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The Associated Press v. Shepard Fairey

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Saying that the photograph by Mannie Garcia, working with the AP, is “alledgedly” an infringement when it was used as the basis for Shepard Fairey’s now famous posters of Barack Obama, is like saying (prior to the civil verdict) OJ Simpson alledgedly killed Nicole. Yes, we must say “alledgedly” only because a court of law has not issued a judgement, and, so be it. Yes, I will concede that we reported and wrote about the issue and referenced another photographer as the photographer, however, as Fairey has been clear that the basis for his piece was a photograph, unless it was a photograph he took, or one which he had a license to create a derivitive work from, he isn’t alledgedly anything. He is infringing.

How?
(Continued after the Jump)

Fairey claims “Fair use”, however, a fair use claim is an ‘affirmative defense‘ that can overcome an infringement claim, not an assertion that the use didn’t violate copyright. So, let’s be clear – Fairey DID infringe. Whether the AP or Garcia is entitled to any revenue, or an injunction is the question on the table.

On the injunction question – certainly, the AP makes every effort to maintain a neutrality on a for/against stance on Obama. So, the use of an AP image to promote Obama diminishes that effort. In point-of-fact, it is highly unlikely that the AP would have allowed their image to be used in a commercial manner such as this, because it could give the appearance of an endorsement, so there is a clear case for an injunction.

“Ahh, come on, it’s just for a poster, there’s no appearance of an endorsement”, some might say. Ok, let’s step back from all the blind-faith support of our new President, and look at the other side – the side of McCain/Palin. When background music from the band Heart was used at campaign stops to entertain (and warm up?) the crowds, Heart objected (People – Heart to Sarah Palin: Quit Playing ‘Barracuda’, 9/5/08), and I agree that McCain/Palin shouldn’t have done that. McCain in February of 08 caught heat for other songs, and so too did Bush during his campaigns. All were “just for the assembled crowds to hear”, but there was an implied endorsement. So again, the AP should be allowed to obtain an injunction on this.

What about additional revenue?

You bet. Fairey based his image on this photo, and without it, he would be forced to close his eyes, and THINK of an amalgamation of all of the times he’s seen Obama, and draw from that. Or, perhaps, a recollection from meeting Obama. This poster is a derivative work. Yes, Fairey’s work has significant originality, and thus, is copyrightable in its’ own right, however, it is, in fact, based upon a photograph that, in and of itself, is copyrightable. Again, Fairey admits it is based on a photograph. In fact, according to Mannie’s website – MannieGarcia.com:
The Danziger Gallery which represents the artistic works of Mr. Fairey contacted me on the 21st of January 2009 to inform me that my photograph was in fact the basis for the artwork that has become better known now as the “HOPE” and “PROGRESS” posters.
Ok, so whose photograph is no longer in question.

So, why isn’t Garcia filing claim? Well, perhaps he is not the copyright holder. Since he was not an employee of the AP, he likely signed the AP contract. If he did, then he would have transferred copyright to the AP. If he did not, then he’s in a unique position, because there are supposed to be only two types of photographers – staff, or freelance. Which one is it? Is it possible there’s a third category? A temporary hire who is neither an employee, or a freelancer? If so, how would rights be handled? Absent a contract, the rights would likely go to Garcia. To comment on the possibility of freelance photographers and copyright, In the latest version, which we wrote about here, is similar to the previous one that existed in 2006. However, here’s the comparable language from Section 4, Term 4.1 as it pertains to rights/Copyright:
“Freelance Photographer agrees that the Assignment Photos have been commissioned by AP, and each of the Assignment Photos is a “work for hire” under the Copyright Act; and to the extent that the Assignment Photos are not deemed to be a “work for hire” under the Copyright Act by a court of competent jurisdiction, Freelance Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the Assignment Photos) . Freelance Photographer agrees to assist AP, at no further cost to AP, in perfecting any such assignment, including executing any documents within a reasonable time period after AP provides them to Freelance Photographer.”
So, if he did sign the AP contract, then the AP is the copyright holder, and thus the AP has the right to bring suit, seek monies, or preclude the use. If he did not, then Garcia owns the copyright, and Garcia has the right to make the claim.

