Street Artist Takes On AP Over Obama Photograph
By now, everyone’s seen the Obama “Hope” image that was used on posters and other campaign paraphernalia during last year’s presidential race. Street artist Shepard Fairey manipulated a pensive photo of now President Barack Obama, turning an ordinary photograph into a red-, white-, and blue-infused work of art. Fairey’s already-iconic image has even inspired a pop-culture sensation through the Obamicon.Me website, which lets you upload your own photo and type in your own descriptor at the bottom of the image (you can even order a poster, T-shirt, mug, or stamp with your “Fairey-ized” likeness through the site).
Problem is, the Associated Press owns the copyright to the original Obama photograph, which was taken back in 2006 by photographer Mannie Garcia. The AP wasn’t happy about this and made public statements that hinted at possible lawsuits against the renegade California artist. The agency was subsequently taken by surprise, however, when Fairey actually filed his own lawsuit this week against the AP, claiming that his work is protected by the Fair Use Statute, which allows limited use of copyrighted material to make original works of art. Fairey and his supporters argue that he visually transformed the original photo to convey a completely new meaning.
Whether Fairey has a valid case in taking this David-versus-Goliath preemptive strike against AP to protect himself remains to be seen (and believe us, he needs all the help he can get in fending off the law—he was just arrested in Boston a few days ago for “defacing property with graffiti”). Posts on several blogs range from siding with the AP (Fairey should have sought permission before using an agency’s intellectual property; to defending Fairey’s creation (Obama always has that look on his face—does AP own that expression?; AP is not suffering any financial loss due to Fahey’s image). What do you think? Was it fair usage on Fairey’s end? Should he have filed suit against AP to protect himself, or was that just going overboard? Tell us your thoughts.
February 17th, 2009 at 4:56 pm
As as Professional Photographer I would not want my works tampered with in anyway or used without my permission or without some compensation. In this case I am hpeful the AP and Mannie Garcia Squash this “Thief” and hang him out to dry. Intelectual property and photo copyrights must be protcted at all cost.
February 17th, 2009 at 7:52 pm
Fairey should be sued. I’m also a professional photographer and I would not want someone to use and alter any one of my photographs without permission or compensation.
Bottom line: this is example of another Obama “Fairey” tale created by someone who stole and altered someone else’s work!
February 17th, 2009 at 8:49 pm
In my 34 years as a Pro Photographer and Cinematographer, I have had several photos and footage of mine stolen, copied, imitated, manipulated and even published and sold globaly without my permission or compensation. I believe many of you would be stunned if you knew some of the guilty parties involved. That being said, all this guy had to do was ask first. Now he has created a problem for himself that is a direct copyright infringment and carries all the weight of legal responsiblities of this crime. However, it will boil down to exactly how he obtained the original image that was used for his ” Artistic Rendition “.
Food for thought: The violators of my work are still on the hook as Copyright and Intellectual Property infringment theft have no statue of limitations.
Final note: The photographer involved here may best benefit from the publicity of this infringment.
February 18th, 2009 at 11:56 am
I have also spent the last 35 years as a freelance professional photographer. I hold a degree from RISD and during my education I remember a case where an illustrator used a photo without permission of Jimmy Carter and that drawing ended up on the cover of Newsweek. He was sued by the photographer of the original image and of course the holder of the copyright won and the illustrator lost. There is no difference in the case of Obama. It’s cut and dried. Copyright is based on similarities not differences and the illustration is a clear copy of the photographer’s copyrighted image. The photographer must be compensated, although in this case unfortunatly it’s the AP, but it’s still true. I would hope (lol) the AP compensates the photographer when the case is settled.
March 3rd, 2009 at 12:20 pm
Dear Jennifer et als,
Correction: the copyright ownership is unclear.
First, Garcia claims he never agreed to relinquish copyright to the AP while working as a freelance photographer. Garcia and the AP are in dispute. If the AP cannot prove ownership, their argument against Fairey is moot.
Second, the AP has admitted that they have no intention of compensating Garcia if they should win this case. They are operating in their own self interest, not on behalf of photographers.
Third, since Fairey has apparently received no monetary compensation for the poster, it will be difficult for the AP to receive any compensation if they win.
Fourth, the AP must prove harm. One can argue that the vast public attention has actually served to benefit the both the AP and Garcia.
