Tuesday, January 27, 2009

Lawyers and Law Professionals Weigh-In on Shepard Fairey Copyright Infringement Allegation

A comparison of the Obama photograph taken by Jim Young (bottom) and the Obama photograph taken by Mannie Garcia (top) concerning Shepard Fairey’s ’Hope’.

The issue of Shepard Fairey, Mannie Garcia, and fair use has sparked a debate among the copyright law community online. The debate is centered on a press photo of Obama taken by Mannie Garcia that Shepard Fairey used in order to create his stencil portrait of Obama titled ‘Hope’. The story has caused an outrage among photographers and supporters of copyright protection due to the fact that Shepard Fairey did not ask permission to use Garcia’s photograph and failed to give the photographer credit.

Fairey has stated that he did not know who the photographer of the Obama photograph was and that he found the image randomly online. However, Mannie Garcia claims that the Danziger Gallery, which represents some of Fairey’s art, contacted him on the 21st of January 2009 to inform him that his photograph was in fact the basis for Fairey’s Obama posters. These conflicting reports demand answers. Could it be that Shepard Fairey knew who the owner of the photograph was all along? If so, why did he not reach out to Mannie Garcia? Did he intentionally avoid contacting Mr. Garcia due to monetary reasons?
Did he willfully infringe upon Garcia’s copyright?

From what I’ve read it appears that art law professionals are split on the issue. Peter Friedman, a visiting Professor at the University of Detroit Mercy Law School, has stated, “The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative”. However, Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, has stated that though the photograph is “transformed” to a “sizable extent” the photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.

The Art Law Blog has mentioned that Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.”

Richard Lacayo , writing for TIME, has stated that Mannie Garcia will have difficulty if he changes his mind about taking Shepard Fairey to court. Lacayo stated, “And if he changes his mind about the not-seeking-money part? He might find it hard to make a case in court. In lawsuits over image appropriation, judges commonly try to decide whether an artist's re-use of earlier material is "transformative". If the new image passes that test, the appropriation is protected by the fair use doctrine, which permits limited reproduction of copyrighted material.”. However, Lacayo goes on to say, “the law in this area is vague and outcomes are very unpredictable. That's even the view of Pierre Leval, the federal appeals court judge who first proposed the influential "transformative" standard in a 1990 Harvard Law Review article.”

Based on the comments I’ve read concerning this issue it appears that many individuals in the art and photography community would like Mannie Garcia to take legal action against Shepard Fairey in order to send a clear message to other individuals and corporations who infringe on copyright protected images. Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.

A debate among lawyers and other interested individuals can be found at PrawfsBlawg . Shepard Fairey has yet to comment about the copyright infringement allegation involving Mannie Garcia’s Obama photograph. However, he has stated that the Obama posters, “Belong to everyone”. That said, he has previously threatened to take legal action against individuals who have profited off the posters and artists who have infringed on the posters copyright.

In the past Fairey has stated that artists who question the validity of his work are “jealous” of his success or that they are distracted by “apathy”. Some of those charges have been thrown at me for being critical of Fairey's art. Mr. Fairey, most artists just want to make sure that copyright is acknowledged and that the rights of fellow artists are respected. A businessman such as yourself-- having defended your own copyrights-- should understand that. If you feel that my opinions are wrong you are more than welcome to contact me in order to set the record straight. If you want a gloves off interview… I’m game.

Links of Interest:

Ripped and Altered? What You Need to Know -- Myartspace Blog


Imagine Fair Use -- Myartspace Blog


Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
New York Art Exchange

20 comments:

PWRUIZ said...

How does Fairey manage to obtain any copyright protection for an image when the fundamental source of it (Mannie Garcia's photograph) was misappropriated and remains unacknowledged?? Ridiculous.

Joseph Bolstad said...

The legal experts are split on the issue and it appears your commenters from the previous post were split as well. While some, including yourself, want Fairey to take responsible, others have brought up several reasons why there might not be such a strong case against him (i.e. he sufficiently transformed the image to make it his own).
In the end, it would appear the law on this issue is rather vague, with unpredictable results in court. I find it a bit odd that a work which uses copyrighted imagery as a form of parody or commentary is apparently ok, while a work that is using such imagery without criticizing anything -- like Warhol -- is questionable.
At any rate, this debate is something all artists, especially art students, should pay attention to. Thanks a lot for getting some qualified opinions from the experts for us to read.