Why bring this claim? Aren’t we supposed to be united as one under our new President, with a message of openness and Perestroika? Because, if the AP owns the copyright, then they must be consistent and vigilant, lest this be example #1 in some other infringers’ defense down the line. What if the tag line wasn’t positive? Instead of “HOPE” or “PROGRESS”, what if it was “VILLIAN” or “THIEF”? Heck, the red and blue-green color scheme could represent danger, or something. Then, how would you feel about the AP stopping this? Would your opinion about the use of the photo change if it was a message critical of Obama instead of positive?

The copyright holder, whether Garcia or the AP, certainly has a claim. The AP certainly has the where-with-all to back it up. The artists’ gallery contacted Garcia likely thinking that he would just be so honored it was his photo that he’d give them a retroactive license, and everything would be ok. Instead, either the AP or Garcia is the owner, and they are defending their rights, as they should. Fairey made money on this art, why shouldn’t the AP and/or Garcia?

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Originally published on Photo Business News & Forum on February 4, 2009. Comments are closed; this post is part of the archive.

21 thoughts on “The Associated Press v. Shepard Fairey”

  1. I hope that the AP sues and wins to protect copyright for those of us are who aren’t silly or stupid enough to sign the AP contract.

    Hey Manny, what does it feel like to be the proud owner of a nice AP dayrate? Just think about what you could have gotten if your didn’t do the work for hire for the AP.
  2. And for the top comment about Mannie — CORRECT SPELLING BY THE WAY — John needs to check his facts, was not under contract in any way shape or form

    SM
  3. I take issue with this statement:

    “Fairey claims “Fair use”, however, a fair use claim is an ‘affirmative defense’ that can overcome an infringement claim, not an assertion that the use didn’t violate copyright. So, let’s be clear – Fairey DID infringe.”

    On the contrary, fair use is a non-infringing use. See 17 USC 107, which states:

    “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright.”

    For the sake of brevity, I omitted the examples of fair use in the section. However, as you can see, fair use of a copyrighted work is non-infringing on the copyright.

    The reason it does not infringe is because the author’s rights in the work is not absolute. An author is not entitled to exclusive use of the work for any purpose whatsoever. His or her rights are limited by the exclusive grant of rights set forth in Sections 106 and 106A as referenced in the fair use statute. Fair use under Section 107 is a type of use that is outside the scope of the author’s rights to the work.

    If Fairey’s use is “fair use” under US law, then he did not infringe on the copyright holder’s rights in the original work. Of course, I’m not weighing in to say whether it is fair use or not. We’ll leave the fair use factors for another day’s consideration.
  5. Interesting question all around. And — Not to confuse matters further, but —

    How would you say this issue relates to the work of Richard Prince and his photographs of other people’s commercial photographs of the Marlboro man (among others).

    How does Prince get away with his photos and earn 1 million at auction, as compared to the tighter interpretation of copyright and fair use proposed by this blog as applied to Shepard Fairey’s poster.

    cheers — jk
  6. Greetings —

    We’ve spoken with Manny, and posted a piece discussing this with him on the blog too. It clears up some misconceptions, and, as I note here – it was not a Reuters photo, as initially believed.

    As to the fair use issue noted above, assertions have been made by others – and I am in agreement with them – that fair use is an affirmative defense, and, I should have made it clear in the post – I am not a lawyer.

