Posts Tagged ‘shepard fairey’

Fairey Admits Falsehood re Source of “Hope” Image; Lawyers Quit

October 17, 2009

The Associate Press reported this morning that lawyers for artist Shepard Fairey, infamous creator of the Obama Hope poster, are withdrawing from representation over admissions that the artist misled them.

Fairey reportedly admitted that he intentionally misrepresented the actual source photograph for the iconic poster at the heart of AP’s copyright infringement suit against him.  The admission affirmed AP’s position that the source was a close up shot of then candidate Obama, rather than a wider shot that included actor George Clooney as Fairey had stated in his complaint against AP.  On Friday papers were filed in federal court, amending the complaint with Fairey’s new position.  At least some of the lawyers involved reportedly intend to seek court permission to withdraw in the near future.  According to the New York Rules of Professional Conduct, lawyers may with draw from representation under certain circumstances that appear to be similar to those described.  (Rule 1.16)

Fairey had presented some interesting arguments, including that of the limited access to images of famous persons as a reason to necessitate a fair use of such press photos. However, the future of Fairey’s case is now unclear.  While this information doesn’t necessarily kill his argument, the new information seems to implicate the third fair-use statutory factor, relating to the amount and substantiality of the image taken.  17 U.S.C. § 107 (3).  Presenting misleading information in a court document is serious–and certainly Fairey’s credibility has been damaged with the admission.

Related info:

Fairey’s complaint against AP

About fair-use, on ArtUntitled.com

§ 107 statutory fair-use factors, on ArtUntitled.com

UPDATE 10/20/09:  AP files a motion to amend its counterclaim against Fairey.

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Now, a Copyright Triangle: Photographer Seeks to Intervene in Fairey-AP Lawsuit

July 15, 2009

Mannie Garcia, the AP photographer who created the image of Barack Obama that eventually resulted in Shepard Fairey’s “Hope” poster, is now asserting his ownership of the copyright in court. Garcia filed a Memorandum of Law supporting a Motion to Intervene in the action between AP and Fairey last week.

Typically, when a work is created in a regular employment situation, the copyright of the work produced at the behest of the employer is owned by that employer.  There are some exceptions to this, depending upon the conditions of the employment.  There may be a contract involved where the photographer, whether as a regular employee or as an independent contractor, gives up all rights to the images created. Garcia has said that he did not make such an assignment of his rights to AP.

In last week’s court filing, Garcia appears to assert that the image was not work made for hire because he was neither a regular employee nor an independent contractor (the later presumably based upon the absence of a contract).

The Garcia memorandum does not directly state a position opposed to that of Fairey’s fair-use argument.  It does, however, reference the profits gained by Fairey in exploiting the image.  This represents a bit of contrast by Garcia, who in earlier days appeared to appreciate Fairey’s use of the image he created, reportedly stating that he was happy about the use.  However, even in his statements of February 2009, Garcia asserted that he was the owner of the copyright.

Copies of the image in question have been sold in a limited edition by a New York art gallery, which may present another conflict over the copyrights, depending upon who the owner is ultimately determined to be.  Garcia registered the copyright of the Obama image, as a prerequisite to a lawsuit, with a filing date of March 17, 2009.

More Resources/References:

Boies Schiller in for Shooter as “Hope” Poster Case Takes New Twist (includes a link to Garcia’s court filing) AmLaw Daily.

Related:  [Art]work for Hire (explained in more detail) ArtUntitled.com.

Shepard Fairey on Fair Use: The Rachel Maddow Interview

March 14, 2009

The artist who is at the center the Obama “Hope” copyright infringement lawsuit, Shepard Fairey, appeared on the Rachel Maddow show last night. Fairey has admitted to utilizing an AP photograph to create his “Hope” image and filed suit for declaratory judgment as the dispute over the unlicensed use of the photo escalated. The Associated Press responded with a counterclaim for infringement earlier this past week.

Responding to questions about the “flaws” in the Associated Press’ infringement argument, Fairey referred to the factors that are considered by courts in copyright infringement cases when a fair-use defense is involved. Fairey stated that,sf_ap_23 in terms of (copying) a photograph like the AP’s Obama image, the new artwork “transforms both the intent and the aesthetics of an image [and] is actually a valuable new piece independent of the original.” He also stated that his work “does not compete with the original market [of the AP photograph].” Fairey also cited “access” to public figures and the public dialogue (commentary) as fair purposes for infringing news service photographs in creating  artwork.

