  (11th Cir. 2000). As I wrote above, the only one of these elements one could conceivably say that Fairey copied is the angle, and that angle is so ordinary a perspective and so unlikely to have been chosen specifically by the photographer that I cannot imagine what Fairey copied that was copyrightable.

ADDENDUM II: Fairey was interviewed by Terry Gross on Fresh Air.  From the interview:

Mr. FAIREY: Well, the AP was threatening to sue me, and they first contacted me and said, you know, let’s figure out how to work this out amicably, which I was vey open to and said, you know, I’m glad to pay the original license fee for the image. For all the reasons I’ve already given you, I didn’t think that I needed to, but I’m glad to do it because, you know, I’d rather just make this easy for everyone.

And then they said no, we want damages. And then they ran a piece in the National Press basically saying I stole the photo, which as an artist that works from references frequently, you know, I feel that they’re calling into question the validity of my method of working as well as the hundredsif not thousands of other artists that made grassroots images for Obama working in a similar way, or people that made things, you know, against the Bush agenda that had a likeness of him. These are all things that were created by people who probably don’t have the resources to license an image.

U.S. Journalism is nothing but he says, she says

What has happened to journalism in this country?  All journalists do is quote one side of an issue and then quote the other side.  Rarely do they engage in meaningful analysis, and when it comes to legal matters they’re often just plain wrong.  In this Wall Street Journal article, the reporter quotes one law professor who says that Shepard Fairey has nothing to fear in his lawsuit against AP in connection with Fairey’s Obama Hope poster, while a lawyer thinks AP will prevail.

I’ve said before: I don’t even think it’s a close case.  Fairey will win. You can call me on it if it turns out I’m wrong.

Now Shepard Fairey sues AP

The AP/Shepard  Fairey showdown continues.  The New York Times reports:

In a pre-emptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of President Obama. . . .

Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia [the photographer] took.

Further complicating the matter is the fact that “Mr. Garcia contends that he, not the Associated Press, owns the copyright for the photo.” Mr. Garcia also states, “‘If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.’”

Mr. Garcia might want to put the “legal stuff away,” but,  as I’ve written,  “the legal stuff” is precisely what Mr. Garcia is talking about when he talks about what  Mr. Fairey did artistically  with the photo and that the effect his artistic transformation of the photo had.  That Fairey so transformed the photo into something that changed the stencil of a generic wire service campaign photo into an iconic image is a huge part of why legally what he did is perfectly legitimate. So, while Mr. Garcia might “not condone people taking things, just because they can, off the Internet,” what Mr. Garcia condones or does not condone is really what is not the “legal stuff.”

Why AP has little chance of success against Shepard Fairey

 Let me explain in greater detail why I not only think Shepard Fairey will prevail in the lawsuit AP has brought against him for copyright infringement, but also why I think it isn’t even a close case. The case, of course, involves Fairey’s poster (pictured on the left), which Fairey created by first stenciling the AP photo wire photo pictured on the right.

As the Stanford Copyright & Fair Use site explains, determining whether a work that appropriates all or part of a copyrighted work is no easy thing:

The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The four factors and my evaluation of their significances in this case are as follows:

(1) The Purpose and Character of Your Use: As the Stanford Fair Use & Copyright site makes clear, this factor turns to s large degree on the following two questions:

(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?(b) Was value added to the original by creating new information, new aesthetics, new insights and understandings?

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.

(2) The Nature of the Copyrighted Work: The AP photo is a generic wire service photo. While photography is, of course, a creative endeavor, some images are more creative than others, and the AP photo of Obama is about as generic as they come. First, it’s an image of the most recognizable face in the world. Second, there is nothing special about it. This generic nature of the work is emphasized by the fact, as I pointed out above, that it took months before someone (not from AP), after scouring the internet on a search for the source of Fairey’s image, finally found the right one. AP had not even known its copyright image was part of a poster that was visible all over the country and in all the media.

