Added enormous amount of power to the image takes miles beyond the photo. If there is some content derived from the photo it's pretty miniscule. And in any case a press photo is by default in the public domain

This is certainly no plagiarism. If it was a Photoshopped image that altered the original, perhaps. But, this is an original piece of art using a news photograph of a public figure taken at a public event as inspiration. No doubt, that is how a court would see it.

The time to pursue this would be after it was initially unveiled, potentially with a request for a court order, not many months after the fact.

well, well, since when an artist has to pay or not the right to base his/her work in any existing image ? As far as I know the copyrights of a picture talk about the use of the picture, he's not using the picture in the sense of the copyrights, he is making a piece of art based on a determined pose, it is based. The copyright protects against the use of the picture, no one said anything about the interpretation . It is like asking a paint artist not to make his own interpretation of the David of Michelangelo, because it is Michelangelo's. That sounds really nonsense.

Gustavo Duenas
Creative Director
Left and Right Solutions
Jacksonville - FLorida

it is Associate Press that has an issue. they are claiming copyrights on the photo, not the photographer. as a matter of fact, the photographer has stated that he sees no problem with Shepard Fairey's use of his image.

this is not plagiarism. it is fair use. Shepard Fairey is suing the AP.

Why didn't Fairey contact the AP first? Because he DIDN'T want to.
I understand why some "creatives" are up in arms about this issue because they believe EVERYTHING should be fair use except when it happens to them.
If you read what is going on out there, it seems nothing is copyrightable.
Stealing is amazing because of laziness. There are various rules of thumb about differences in pieces... this work by Fairey doesn't even come close to being OK. A kid could look at both the photo and the art and say, "They're essentially the same."
I think Fairey is a very bright designer with great ideas... this was not one of them.
Doesn't matter what the photographer thinks, he is being paid by the AP.
A phone call or email most likely would have made this a non-issue. Or if Obama had lost it would probably be a non-issue. Fairey took a chance... what a gamble.
Where did this idea of a "press photo" be a property of public domain come from. Can this be cited somewhere authoritative instead of just written?
As to works of art, much of the good stuff is old and in public domain so that doesn't address anything.
I think the court will rule against Fairey if it goes to trial. Let's place our bets creatives.

On Feb. 23, 1945, Associated Press photographer Joe Rosenthal shot his iconic photo of Marines raising the flag on Mount Suribachi on the island of Iwo Jima. It is perhaps the most famous news photo in U.S. history. It has been used as the basis for countless works of art, including the gigantic sculpture near Arlington National Cemetery. My question is, Should every artist who has used this photo as a basis for a work of art pay AP a royalty?

I say no. But in Sheppard Fairey's case, the waters are muddier. Fairey took the actual AP photo or a scan of the photo and altered the file. A sculptor looking at Joe Rosenthal's picture must physically interpret the picture into another medium. Fairey's picture -- the electrons that make up the picture -- came from AP and he merely altered them.

I still come down on Fairey's side. The work is enough of his own that it could be considered fair use -- a reference or a starting point.

One other factor to consider is that AP is facing desperate times financially because newspapers, its main clients, are on the edge of failure. A piece of of the Fairey pie might be tempting, although it's not clear to me if Fairey made much money off of this.

The timing is suspect. You mean the AP just noticed Fairey's poster? In that case I'd be more concerned about the abilities of our news organizations -- rather than some possible IP problem.

Look, if the AP had some substantial basis for complaint (blatantly stolen and/or used with the intent to profit), and wanted to play nice, they might have used this as an opportunity for dialogue about fair use, given the national chord Fairey's work struck. What came out of the art was far bigger than anything the photo could have accomplished on its own. Now they're coming in, way late, like a heavy-handed Grinch. Beyond that it's clear Fairey made it his own, as art, the AP tantrum just, simply looks bad. Sour grapes, and in my opinion, bad PR.

(a) In a discussion about this issue in our office, it was distilled to two words: Andy Warhol.

(b) however, in the future, when utilizing an image of a public figure and in doubt, grab a photo from a press kit or section, or anything from a government source and paid for by tax dollars.