    As to Richard Prince – I’ll leave it to the esteemed Sam Abell to discuss Richard Prince. Watch his video over on PDN here. Further, Prince is being sued by others since that video has been made (read here, so, he may find himself in some hot water after all.
  7. Great to see this hit the mainstream news. Just yesterday a search of Fairey’s infringement brought up articles by Brian Sherwin for Myartspace Blog and Mark Vallen’s infamous critique of Fairey and not much else. The AP story is on the front page of Yahoo! and I think it took a member of the mainstream press to be infringed to accomplish that which is kind of sad. Do check out the Myartspace Blog articles on Shepard Fairey and the Mark Vallen critique as well. Good reads.
  9. I am not surprised people don’t understand the difference between a ‘right’ and a ‘defense’.

    Fairey’s actions are only ‘fair use’ when a judge has said they are. Until then ‘fair use’ is just a defence that can be used to justify the infringement. Using the defense does not automatically grant you the ‘right’.
  10. Thanks for the links to Abell on Prince, and, as people have mentioned elsewhere in this discussion, the work of Warhol is obviously connected to the argument.

    I am curious to see how this issue becomes “settled law” since so much of digital visual art is about to follow the same path as digital music. Re-mixes of, say, Hitchcock movies, may soon become the hip hop films of the 21st Century.

    It’s all the same question, and rappers were ultimately forced to pay for using pop melodies. But visual art seems a bit more complicated.

    Will I have to pay one day to photograph the Empire State Building, or a commercial billboard, or a stranger on Broadway? Will a painter need to pay to use the same building in a canvas?

    As photographers we may want Fairey to lose this argument, but the result may be even tighter corporate control over what we can frame in our lenses. Note the new White House rules on protecting the Obama “brand”.

    In the long run, if AP photos are ubiquitous now, and part of our common visual landscape, are they really any different from soup cans?

    cheers — jk
  11. Fairey’s Obama poster strikes me as sufficiently different from the photo. There is certainly a resemblance, but they are far from identical.

    To the extent that some elements of the photo are duplicated in the poster, it isn’t clear that Obama’s facial expression is unique enough to give the photographer the right to copyright all subsequent renderings of it. Can one, by taking a photo of a person, have copyright over all subsequent depictions of that person from that angle or with a particular expression or posture?

    Moreover, the poster might constitute fair use. The fair use factors include:
    1. the purpose and character of the use
    2. the nature of the copyrighted work
    3. the amount and substantiality of the portion taken, and
    4. the effect of the use upon the potential market

    The poster isn’t a direct copy of the image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo. The AP seems to be attempting to be money-grubbing here with this rather petty copyright claim.

    But copyright law is suffering from a bit of delirium these days, so it’s hard to know what’s up or down or fair use anymore.
  12. No doubt this one is going to be interesting to watch going forward.
    Another curiosity, win or lose, is how this will linger in the cultural memory. Will Mannie’s name ever connect with the image like Fairey’s has? Or will he be the next Alberto Corda, the nearly forgotten photographer who shot the iconic image of Che Guevara that has been plastered on every avant garde renegade bauble over the last several decades?
  13. Having seen Mannie’s picture, I would not weep if it were forgotten to the dustbin of history (save among some copyright hacks). The only thing that makes the picture worth mentioning is its use as a tool for creation of Fairey’s artwork. This is similar to Duchamp’s fountain in that it could have utilized most other urinals equally well.