(3) The Amount and Substantiality of the Portion Taken: In fact, this might be the factor that counts most seriously against Fairey, but even this factor is, I believe, a close call. As i explained above, about all Fairey’s image ultimately uses is the expression and the tilt of Obama’s head. The very nature of the image is changed from that of a photograph to that of a semi-abstract painting. The background is changed. The color of the tie (a generic tie on a generic suit) is changed. The circular Obama symbol on the suit’s lapel is added. And, of course, the word “HOPE” is added.

(4) The Effect of the Use Upon the Potential Market. This factor, which in the past has been referred to as the most important factor, isn’t even close. Fairey’s image has obviously had NO negative impact on the market for the AP photo. The only possible effect, a likely one, is that it has substantially increased the value of AP’s copyrighted image.

The Stanford Copyright & Fair Use site also points out that “Fair use involves subjective judgments and are often affected by factors such as a judge or jury ’s personal sense of right or wrong.” The fact that Fairey’s image was produced as his contribution to a political campaign would, I believe, weight the case even more heavily in his favor. The courts give great leeway to political speech, which is at the very core of the First Amendment’s values.

ADDENDUM: Brian Ledbetter kindly quotes substantially all of this post and expresses agreement with most of it, but also expresses two reservations: (1) cross-media copying like Fairey’s — whether it be from photograph to painting, painting to statue, photo to Hallmark card-does not necessarily fall under “fair use” exceptions of Copyright law and (2) modern technology makes alterations to photos like the ones Fairey made to the AP photo so easy that we’ll have to begin to believe that “anyone” can create art.

My response, reproduced from the comments to his post:

Cross-media copying is not fair use only to the extent that the result is a “derivative” use. What constitutes a “derivative” use may be as obscure as any other matter on this topic, but it cannot possibly mean any work that is “derived” from a copyrighted work. Every fair use is derived from a copyrighted work.

So what is a “derivative” work? I would submit it is something that exploits at least in part the market created by the original work. Thus, for example, a Snoopy mug would be a derivative work, as would a cover song. I would submit that this mashup, though quite entertaining, is a derivative work in that all it does is exploit the market created by Charles Schulz and OutKast:

The trivia book based on Seinfeld was a derivative use because its targeted market was the audience created by the sitcom. The bio of Salinger that was enjoined was a derivative use because it used such large portions of unpublished Salinger letters that it at least in part was intended to exploit the market for people hungry for anything new by Salinger (he hadn’t published in decades).

But [Brian's} Tom Daschle photo.isn't exploiting any market created by the original. And you know what? The more and more such things get turned out, the less and less they'll have an impact. There's no denying that Fairey's image, while simple, is a powerful one, or at the very least that it resonated as one with a huge portion of the public. I don't think [Brian's] Daschle workup would. And if so, so what? Does that hurt the original photographer? Are we to stifle your creativity to protect some right of the photographer not to have his photograph used in ways he doesn’t want it used? There is no such right. Instead, there’s the First Amendment, which, in the absence of copyright (created to PROMOTE creation) would allow us to use anything.

The fight is on: AP sues Shepard Fairey.

Brian Ledbetter has the news and a comprehensive set of links to various views on a dispute I’d love to see resolved in a court (even the Supreme Court): AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its background, and Obama’s suit jacket and tie to create the poster that became an iconic symbol of the presidential campaign.  I hope Fairey sticks to his guns and fights this out without settling.  I think his poster so profoundly transforms the impact of the image from the photograph that his poster is not an infringement. And AP has been known to assert blatantly silly infringement claims.  Of course, not everybody feels the way I do.  So I’d very much like to see the matter decided, and I suspect Fairey, unlike many of the victims of copyright overclaiming, has the resources to take the case to trial and through appeal.

ADDENDUM: I am not alone in my conviction regarding the tranformative way Fairey’s poster alters the AP photograph.  Submitted to a Candid World Writes:

Part of the law that’s grown up around these simple factors is the doctrine of “transformative” use, whereby a copyrighted work appropriated but utterly transformed in meaning and substance provides the original “artist” with no valid copyright claim. Oddly, to satisfy this doctrine, artistic transformation of an artistic work may not be enough, even if the effect of the transformation is to invert the work’s meaning.  The law requires more than a different perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).¹ But Fairey’s case is a significantly greater reinvention: here, Fairey took an image intended for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obama’s historic candidacy and unique promise. In the process of creatively altering the image from the purely representational to the artistically abstracted, he added meaning and value, and he crossed expressive genres in the process, depriving the AP of any legitimate claim of lost revenue. This may just be over the border of “fair use,” but fair use it is. The AP should back off.

