Monday, February 09, 2009

A fascinating dispute over ownership

Mannie Garcia/Associated Press

The New York Times tells us that Shepard Fairey, the artist who produced the iconic image of Obama is suing the Associated Press to counter their claim of copyright infringement. Verified is the source photograph that is the basis of the artwork. Providing a further wrinkle, the photographer himself is claiming that under his agreement with the AP, the rights to the photograph are his rather than theirs.

The key issue is whether or not the artist's "treatment" of the source material produced something that is original, or something that is derivative in a way that requires certain permissions that were neither requested nor granted. The initial volleys from the attorneys and experts leave me undecided. For the moment, I'm of the opinion that the artist should have secured the rights to the "image" before he began to sell his "version". For me, the deriving of revenue is the critical factor. I tend to credit any photos I post that are not of my own doing, but I make no money from this blog. I think the instant you receive ad revenue from a blog, your responsibilities are different. You now have a home-based business. You are using other people's material to make money. I would think some level of permission would be necessary. The grey areas here are very grey. More grey than that bow in Aretha's hat. That hat is a good example. It traveled around the world overnight. Are those who used it for entertainment purposes, and derived income (ad revenue) in the course of the delivery of that entertainment, obligated to pay something to someone for the use of that hat? Oy.


Anonymous said...

I feel bound to speak up here -- the actual law about fair use of copyrighted materials, including all the discussion about the trasnformative nature of the work, doesn't realy have to do with whether somebody made money on it. It's one of those parts of the law where what seems like a pretty practical approach really isnt logical or fair. Whether you make money on your blog doesnt change your legal standing. It does, however, affect the likelihood of somebody coming after you seriously. (A hobby blog is likely to get a stern letter or email from a lawyer, at most, in a case of copyright infringement. But Perez Hilton will get more serious treatment. Which is why he always does those doodle on the photos. Ugh.)

The Nolo Press book about copyright has a good section on fair use and so on, although it says nothing about blogs.

Also, Aretha Franklin's hat wasnt stolen in all those photographs. It was an image that was "stolen," not the actual hat -- but the cases of putting the bow on the Washington Monument or the Pope or Uno the beagle are actually the pretty defensible (if anybody knew whose original photo those images were taken from anyway, that is.) This is because they substantially transformed the image into a new work.

I think the AP does not have as good a case as the artist, in this situation, because he took in image and transformed it into something the success of which relied much more on his own contributions -- witness specifically the recent online art movement of imitating his style used in his transformed work, not of imitating the original AP photo.

The AP does have a case, though, and they certainly have a lot more lawyers.

I'm not a lawyer, and I'm sure somebody else could clarify or even correct some of what I wrote. But I know I have the general gist right, from my years of experience in the media. It is indeed fascinating.

Love the blog.

Doralong said...

Intellectual property laws in this country are extremely, extremely convoluted. This case may well have some far reaching effects before it's all said and done. And the the IRS will get involved. OY!

Tate said...

The photographer who took this picture must be very upset. To see an instant in time that he/she captured being retooled and mass marketed for big bucks, without even being credited or politely asked permission by the graphic artist who appropriated it, is infuriating. All of the legal repercussions could have been avoided with a slight attempt at professional courtesy. I am not sure of the legalities in this instance. Warhol was fond of appropriating iconic images in his work as well (Ms. Monroe, for instance), but I am not sure as to how he handled it.

Perhaps a simple communication seeking permission would have sufficed, without entering into the realm of lawyers and copyright law. I am interested in how the courts will decide on this should it get that far.

Tony Adams said...

Dear Anonymous, yours is the sort of input hoped for when I take a stand on something without doing a lot of homework. The grey remains although I'm clinging less to the element of revenue derived. Slightly.

Gavin said...

What came to mind as I have watched this case is the uniqueness of the original. I don't find it special in any way and the likeness of Obama could have been taken from any number of photos and produced the same graphic. The thing that may make the AP photo unique would be the flag background, but that was dropped out, and we are left with a plain photo of the President of which there are probably millions. I think what he did with the photo is significantly different from the original. I suppose I'd feel different if it were my pic!