    On the other hand, Korda’s picture has genuine value as it clearly stands apart from other pictures of Che.
    http://en.wikipedia.org/wiki/Che_Guevara_(photo)
  14. The April 2009 ART NEWS includes a comment by Sokolowski, Director of the Warhol Museum, saying this use of a photo is similar to Andy’s
    Marilyn prints. He forgot to mention that Andy was sued and lost regarding the copyrighted flower photo he used without permission!!! This use is an infringement Fair use does not include making $$. Nrma Martin
  15. I think people should be critical of Shep Fairey. I like the response this guy made to Sheps AP response. I agree with him that if Obey Giant Art Inc. wins its case again the AP it will open the doors for other companies that want to use photographers or any other art images. People need to stop painting this case out as being just a big mean media source vs. a little artist. The case involves Fairey AND Obey Giant Art Inc.! A company! And Fairey is by no means a poor artist even before the Obama poster. And it is very true that Huffington Post is not posting comments that point out these facts! http://www.myartspace.com/blog/2009/03/my-response-to-shepard-fairey.html
  17. (part 1) Hi! Wrote this reply to a piece in the LA Times about the Judge allowing the switch of Fairey’s lawyers on Nov. 10th, sorry I’m out of time to write something specific to this page but am hoping those of you here may still find value in some of the other topics in here, regarding Orphan Works and how it can potentially affect us as creative people…. I am having to post this anonymously because certain arts unions/organizations have begun suing individual whistleblowers under false claims of “defamation”, which is a violation of anti-SLAPP and free speech laws but causes irreparable harm to the individual while fighting it in court. Hope you can understand the reasoning behind this for the time being. (Should you wish to look it up, that other arts union/organizations alleged defamation case is being brought in the Southern District of New York/State Court) and I am not a party to it) The original LA Times article is here: http://latimesblogs.latimes.com/culturemonster/2009/11/judge-rules-shepard-fairey-can-switch-lawyers-in-ap-case.html — And here are my responses, which I am including here because some of the Orphan Works and Fair Use issues as related to Congress’s looking to pass a law that would harm the rights holders of visual work (photographers, artists, filmmakers, etc.) and which may therefore be of some interest to the readers here, thank you for considering it! — FWD: I was at the hearing. While the Judge may have denied the AP’s request that he not be allowed to switch lawyers, it opened up a better avenue for the AP legal team. While Falzone was actively the attorney for Fairey, he would be able to assert attorney-client privilege on essential parts of legal discovery in the case and potentially obstruct the fact-finding purpose of discovery processes allowed by the courts. Now that Falzone is no longer the attorney, and there is no attorney-client privilege, or rather, Falzone can now be deposed as a witness on certain limited specific aspects of how the evidence came to be falsified and at which point Falzone was aware of this – which likely would be serious violation of the attorney’s Professional Rules of Conduct. Generally an attorney has a serious professional duty to investigate the merits of a lawsuit BEFORE bringing that lawsuit (to avoid frivolous or malicious claims), and if Falzone knowingly sued to use this as a “test case” to expand Fair Use rights on behalf of his Fair Use Project at Stanford, based on false evidence, this is pretty serious stuff. There seems to be an agenda to undermine our existing copyright law by expanding “fair use” claims behind this. Fairey lives where, in Los Angeles? Falzone and his 5 or 6 other lawyers working on the case from the Stanford Fair Use Project (what, 7 hours away near SF), set out to bring a case across the country in NYC? Why not hire a NY lawyer if the case must be brought in NY Federal court (one must sue the defendant, the AP, in their jurisdiction which is NY)? What plaintiff (Fairey) would reasonably incur the MASSIVE extra expenses of 5 or 6 lawyers from the west coast to travel to NY for each and every hearing? Lawyers will occasionally bring “pro bono” or volunteer cases. So if the Fair Use Project and its 5 or 6 lawyers were bankrolling Fairey’s entire lawsuit against the AP, with the intention of expanding the definition of “fair use” by trying to use this as a “test case” to set new legal precedent for future derivative works to no longer be considered copyright infringements…well, what motive would be