Balhatain said...

Joseph, I think we can all agree that if this were to end up in court it would be a fascinating case to observe. The results of the case would no doubt help to define future cases of this nature. It would be groundbreaking.

I stand by my position. I have to agree with some of the comments on the other post-- the fact that Shepard Fairey created stencils using a copy of the photograph does not sound transformative to me. Take away the stencil portrait and you are only left with fields of color and text. Thus, I think the photograph-- the stencil created over the image-- is a vital part of the piece as a whole.It holds the piece together.

I also agree with those who have suggested that the photograph itself is creative to a point. It may not have been created for the purpose of art, but it has a creative spark. Garcia is a professional photographer and is capable of capturing emotion. Many of the photographs I viewed on his site display a certain mood. It takes a trained eye to capture that in a photograph.

Mark said...

If Shepard Fairey is innocent why did he pull his original Obama posters from being spotlighted at the inauguration? Instead he unveiled a new version of the poster. NPR reported on Jan 20th that that the original poster by Fairey is wrapped up in legal issues involving the photograph that Fairey used. The photographer was contacted on Jan 21st by a gallery that represents Fairey. It does not take a strategist to see that they want to nip this story in the butt.

Anonymous said...

YAWN

Balhatain said...

Anon, yawn indeed. *wink*

For da Kings said...

People need to stop hating on Shep. He has done more for urban art than anyone. He is a living legend. If you hate on him you hate on all of us. If you don't respect what we do you can fall off.

Anonymous said...

Shepard Fairey is a spoiled rich kid who never grew up. He is the son of a doctor for crying out loud. He never had it hard and if he lived on the streets it was because of his own choice. He created illegal works knowing that daddy would bail him out of jail. Is that how kids today view rebellion? Back in my day he would have been called a poseur. The guy is more of a poseur than a provocateur if you ask me. He knows his market and creates for it. A legion of young fans who think Hot Topic threads and an Obey shirt make them unique. The big wig art collectors are buying his work up now because this youthful toy market has strengthened the fad. A few years from now he will be another washed up rebel pushing his posters on QVC. If you want to view authentic street art you gotta check out Poster Boy in NYC. Shepard Fairey is a toy.

Anonymous said...

I like the connection you made on the other post about Yosi Sergant, Evolutionary Media Group, and Shepard Fairey. It has made me rethink my opinion of Obama. Grass roots and corporations don't mix. What a scam.

MATTHEW ROSE said...

I have had my images printed out all over the world (from my web site) and I've seen them in people's homes. I've seen other artists appropriate my imagery in their own work. But I'm not bothered. It's not my work if my signature isn't on it. The Fairey-Garcia business is about what? Money? Fame? Clearly Garcia's image alone wasn't a barn burner. W/out Fairey's transformation, there's no poster. What does Garcia want? Credit? Money? A warm handshake? Fairey should give him a hundred signed posters and tell him to sell them on eBay.

MATTHEW ROSE / PARIS, FRANCE

Anonymous said...

You can like Shepard's art and still question his work ethic.

Inbet said...

The legal jargin about transformation has rarely held up in court. What part of the photograph did Fairey transform? It is an exact line copy of the image. Remove the stencilwork and all you have is a color and text. Fairey did not transform the image itself other than using a different medium. Using a different medium still challeges copyright. Fairey would be smart to settle out.

Conservative Punk said...

I think the fair use argument is being clouded by politics. Someone who voted for Barack Obama is not going to cut the poster that helped his campaign into legal shreds. I guess we will see if the transformative art argument holds when the politician involved is a Republican.

Obey Trice said...

Fairey is King.

tim said...

First of all, Mannie Garcia took that photo while working for The Associated Press, so it's not his copyright, it's AP's. So it doesn't matter whether or not he approves; it's up to AP.