Home: widowsNorphans.com
Office: Adverteria.com

Its obvious that Fairey is a decent designer but, one that is ill informed on copyright law. This example is obviously traced from the underlying photograph which happens to be owned by AP. The photographer probably doesn't own any rights since it was most likely done under the work-for-hire provision of the law. Its a derivative work which is prohibited use.

Fairey's term 'referencing' and his claim of Fair Use are sadly a sign of a prevailing attitude that places our rights as artists and designers at risk. Chances are that if he had contacted AP, they may have granted him use rights for free or a nominal fee. Now he looks like so many other lazy or just uninformed designers who feel that using other artists' work is OK as long as they change a few colors or apply a different style while using the exact placement of shadows, outlines and elemental relationships in the original.

This is not plagiarism. The differences between the images are instantly apparent in the proportional changes to his facial structure. This is art based on a reference. If you are going to argue about it, why not claim that President Obama's face cannot be replicated without permission ....from whom?

Speaking as a lawyer, not a design professional, the key to "fair use" is fairness. Whether and how the alleged infringer is profiting from the derived work is an important consideration. So is whether the derivative work is impacting the original owner's revenue stream from the work.

The first issue is whether there is an infringement at all. Copyright does not protect ideas; . it only protects mode of expression. For example, a photographer's copyright on a photo of a scenic location does not prevent me from going to the same place with my camera and trying to replicate a photo of the same scene, as closely approximating the original photo as possible. That is because copyright does not protect the original photographer's ideas on how to artistically frame the scene, the best type of lighting, etc.,

Thus, I do not believe that there is an copyright violation here, even apart from the Fair Use exception, if the artist who created the poster merely got the idea of how to pose Obama from the photo. On the other hand, if the poster designer used the photo in any mechanical way, such as to trace the image outline, there would be a copyright violation, UNLESS the use came within the fair use doctrine. That determination is made on a case by case business, as is inherent in a standard of "fairness."

IF there was some mechancial or electronic copying involved, I believe that most courts would hold that the use was not fair, in large part because both the photo and the poster were taken for commercial purposes, and because the poster could easily be used in place of the photograph.

To sum up:
1. No copyright infringement if no mechanical or electronic copying.
2. Not within fair use if there was mechanical or electronic copying.

The result would be different, of course, if the original was something that the artist created him or herself. Thus, if the poster had been the original, and another designer created a very similar poster, there could well be copyright infringement even without any mechanical or electronic use of the original to create the derived work.

The infringement issue fails on at least two counts:
1) It's quite presumptuous to think that with thousands of images of Obama, the designer had to rely on this one image. The poster artist has made an amount of design decision and interpretation that dwarfs the work of the photographer: get access, set exposure, frame, click away. There is no interpretive use of light on the photographer's part. Could another photographer take the same shot? Yes. Does the photographer own Obama's face or that angle? If this photo didn't have a resemblance to the photographers work, would we bother to remember it? Is the photo attractive more because it has a newsworthy subject, or because it is so artfully taken? Would we laugh if the photographer had claimed copyright on the particular rendition of the flag in that photo?
2) Unless your image assessment skills top out at determining "animal, mineral or vegetable," you'll see significant differences between the two. In the poster the features are skewed. The poster shows the head as though it were tilted back more, the eyes closer together, and a greater difference between the two eye-to-mouth crease distances. The poster has a much smaller chin, tighter eyes with different catchlights and more curvature in the eyebrows, an asymmetrical mouth, and way-reduced definition of the mouth-to-nose creases. The left-right tilt of the head is different and the shoulders very different. And, did the photographer determine any of the deep indigo monotone poster shadows? No. If this photographer truly prided himself on exacting work, then he shouldn't have a claim against artwork that is so inexact. You can't have it both ways. The good news is that the Betsy Ross Estate is not suing the photographer for copying her flag.

As an illustrator for years, I've been very careful where I get my "inspiration." In the case of the Obama photo and Fairey's artwork, if you cut the photo out it out and run the Photoshop cutout filter on it - and overlap the image and transform it a bit - you see many areas that are too similar to be a coincidence. This is not fair use, it's out and out plagiarism.

1) To use and pass off (the ideas or writings of another) as one's own.
2) To appropriate for use as one's own passages or ideas from (another).