  18. (part two) worth it to this Fair Use Project to spend 5 or 6 attorneys’ time (several hundred dollars an hour each, plus travel time and expenses to NY) in exchange for this massive outlay of their own resources? it would appear that they were motivated to bring this “test case” to try and set legal precedent on what level of MINIMAL change to a photographic image into a traced collaged poster can be considered “transformative” use and still be considered “Fair Use.” Sure, to be fair, it’s been a grey area for years, as to how much of someone else’s copyrighted work you are allowed to copy without being liable for copyright infringement. Fairey falsified evidence to claim that the source photo was very different from his final image, except that the AP found forensic/computer data showing that Fairey had deleted the real source files. They contend that he used almost in its entirety, the other image (without Clooney) and indeed, there has been a Photoshop study done showing the images match almost EXACTLY, with the only variations being a slight curve of line here or sectioning of color there. Otherwise, it is a TRACING of the source copyrighted photo, in nearly 100% of its entirety. The source photo was rotated approximately 5.5 to 7.5 degrees and other than that the image is an exact overlay, with the exception of the hand tracing curving the line slightly differently. Even if we talk in percentages, even if all the collage elements and colors added later (is “blue” and “red” as the colors of the American flag really a creative concept?? 🙂 are considered “unique artistic contribution” from Fairey, the traced photo is the dominant portion of the image. It is upwards of 90-98% of the final image that matches the source copyrighted image. Mr. Garcia (the photographer who took the Obama photo) had his attorney there, a very nice man. They contend that though they have their own issues with whether or not Mr. Garcia or the AP own the photo, that they are largely aligned with the AP copyright infringement suit against Fairey and are not going to stand in the way of the AP moving forward to get that resolved. Okay so back to the Fair Use issues. Are you aware that Google and even a major national arts union/organization has been working on funding lobbyists to get a bill passed in Congress that would allow creators’ copyrights to be taken into the public domain against their will? It’s called the Orphan Works bill. Put most simply, despite the cute name, it’s very bad. It was forced through the Senate and passed (even though many of the Senators didn’t even know that it had been passed in their names, through a controversial process called “hotlining” in the Senate, where if a Senator doesn’t object within 15 minutes, someone automatically votes for it in the Senator’s name…even if he didn’t respond within 15 minutes(!). The Senate passed it, and it was set to go to the House of Representatives next for a vote. Did anyone even know about this? Was it publicized in any real way so that creators (artists, writers, photographers, filmmakers, etc.) and the businesses that rely on the exclusivity of these copyrights could have a chance to object? This would be equivalent of seizing your house by “eminent domain” to build a stadium or a freeway, because the government decides they want your land. Except in this case they would be taking your private intellectual property and turning it over to the public domain, where any copyist could just take it and profit from it without having to ask your permission, give you credit for your work, or share any of whatever profit they make.
  19. The copyrights the LA Times and its writers hold in their unique work would potentially become the public domain once this Orphan Works bill passes. There are things along the way that make the Orphan Works bill misleading…they say that as long as the creators’ name is on the work, that it’s not an “orphan” and not part of the public domain. However, what’s to stop an infringer from just using your work and taking your copyright notice off of it (naming no names of artists who may have done this for certain posters…) and if an infringer orphans your work, the infringer after that could claim innocence since they never knew how to find you. How does this tie back to this issue? According the the AP (let’s verify this, as I’m no fan of theirs either, just interested in the issues here), they say that Fairey has in the past licensed images from them, that he knows the process and how to contact them for usage rights. According to Fairey’s interview (mp3) with the National Portrait Gallery curators, Fairey traced the image onto rubylith and made the poster in an evening, it was published as posters the next day. Working quickly does not make the work less valuable generally (inspiration can come lightning fast 🙂 but in this case, it would seem to justify that Fairey was in a hurry and just didn’t feel he needed to contact the AP for permission to use their image this time around. Then the poster got hugely successful. In his interview, Fairey claims Russell Simmons paid him a LOT of money to create another image like this one (based on the same photo?) for Simmons’ private use. If Fairey made a huge profit from using another’s image, including the over 300,000 posters he claims to have made, the licensed merchandise we see on mint tins and t-shirts everywhere, etc., that profiting use no longer falls under the terms of “Fair Use.” It would seem that a person named Larry Lessig is on a mission to expand Fair Use for the public (a noble thing, in theory), though dangerously at the expense of creators losing their private