That being said, AP is a business venture, a cooperative of hundreds (probably thousands) of news media outlets. AP would probably not have allowed the use, or if it had, it would have charged a pretty penny for the license, likely with all sorts of terms attached. And it would have probably taken quite a bit of time to sort out all of the legal stuff.

So is it fair use? Let's think about it. Fair use is based on a four-prong test in the U.S.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the 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.

1. The use is obviously not commercial, and Fairey is quite adamant about that. It could be argued that it's for political purposes, but only to a certain extent: the re-user didn't intend it to be used as campaign material.
2. The original photo was for news purposes ... in fact, it was taken in April 2006, long before Obama had announced his candidacy.
3. On the one hand, Fairey loses on this one: he used all of Obama's face. But on the other hand, he really didn't: he just used the outlines of his features. Think about this: if you create a vase, then I create a poster that is based on that vase's silhouette, how much of your work did I really take?
4. This is perhaps the most important in our capitalist world. Think of it like this: does the creation of this poster cause AP to lose money? If there someone on this blog can make that connection, I'd be surprised. The uses of the two works are so very different. And, in fact, since Fairey won't allow anyone to make money off of the Hope poster, there is literally no money that is going to him instead of going to AP. AP loses no money.

You don't really sound like you know much about copyright (considering you didn't know that AP owns the copyright, not Garcia), so I wouldn't really expect you to know this, but copyright law doesn't care whether or not the original artist is credited (unless an agreement to use the work requires that the entity using it does that).

Balhatain said...

Tim said, “First of all, Mannie Garcia took that photo while working for The Associated Press, so it's not his copyright, it's AP's. So it doesn't matter whether or not he approves; it's up to AP.”

Not according to what I’ve read. If you go to Mannie Garcia’s website it states that all images on the site are copyrighted with all rights reserved by Mannie Garcia. The image in question is on his site.

Tim said, “AP is a business venture, a cooperative of hundreds (probably thousands) of news media outlets. AP would probably not have allowed the use, or if it had, it would have charged a pretty penny for the license, likely with all sorts of terms attached. And it would have probably taken quite a bit of time to sort out all of the legal stuff.”

Assuming that AP has the copyright-- you are basically saying that it is ok to infringe on AP images in order to avoid paying fees, following terms, and to avoid the time needed to sort out “legal stuff”. That said, I guess you would be ok with people infringing on Obey images since Obey is technically a business venture with dozens, if not hundreds, of business partners. Right?

Tim said, “So is it fair use? Let's think about it. Fair use is based on a four-prong test in the U.S.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”

Seems to me the purpose and character of the use was very commercial. I’ve read that Shepard Fairey sold limited rights to the image to a few clothing lines. I can find the source for that information if you desire. He also did profit personally from some of the posters from what I’ve read.

Tim said, “2. the nature of the copyrighted work;”

Which brings us to the “is it creative?” argument. Mannie Garcia is a professional photographer noted for having a creative flare for what he does. He can take a shot that captures emotion-- Shepard Fairey acknowledges that in his choice of using the image in the first place.

Tim said, “3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and”

It is a stencil portrait… take away the stencil that was created over the image and you are just left with fields of color and text. The outline of Obama, taken from the photograph, is a dominate part of the work itself.

Tim said, “4. the effect of the use upon the potential market for or value of the copyrighted work.”

The effect of the use is obvious. Look at some of the comments surrounding this story. You have people suggesting that Garcia’s photograph is worthless and that Fairey gave it value. In your defense of Fairey’s use of the image you state that whoever has the copyright would have charged fees and so on. No matter how you try to slice it someone was kept away from the pie.

Tim said, “The use is obviously not commercial, and Fairey is quite adamant about that.”

Where have you been?

Tim said, “It could be argued that it's for political purposes, but only to a certain extent: the re-user didn't intend it to be used as campaign material.””

I don’t agree with you. Yosi Sergant, while working for the Obama campaign along with his employer Evolutionary Media Group as media consultants, brought Shepard Fairey into the fold. Fairey redesigned his original poster with direct supervision under the Director of Communications for the Obama campaign. So it seems to me the poster itself was for extreme political purposes and profit-- with every intention of selling.