Fairey said that he is fighting against the infringement charge not just for himself, “but for the rights of all artists who make grass roots images about, for, or against leaders that they don’t have access to having personal portrait sittings with or possibly the financial means to license an image in order to make something that makes a comment and speaks to the public.”

It will be interesting to see how much weight Fairey’s “access” and “financial means” arguments will hold weight, and if they do, whether this will serve to weaken the copyrights of news/public interest related imagery.

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Watch the full interview on youtube.

Obama Icon Takes on the Copyright Act

February 10, 2009

The story about the Obama campaign icon artist Shepard Fairey and accusations of copyright infringement by AP has been bouncing around news sites and blogs in the last few days. In an interesting preemptive move, Fairey the creator of the ubiquitous red and blue Obama “Hope” image, filed suit in Manhattan against AP, the apparent owner of the original photograph that Fairey allegedly copied. As the Times reported, Fairey’s suit seeks a declaratory judgment from a Federal court, specifying that his work is not an infringement of AP’s photograph.

Donald R. Winslow of the National Press Photographers writes that Fairey has admitted to finding the AP photo on the web and using it as the basis for his Obama poster. On the surface it seems to be a straight forward case of infringement. However, Fairey’s attorney, Anthony T. Falzone** claims that the artist’s work simply references and transforms the original AP photo. In essence, Fairey claims a fair-use of the photograph.

This situation and others like it represent the collision area of the traditions of art, the structure of the law, and the rights of others. 

Artwork that draws upon the work of others without authorization is sometimes referred to as appropriation art. It is essentially, a horizontal version of the traditional progress of art, where artists draw upon the artwork of the past and build upon it. The main difference between contemporary appropriation art and the traditional process in the history of art is time and copyright laws. Regardless, of one’s position on this issue, it is important to look at all sides, all 3 dimensions of the problem.

 

Mannie Garcia and Shepard Fairey's Obama images

 

 

The Copyright Act specifies that making derivative works is one of the exclusive rights of the copyright holder. “…the owner of a copyright…has the exclusive rights to do and authorize…to prepare derivative works based upon the copyright work.” (17 U.S.C. Section 106, excerpt). As a compliment, arising out of the First Amendment’s free speech provision is the concept of fair-use which serves the purpose of protecting such communication in the context of copyright. The question suggested by Fairey’s suit is whether the Obama poster image is a derivative work, and if it is, whether it is a fair-use of the original photograph. Fairey appears to argue that his Obama image transforms the original photo, and thereby mitigates in favor of a fair-use, rather than just supplanting the copyright owner’s rights.

Fair-use is one defense to copyright infringement. This strategy is expected here if Fairey’s first-round declaratory judgment fails, and assuming that AP files a counter suit of copyright infringement. In a fair-use defense, the court will weigh various factors, such as purpose and character of the use, the amount of the original photograph used, effect on commercial market of the original, and potentially other factors as well. These are not yes or no questions, rather, they are an exercise in balancing. If the factors lean in Fairey’s favor, then he succeeds in the fair-use defense, if not, it then gets more complicated for him. (For more info, see my article on infringement and fair-use on ArtUntitled.com).

In a further twist, the original photo was apparently taken by Mannie Garcia who claims that he still owns the copyright.*  Typically, in work for hire situations the copyright is owned by the employer. Photographers usually work under contract in such a situation and the ownership of the copyrights should be specified in the document. AP said, “Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.” And, Garcia said, “…. I’m not going to fight with them about it.”*  From Mannie Garcia’s statement, it appears that he is not planning to challenge AP’s apparent ownership of the copyright. According to the National Press Photographer’s interview, Garcia is pleased with the Obama poster and (assuming he does in fact own the copyright) has said that he has no intention of seeking payment from Fairey for use of his original image.

A key point in this evolving situation is whether the “Hope” image and its progeny, as socially significant images, will effect the balancing factors and the outcome of a potential Fairey fair-use defense. Arguably, Garcia’s photo was one among many similar such images of Barack Obama on the campaign trail. Fairey’s iconic poster profoundly represents–perhaps helped to inspire–a mass social and political action.

Does social significance translate into a transformative use?  

In this sense, Fairey’s poster has potential to effect more than politics and social action; it has the potential to effect, or further define the copyright law and the legal status of appropriation art.

 

*AP Restates Ownership; Claims Copyright Infringement Of Obama Poster Image

**Artist Sues The A.P. Over Obama Image

 

An UPDATE on this story is here.