Fairey never claimed the photograph was his own, he used the photo for reference. The final piece is his own artistic interpretation.

This is a very clear cut case of copying . I don't know how the artist can seriously say that it is " fair use " - that's just an insult to our intelligence . I can't believe an artist would try to totally ignore the laws of copyright

castle pictures
http://castlepictures.com

Look hard at the photo and poster again: The only similarities are that Obama is looking up to his left and is wearing a suit and tie. Every other detail is different. If AP's claim is valid, which common sense intimates it is not, every portrait-style depiction of Obama gazing up the left would fall under its claim. The concept of copyright of a pose if absurd. AP is fishing for unmerited profits.

Reading through today's comments from our group - all of us creating unique expressions for a living - I am surprised that so many understand so little about copyright; a law which protects the work that all of us create.

Consider this: you are an Art Director looking through books of photography from various agencies and come across an image of a statue in a park in New Orleans which would be perfect as the master shot for your upcoming movie.

But the photographer's usage fee is more than your budget. So you go to the same park with your camera, shoot your image at the same time of day from the same perspective and position and create the movie's poster using the image that you shot, which you admit was based on the photo you originally saw.

In reading through today's comments, many may well classify this as 'fair use.' Not so, as Warner Brothers - producers of Midnight in the Garden of Evil - found out the hard way when the original photographer sued.

And won.

Copyright is a very hot topic today and should be a concern for all of us involved in the creative business. There should be discussion but all of us with a stake in this game need to bring an understanding of copyright law to that discussion.

If you were the photographer of this Obama image and an artist had admitted taking your work as a reference for his - which is now a flowing revenue stream for him - those whose opinions were 'fair use' today may well change their position.

Gray areas quickly become black-and-white when it's your livelihood on the line.

I'm in the business of creating creative expression - owning an advertising agency for 36 years - and believe that we need copyright law to protect that expression … and all our livelihoods.

Bob Ray
www.bobray.com

It's called "swipping" and copyright law DOES protect against it.

Swiping is exactly what Fairey did, and he readily admits it. So there's no question did he or didn't he.

Copyright law does imply that no one can recreate the likeness of your work, whether it be a photo turned into pop art or pop art turned into a photo. In the 1990s, there was a Rhode Island lawsuit filed by a photographer who had submitted photo comps to a company. The company didn't want to pay the photographer's rates, so asked its inhouse team to recreate the photo comps using their own means. They did, and published the result. The outside photographer's suit claimed they infringed on his "idea," backed up with the comps as proof showing similiarities between his and theirs, and won--trebble damages (I can't remember the amount, but it was in the millions).

The difference, however, between these two cases is that Fairey admitted he used Garcia's photo as reference. But stealing is stealing. If you stole an item off the store shelf, just because you admitted you took it doesn't eliminate the fact that it's still a crime.

Now you may think that there is a difference because the original is a photo and the object of the lawsuit is art. My response is that photography too is an art!

I hope the AP wins the case as it will speak volumes toward protecting the artist in all of us.

In my opinion, Farley's work lifts the referenced photo above and beyond its original medium. This is not a manipulated photo, it's a work of art.

If the image hadn't achieved the degree of success it now enjoys, AP wouldn't have said a word.

This is clearly plagiarism to me - and is to the artist who stole it - whatever spin he tries to put on it.

This is so not plagiarism, it's difficult for me to grok where the pro-AP partisans are coming from. This is a separate piece of art which merely alludes to an image created in a different medium.

Of course, it's no surprise that an organization whose DC Bureau chief is a Karl Rove cohort would go after an Obama-supporting artist. They've lost whatever credibility as a news agency they had long ago, so this action seems par for the course.

Thanks John Hoffman for your legal commentary. It was refreshing to read.

If Garcia scanned Shepard's photo, then used an image editing software application to mechanically alter the image, then he legally (maybe not in someone's artistic opinion) infringed on Shepard's rights.

Ricky

I really like the piece, but this is clearly plagiarism.

thank you This is a very clear cut case of copying . I don't know how the artist can seriously say that it is " fair use " - that's just sohbet an insult to our intelligence . I can't believe an artist would try to totally ignore the laws of copyright