Tim said, “2. The original photo was for news purposes ... in fact, it was taken in April 2006, long before Obama had announced his candidacy.”

Images for newspapers and other media outlets can be copyrighted. Mannie Garcia is a professional photographer-- that is what he does. The date does not matter. However, I will say that it was taken a year before Shepard Fairey was exposed for infringing on the copyright of the Rene Mederos estate. I wonder if the ‘Cuban Rider’ shirt is highly collectable since being pulled from production?

Tim said, “3. On the one hand, Fairey loses on this one: he used all of Obama's face. But on the other hand, he really didn't: he just used the outlines of his features. Think about this: if you create a vase, then I create a poster that is based on that vase's silhouette, how much of your work did I really take?”

He made a stencil using the photograph. The stencil holds the portrait together. Without Garcia’s photo as a base the portrait would be fields of color. If you made a stencil over a photograph of the vase I created in order to use the silhouette in your image I would say the photograph of the vase is holding your poster together.

Tim said, “4. This is perhaps the most important in our capitalist world. Think of it like this: does the creation of this poster cause AP to lose money? If there someone on this blog can make that connection, I'd be surprised. The uses of the two works are so very different. And, in fact, since Fairey won't allow anyone to make money off of the Hope poster, there is literally no money that is going to him instead of going to AP. AP loses no money.”

Just so you know, Shepard Fairey is not exactly against capitalism. In fact, he has stated that it would be hypocritical for him to be anti-capitalism. If AP owns the copyright I think it obvious, by your implications, that they lost money on the photograph. Again, everything I’ve read suggests that Mannie Garcia still owns the copyright-- so I would say he has lost a lot of money. Looks like Urban Outfitters has made a profit after obtaining rights to use the poster on shirts from Fairey. Profit is profit-- I don’t think it matters how the profit is used once obtained.

Tim said, “You don't really sound like you know much about copyright (considering you didn't know that AP owns the copyright, not Garcia), so I wouldn't really expect you to know this, but copyright law doesn't care whether or not the original artist is credited (unless an agreement to use the work requires that the entity using it does that).”

Again, all signs point to Mannie Garcia as the copyright owner. Credit should be given where credit is due. Don’t you find it odd that Fairey had stated that he did not know who the photographer was-- very odd when you consider that a gallery that represents his work contacted Garcia to inform him that his photograph served as the basis for the poster. They contacted him on the 21st.

Seems to me an agreement did not take place because Fairey avoided it. Kind of like how he avoided an agreement with the Rene Mederos estate because the artist-- who was deceased, apparently Fairey did not know that-- was from Cuba. He was asked about in an interview with Mother Jones shortly after being exposed. He stated, “There's a piece by [Cuban artist] RenĂ© Mederos that I used, thinking, "Well, how would I ever pay this guy anyway because he's in Cuba?" All I really changed about that graphic was I put flowers into the gun and put a peace logo in it. With Castro and Che on horses I was definitely manipulating the original intention, but at the same time, it was a really beautifully done poster and tweaking it for my anti-war agenda was a way to pass that graphic along.”-- passing the graphic off as his own is more like it.

Zara A. said...

There are certain ethical responsibilities any photographer or artist should follow. If borrowing material from someone else, it is completely unethical to take full credit for it even if the photo or the artwork has been modified.
I can't bring up any legal arguments since i'm not too familiar with the field but if a work of art is borrowed, even if its from an internet site, the artist must be notified. If the artist is unknown than the work should not be borrowed without any consequences.

Anonymous said...

Defending Shepard Fairey with the first amendment is just silly. Parts of the US constitution were written so that works of art and science could be protected. The founding fathers understood that if original works are not protected people would not bother to share their creations with the public.

Anonymous said...

I don't think he did anything wrong. If he did the laws need to be changed.

Beagle33 said...

I think we will know the answer to this when Cariou vs. Prince is ruled on. That photographer filed a suit against Richard Prince, Gagosian Gallery, and the publisher who published a book for an exhibit at the gallery. If Cariou wins I doubt galleries would risk their business by exhibiting art by Shepard Fairey or any other artist who has allegedly infringed on copyrights.