property. If my facts are straight, Mr. Lessig was formerly at Stanford, now moved to Harvard. Any coincidence that Fairey’s new attorney team is based out of Harvard? The Judge asked Fairey’s new attorneys at the hearing if Larry Lessig was now at Harvard, and Fairey’s new team said yes he is. Maybe just coincidence, but something kinda odd going on here. Why bring in a Boston team to work long-distance in NY state, once again? So what motive could Stanford’s Fair Use Project have here in funding 5 or 6 attorneys to work on this case and fly cross country and the extra expense of that vs. hiring local expert attorneys (I hear the attorneys in NYC aren’t exactly yokels either!) And now that Falzone and the Stanford team have left, what motive could this Harvard-affiliated group have in bringing this “test case” forward to set legal precedent on whether the tracing of anothers’ photo, and using of 90-98% of the other person’s photo in this new
  20. (part four) image that generated LOTS of money for Fairey and his companies…well, what motive could they have here in trying to set legal precedent that tracing someone else’s photo is transformative use? How do these fair use proponents stand to benefit financially here, what if they can use this test case to support the Orphan Works bill going forward in Congress, which then has the potential for massive profits to companies like Google, the national arts union/organization at the same time it takes away the private intellectual property of those among us who actually strive to innovate new work, new thought, new imagery, instead of merely cannibalizing the old? This is a fascinating case. I was shocked to find that sooooo many attorneys are working to defend Fairey’s TRACING of a photo as his own “art”- the move from Stanford to Harvard, where Lessig is now, and neither in the jurisdiction of NYC where the case is actually being heard, seems to point to something else going on behind the scenes. Sure, it’s all very conspiracy theory – haha! But, let’s look at the dots and connect some dots and see where this could be leading. Even if I’m totally off-base here, it seems that there is something unusual going on here with all these lawyers so hot to bring this case forward in the name of expanding “Fair Use” when the current copyright law (feel free to read it at http://www.copyright.gov – search for the sections on Fair Use that have been allowed to the public since the 1970s, the law already allows it! No need to change the copyright law if it’s already allowed! 🙂 The Fair Use section of the 1976 Copyright Law currently in effect already allows educational, not-for-profit (in most case) uses of others’ work without seeking special permission, for the purposes of education, review, and so on. If someone wants to use another’s work without permission, and to them make substantial profit from it – how is that fair use? Would you want your creative work taken away from you in this way? Many of the dots left to connect are still missing, but with the behind the scenes stuff going on in Congress over the Orphan Works bill trying to be forced into law while everyone else is distracted with financial woes….when the forced public domainizing of all these individuals’ private property causes individuals and small businesses to go out of business…unable to generate the tax revenue the government needs to be raising right now for all those bailouts….hmmmmm, right? So not sure how this Fair Use Project and Harvard project is intending to change the law through the courts rather than through legislation, but it may be a way they hope to set precedent to convince Congresspeople coming up. Depending on how interested you are in publicizing these secret copyright wars, you may want to look up your local Representative, and both Senators from your state to call, write or fax them telling them you are concerned about your private property being lost to public domain if they allow the Orphan Works bill to pass, and please ask them as clearly as you can in BIG LETTERS in your letter :), to OPPOSE the Orphan Works bill, since the public has not been allowed to comment nor to object to this controversial proposed change to our 1976 Copyright Law that allows creators to own their own work for their lifetime plus 70-75 years. Phew. Like I EVER thought I’d be writing my Congresspeople…you know? Curious whether anyone else would be interested in keeping an eye on the Fairey case and how it can be possibly connected to the Orphan Works proposed legislation moving through Congress in strange and secretive ways while none of us (who are the owners of our own creative work) are allowed to be made aware of it.
  21. (part five) Consider helping curious folks like me connect the dots on how this might affect you, how there is something being built in the background while we’re not noticing, and this case seems to have some interesting behind the scenes stuff going on. This is not just about the tracing of a photo. I’d love to learn what you can find out too. I’ll keep checking back on this issue, and I look forward to hearing what you think – thanks! — end forward —

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