Fairey Vs. The AP

A classmate sent me a link to this piece — Shepard Fairey is filing to ask a judge to declare his "HOPE" poster covered under fair use.  The image on which Fairey based his poster was an AP photo taken by Mannie Garcia. Apparently, the Fairey and the AP were in talks regarding a settlement when Fairey's attorney filed. The AP's spokesman is quoted saying, "AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others."

Obviously, the AP believes Fairey's use was not fair, and that Garcia's photo was "misappropriated." I'm certainly an advocate of leniency in determining fair use, but it's not entirely clear to me at a glance whether Fairey's on firm ground here. Check it out:

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Section 107 of the Copyright Act sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

It's the third factor that seems of concern to me — Fairey's image is pretty substantially similar to Garcia's in terms of composition and feeling. His interpretation is basically pushed through Adobe Illustrator's Live Trace & Live Paint tools. These are great tools, and designers use them frequently… but the issue, when starting with an image not your own, is how far you must go before your work becomes substantially different. 

Here's a still from Dario Argento's Tenebre I used in a project last year:

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I used Live Trace and Live Paint — like Fairey — to make the image look like this:

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But ultimately, I situated the image in a very different composition:

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The image from Tenebre,  I'd contend, became part of something else. In Fairey's poster, it might be argued, Garcia's image essentially is the poster itself. Obviously, Fairey tilted the original image's orientation slightly so the President's head appears more strongly upraised, and he posterized and enhanced the palette to exaggerate the theme of red, white, and blue. He also cropped the photo tightly to accentuate the compositional frame. Fairey's version of the image is far bolder than the original. But the ambiguity for me, in terms of the principle at stake, is in the essence of the two works: both are, fundamentally, the same image. Yes, they're treated differently. But both emerge from the same vantage on the same subject, captured by Garcia's camera at a particular moment.

Still, I think Fairey's use is borderline fair. It'll certainly be interesting to see whether the judge grants this. The decision seems likely to hinge on interpretation of the third factor of determining fair use, relating to the substantiality of the portion used in relation to the copyrighted work as a whole. Compositionally, these two works are really very similar, but perhaps this won't be the bottom line. The message Fairey's poster generates and communicates may be seen to substantively differentiate his work from Garcia's. The fact that it generates a particular message is, in itself, noteworthy and significant here — the original image was a piece of photojournalism not intended to convey such a charged political message. 

Copyright must strike a careful balance — it should protect enough to ensure that creators have incentive to generate new works, but no more. It needs to grant other creators and commentators enough leeway to inject new meaning into their surroundings. Increasingly, as media sourcing and distribution is consolidated, courts need to exercise extreme caution against over-interpreting copyright protection. The risk is stagnating culture, depreciating meaning, and encouraging monolithic patterns of message control. Now more than ever do the rights of creators to interpret the world around us need to be protected.

Update

on 2009-03-24 22:05 by Lincoln Hancock

Fairey's spoken out about the case — this in addition to his exclusive interview with Rachel Maddow last week:

"I’m sure a lot of people are wondering about my case with the AP over the Obama HOPE poster. I can’t talk about every aspect of the case, but there are a few things I want to discuss and points I’d like to make.

Most importantly, I am fighting the AP to protect the rights of all artists, especially those with a desire to make art with social commentary. This is about artistic freedom and basic rights of free expression, which need to be available to all, whether they have money and lawyers or not. I created the Obama image as a grassroots tool solely to help Obama get elected president. The image worked due to many complex variables. If I could do it all over again, I would not change anything about the process, because that could change the outcome. I am glad to endure legal headaches if that is the trade-off for Obama being president.

No disrespect was intended to photographer Mannie Garcia, but I did not think (and do not think) I needed permission to make an art piece using a reference photo. From the beginning, I openly acknowledged that my illustration of Obama was based on a reference photograph. But the photograph is just a starting point. The illustration transforms it aesthetically in its stylization and idealization, and the poster has an altogether different purpose than the photograph does. The AP photo I used as a reference, which I found out much later was taken by Mannie Garcia, (which was actually this one, not the one being circulated in the press) was a news photo that showed George Clooney and Barack Obama attending a 2006 panel on the genocide in Darfur. My Obama poster variations of “HOPE” and “PROGRESS” were obviously not intended to report the news. I created them to generate support for Obama; the point was to capture and synthesize the qualities that made him a leader. The point of the poster is to convince and inspire. It’s a political statement. My Obama poster does not compete with the intent of, or the market for the reference photo."

Source: OBEY (via Boing Boing)