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Fairey owns up
Chris Large, Photographer
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John H. Reid III, Photographer
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 10:37 AM on 10.17.09 |
->> Photographers-1
Poaching bottom feeding artists-0
a big victory for the AP |
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Stephen Brashear, Photographer, Assistant
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Seattle | WA | USA | Posted: 12:46 PM on 10.17.09 |
->> Dave - What is the victory? There is no victory. Fairey confessed to destroying documents/evidence which could screw things up for the case on a technical basis. The case hasn't been decided. It doesn't mean that he will lose the case for copyright infringement and even if he did because of that, it would a small victory, because it really didn't address the issue of fair use. He didn't say he was wrong for using image. It could lead to a settlement. Does that mean victory? Maybe. Not legally at least. If Fairey settles with the AP, it might because neither party really wants to go through with litigation, because for some reason they don't see the value in it, monetarily or otherwise.
And Chris, his fair use/derivative work claim is legitimate. It is not "BS." The argument is whether he changed the work enough from the original. Was Warhol's soup can copyright infringement? (There is a licensing agreement between Warhol's Foundation and Campbell's now, but that doesn't imply or admit infringement and it didn't exist before Warhol's death. It might be an agreement to avoid litigation.) What about Joe Rosenthal's picture from Iwo Jima? Are all those sweatshirts and mugs showing firefighters raising a flag in the exact same pose after 9/11 copyright infringement or is it a derivative work? I'm not sure if the copyright belongs to the AP or Joe Rosenthal, and I don't imagine those artist's paid licensing fee to use Rosenthal's image, though I could be wrong. As an aside, I believe Rosenthal's image is not in the public domain yet, though I think it is getting close. It's not a clear cut case of infringement. It's subjective. It's whether or not he created "sufficient expression over and above the original work." Define sufficient expression? If I go out and make a picture of Half Dome at Yosemite from the same spot Ansel Adams made his famous picture (assuming it is not in the public domain yet), print it up as a color postcards, am I infringing on Adams" copyright? Is this a derivative work? http://www.theslideprojector.com/images/art14/drawingintervention/lhooq1930... Or would it be copyright infringement if the Mona Lisa were created in the U.S. and created within the last 70 years? Did Duchamp change the image enough? Is sufficient expression or did Duchamp not change the work substantially? The mustache is a pair of arcs, small in relation to the the geography of the rest of the images, but some would argue that the image was changed dramatically and substantially by those two small arcs.
Worth reading on the subject is the ASMP's Professional Business Practices in Photography Chapter 9. Stephen Colbert had a bit about it on his show and presented in only a way the Colbert could: http://www.colbertnation.com/the-colbert-report-videos/218732/february-12-2... Yes I know it is Colbert and it is sad state of affairs when I have to point to a comedy show to make a point about copyright infringement, but he and his guests address some of the salient points. That and I take issue with one of the guests statements that photojournalists are not artists or David Ross' definition of an artist, but that's a whole other debate. And for those of you who are worried (you should be, but for other reasons) I get my most of my news and information from places other than the Daily Show and Colbert Report.
While I'm a big fan of copyright. And I try as hard as I can to keep my copyright and keep food on the table, I am also a big fan of the first amendment and I don't think Fairey's use of the Obama picture is a black and white case of copyright infringement. Honestly, if it were my picture, I would like to see some recompense, but at the same time I realize that it might be a futile effort of pursue legal action.
OK. I'll step down from my soap box now. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 6:30 PM on 10.17.09 |
->> Stephen,
Derivative works are assumed to be protected under copyright law. The fact that a work is derivative has nothing to do with Fair Use.
--Mark |
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Paul W Gillespie, Photographer
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Annapolis | MD | USA | Posted: 10:28 PM on 10.17.09 |
| ->> The 9/11 firefighters picture, while looking like the Iwo Jima photo, is in fact from an actual news pic shot by Thomas Franklin from the Bergen Record in NJ. So if anyone was infringed upon, I would think that it would be Franklin or The Record. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 10:51 PM on 10.17.09 |
->> It's been a few years, so my memory might not be correct, but I'm pretty sure that the Franklin image was properly licensed.
--Mark |
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David Harpe, Photographer
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Louisville | KY | USA | Posted: 12:55 AM on 10.18.09 |
->> Fair use is a very grey area. There have been cases far more blatant than this one that have gone either way.
But like so many people who get mixed up in things involving law enforcement, it was deception that ultimately forced him into a plea. If he had been honest and straightforward from the beginning and simply argued it on a fair use basis, he probably would have won.
I think the current system works pretty well. If someone feels they have been ripped off, they take it to court and let a judge or jury decide. |
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Stephen Brashear, Photographer, Assistant
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Seattle | WA | USA | Posted: 2:22 AM on 10.18.09 |
| ->> To clarify, I'm not comparing Rosenthal's picture with Franklin's picture. In Rosenthal's case, I was calling the works that showed up after 9/11, which swapped out the marines for firefighters and appeared on numerous items including mugs and sweatshirts. My point was whether or not it was a derivative work subject to licensing. My point with the Franklin picture was that it mostly likely wasn't licensed in many of the items that it appeared on. I probably shouldn't have included the Franklin photo in the argument or I should've been clearer. Another idea worth pondering is whether or not the drawn renditions of Franklin's picture would be considered derivative work. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 1:16 PM on 10.18.09 |
->> Stephen,
A derivative work is literally that: A work that is "derived" from the original. That is, a new work that includes all or part of the original. Copyright law reserves the right to create derivative works to the original author. A re-user has to get permission to create a derivative work.
Fair use is the right to use the original work, without express permission, for purposes of commentary, education or news reporting. However, Fair Use does not give such uses carte blanche. Generally, such uses have to be ABOUT the work in question -- not simply about the same topic.
Example: If your newspaper is doing a story about the Mediterranean Fruit Fly, it may not grab an image of a Med Fly off of the Internet. But, if the newspaper is doing a story about the work of a specific photographer of insects then it MIGHT be in the clear to use one of the photographer's images.
I use a lot of weasel words in the above because Fair Use is among the most slippery concepts in all of law. It is typically only defined by a judge or jury in an infringement case and that definition rarely applies to any other case.
I can tell you what isn't Fair use, but I can't tell you what is.
--Mark |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 1:26 PM on 10.18.09 |
->> BTW, All of the rumors floating around about there being a minimum amount of a work that can be used and be considered Fair Use are bogus. There is no such safe minimum amount.
--Mark |
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