Last, the knee-jerk reaction from all of us photographers is to regard Fairey as the enemy. However, this case is much more nuanced then it appears on the surface. At stake is the ability for the AP and other businesses to claim the copyrights of photography and artwork by freelancers who choose not to relinquish their copyright ownership. I urge everyone to look at the facts of this case before rendering judgment. Go to NPR and read transcripts of the Fairey and Garcia interviews. Be informed. before working against our collective interests.
March 10th, 2009 at 4:59 pm
As a pro photographer and former graphic artist, I too feel that the artist should have asked permission to use the photo. As an artist he should have been able to create an image of Obama without copying from a photograph. But that’s how a lot of graphic artists work these days. Unfortunately, digital technology has makes it easy for people who don’t have much raw talent to copy and manipulate other peoples work.
March 24th, 2009 at 5:36 pm
I, like many others who have an opinion on this case, am a professional photographer and have worked both as a staff photographer and a freelancer. I now own a studio and face an every day struggle just to keep my work from being copied at the discount store/drug store photo counters. I can’t imagine what would make an artist think it is acceptable for him to copy or use the work of another without permission - for any purpose. The AP or Garcia, depending on who owns the copyright, should be compensated.
March 24th, 2009 at 5:47 pm
I’m just wondering - and excuse my stupidity here - has Fairey made any money from the Obama image?? if he has - then I agree he should pay something to the AP. However, if he just inspired everyone to use that look - where does anyone expect him to get money to pay for this and why should he??? If anything it is getting publicity out there for free to them and if he’s not making any money out of it, where’s the loss???
March 25th, 2009 at 9:27 pm
Amy & Mister O:
It doesn’t matter if this thief in artist’s clothing made a dime. Infringement is infringement. Go to the opening of a movie, shoot it with your digivideocam, and show it to your friends without charging them a dime and let’s see if MGM tells you it’s okay since you didn’t make any money.
This guy is a real piece of work. Just a few years ago, he had someone do the same thing to him and he made a really big deal about it. Just google this loser and you’ll see he’s a charlaton.
Here’s the fact, plain and simple: when it’s created, it’s copyrighted, and your work is protected. Having some artist-wannabe make a minor change to it and trying to pass it off as a “new intrepretation” don’t cut it under the law. It’s theft–he’s a crook.
March 26th, 2009 at 2:04 pm
the point here is not whether he’s a thief or not but rather whether he broke the law and the fair usage law and copyright laws are based on whether or not you will make money off of someone else’s work OR cause them to lose income from your work as a result, as in your example of the movie theater. You’re basically stealing their income by showing other people the movie without paying. In this case, he didn’t cause anyone any harm and he didn’t make any money. Regardless of his past actions, if you’re going to judge this guy, you have to judge him fairly by use of the evidence, not judge him by your personal rage. I know you’ve all had your work stolen in some way or other and you all feel pissed off at that but really - what if every owner of every building you’ve taken pictures of came out and started suing you for using the image of their property? or what if I shoot something and then sue everyone who shoots using my work as inspiration?? where do you draw the line?
Like I said - if there had been money made by him, I would make him pay it up. If he had cause a loss to them, I punish him some way. but like Amy stated, the copyright isn’t even clear here, so lets not punish the little guy here and let the big guy get away with a double crime. YOU should be more concerned about what the dispute between the AP and Garcia is.
March 26th, 2009 at 2:09 pm
Pardon my terrible grammar and lack of punctuation on that last one - I should be ashamed! lol -
by the way Steve - no hatred from me to you - just constructive criticism. I’m a photographer and graphic artist myself. I just think if you want to make a case against someone, make it solid.
March 31st, 2009 at 2:52 pm
It seems to me that Fairey’s art substantially modifies the original photo making it his own. As for the pre-emptive lawsuit, I feel our society is far too prone to litigation. BTW, I am also a professional photographer and own an art gallery.
April 2nd, 2009 at 11:15 am
According the the US Copy Right Office:
“Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another’s work, no matter how much you change it, unless you have the owner’s consent.”
http://www.copyright.gov/help/faq/faq-fairuse.html
Unfortunately in this case the artist is wrong. He used it without permission. …And one does not need to profit from the copy to be penalized. Copyright laws provide for statutory penalties of up to $150,000 per infringement.
December 2nd, 2009 at 10:01 am
As an amateur photographer, I’ll go for our law about plagiarism and copy right law because using other’s writings or photographs (in Journalism Law) is a BIG NO NO!
January 12th, 2010 at 8:31 pm
That ’s great ! thank for info.