AP has riled the copyfighters again and the blogs are all over it. This time AP is claiming the copyright and asking for credit and compensation for use of the image artist Shepard Fairey used to build his iconic Obama HOPE poster:
“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement. “AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”
Michael Masnick apparently tipped them off when he wondered last week if the use of the image was infringement:
Shepard Fairey, who admitted that he just grabbed a photo of Obama from Google Images in order to create the photo, but had no idea who had actually taken the photo. Thus, as was pointed out to me, technically, all of those posters were almost certainly violating someone’s copyright…. Apparently, after some research, a photo journalist from Philadelphia named Tom Gralish had tracked down the original photograph — complete with a copyright credit to freelance photographer Mannie Garcia, who was apparently on assignment from the Associated Press in 2006. […]
The good news, of course, is that, in a follow up, Garcia seems perfectly happy that his photo was used, and not at all upset: “I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work.” In fact, he admits he did not even realize that his own photo was the inspiration, though, he says “it always seemed so familiar.” He does admit: “I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.”
Masnick went on to acknowledge the possibility that the AP might actually own the copyright. He says today, “even we thought the AP wouldn’t be so stupid as to actually demand payment for the use of the image… but we were wrong.”
Erick Schonfeld at TechDirt says it’s not at all clear that the AP owns the copyright. Schonfeld points to a Photo Business News and Forum Q&A with Garcia in which he says he was a temporary staffer when he snapped it and never signed an AP contract:
I have never been an AP staff employee, and no, I have never signed an AP contract… The ownership of the copyright is in dispute, as per the AP. It is my understanding that since I was not a staffer, and was not a freelancer, and did not sign any contract, that I am the owner of the copyright, but I am in discussions with the AP over this issue.
Andrew Sullivan calls it shaking down hope. Xeni Jardin has a video interview with Fairey as he found out his poster would be the official inauguration poster. Chal Pivik has the original uncropped photo here. He adds:
Richard Prince and Sherrie Levine are two artists who have navigated the choppy waters of photography appropriation. I remember following this story a few years ago about Prince, searched for it and found there are new developments for him.
And there’s a funny story about Sherrie Levine here. Here’s the funny part:
This finds its pinnacle, perhaps, in the work of Sherrie Levine. She photographs photographs. (Once, when we were walking through the Met, Matt noticed that a Walker Evans’ print looked strange. It turned out that it was a Sherrie Levine photograph of a Walker Evans.)
Kos points us to the case that is most on point here, Campbell v. Acuff-Rose Music, Inc.:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. …[If] the secondary use adds value to the original–if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings–this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.
Emphasis mine. Thomas Hawk points out that even if AP wins it loses:
It’s very unlikely that the AP will get control over this very popular image. Which means that they may end up looking like money grubbing jerks yet again if/when they lose. Even if they win, enough people are probably impressed with the way that Fairey gave all of the money made on the image to the Obama campaign that they’ll still end up looking bad trying to squeeze him.
So what we have is an obviously transformative work by an artist who gave all of the profits away and the photographer of the image claims he holds the copyright and supports the artist. Even if you’re inclined to support AP, how do you justify this? It will certainly be interesting to watch.