Shepard Fairey, Creator of Iconic Obama Image, Speaks About His Art

How do we promote creativity?

One common theme that runs through my views regarding intellectual property is that there is way too much treatment of intellectual property as the equivalent of real property (that is, land). I can fence off my land and keep everyone off of it. Therefore, too many feel, I can fence off my intellectual property and prevent 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 think the authors who didn’t want their books to be accessible for word searches via the Google Library Project did as well.

My greatest knowledge about intellectual property concerns copyright. The first thing to know is that copyright is a relatively recent legal creation and that tall U.S. copyright law exists by virtue of and within the limits of 27 words in Article 1. Section 8 of the U.S. Constitution:

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

In other words, copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Works that are genuinely creative in their own right but appropriate copyrighted works (Girl Talk and Shepard Fairey, among many others) therefore have a very strong claim to legitimacy as long as they do not exploit the market created by the original work. Indeed, that’s exactly what the fair use doctrine is intended to allow and is beginning to reflect.

My views are shaped to a considerable degree by my belief that all creativity is grounded in previous work, and that the more leeway the law gives to appropriation the more creativity we will have. Of course there are limits. You cannot entirely rob the artist of the financial profits of his work. But using that first artist’s work in an altered way that creates something people want for reasons entirely different than the reasons they wanted the original work does not rob the first artist of the fruits of his labor. Rather, it allows someone else to sprout new fruit.

Apparently, IBM shares this attitude with respect to inventions it could patent. As Securing Innovation reports:

IBM used the occasion of the recent announcement of its 2008 patent record to introduce plans to help stimulate innovation and economic growth. The company plans to increase by 50% — to more than 3,000 — the number of technical inventions it publishes annually instead of seeking patent protection.

Why? According to IBM’s press release:

Publication of technological information is one means to “promote the Progress of Science and useful Arts” the phrase in the U.S. Constitution giving the Congress the power to enact patent laws. Publication protects inventors from allegations of infringement by placing the intellectual property into the body of prior art. Publications also improve patent quality, since they can be cited by patent offices in limiting the scope of patent applications. Publication also helps spur follow-on innovation that ensures dynamic business growth.

While IBM will continue to seek patents and will protect its intellectual property, its planned increase in publishing inventions will focus on those technology areas that will increase the build out of a new, smarter infrastructure. The evolution of IBM’s policy builds on prior efforts to stimulate innovation by pledging not to assert certain patent rights in the area of open source software, health care, education, the environment, and software interoperability.

One artist’s take on issues related to Shepard Fairey

When does appropriation serve creativity? Quite often, in fact.

A commenter to yesterday’s post on Shepard Fairey’s Obama poster has suggested that I don’t believe in copyright because I believe that, even though Fairey created his image by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization within the campaign poster might well be sufficiently transformative to make his work non-infringing fair use.  In fact, I’d go so far as to say I genuinely believe Fairey’s image is a creative work in its own right even though it derives from another work.

In that regard, it’s worth noting that Henry McKervey and Declan Long, in “Makers and Takers: Art and the Appropriation of Ideas, write::

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon’s 24 Hour Psycho, for instance, there is in one sense very little of the artist’s ‘own’ work (Hitchcock’s classic thriller being merely re-played at a radically slowed-down pace) yet Gordon’s intervention makes for a powerful, transformative artistic statement. The question of “knowing originality when you see it” is almost beside the point in cases such as this: artists’ strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in copyright.  It means, rather, that I believe that copyright should serve the only purpose it constitutionally is meant to serve: increased invention and creativity.

And did anyone notice that the John Williams composition played at the inauguration, “Air and Simple Gifts,” borrowed heavily from Aaron Copland’s Appalachian Spring, which itself appropriated a Shaker hymn?

Copying or transforming?

Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.