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Left: Manny Garcia's 2006 photo for AP. Right: "Hope" by Shepard Fairey
The Associated Press has claimed that the famous "Hope" portrait of President Barack Obama created by Eastsider Shepard Fairey infringes its copyright in a 2006 photo. The AP is seeking credit and compensation, according to, err, the AP.
Fairey has admitted publicly that his image was based on Garcia's. The original photo was taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.
Fairey's legal advisor stated that he believes Fairey's use of the image is protected by the fair use doctrine under copyright law.
It is unclear whether fair use would act as a complete defense to Fairey's use. Although the doctrine tends to favor transformative works for the purpose of political comment and parody, courts have held, as in the case against the artist Jeff Koons for "String of Puppies," Rogers v. Koons, that fair use does not protect artistic copying when there was no clear need to imitate the photo for parody.
The AP and Fairey are reportedly in confidential discussions over the case.
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I'm pretty sure this is going to fall under fair use, since he didn't actually use the image, just based his image on theirs.
I'm also pretty sure the AP can blow me.
I agree. I mean, yeah, it's obviously from the photo, but why is it a big deal? Rappers do things like this all the time!
Campbell's soup didn't sue Andy Warhol. I'm just sayin'.
I do love giving the AP credit when they get it wrong
I can't believe this is an issue. Fairey's piece looks plenty different to me. The AP seems to become less of a respectable organization every year.
Different background, different color tie, different composition. The AP can kiss its own ass. Besides, didn't Warhol and others settle this a few decades ago?
This is a flagrant violation of copyright. Shepard could have just as easily used any other photo, and there were plenty of photographers who would have gladly given permission.
Shepard's poster is awesome, and I love Obama, but this was an unnecessary theft and sets a very, very precedent.
There isn't a single provision in the US Copyright's definition of Fair Use that this falls under.
I meant "bad precedent."
And no, Warhol didn't settle this. He made commentary on consumerism and used actual products to illustrate it.
These were propaganda posters used to promote Obama. He could have easily used any other photo, but Shepard clearly preferred this angle and pose taken at a particular moment that the photographer captured. Changing colors doesn't make too much of a difference.
if this was 100 years ago most of the artists (including picasso) would have gotten their asses sued so much...ditto with john williams.
and be our guest in beauty and the beast is a blatant ripoff of the theme in mahler's 3rd symphony
and there are millions and millions of blatant ripoffs in music/art. this is nothing new. usually its considered a reinterpretation or a tribute to them.
I'm not so sure about all this being flagrant. Sure he used it as the base inspiration, but Obama looking like that is very everyday when his head is turn and he's looking up. Are people going after John Williams for being very inspired by the work of Gustav Mahler and other famous composers?
If the photo was taken 75 years ago, this would be a whole different issue, so comparing Williams to Mahler is a ridiculous, moot argument.
Shepard himself acknowledges he found the pic on the internet, copied it, and added the colors.
I think its an awesome work, seriously. But Shepard didn't have the courtesy to ask the photog or AP for permission to use it. He could have chosen another photo, but he picked this one because of a moment in time captured by the photographer - the angle, the expression. Instead, he stole it.
Considering how often photogs works are taken without permission or proper attribution online, its a shame more people aren't offended this time. And I don't buy that the Obama's part isn't influencing opinions.
"Mo Money Mo Problems" Biggy Smalls
i blame bush.
IMHO, Fairey has a nasty history of making tons of money from other people's art and designs. I don't necessarily think he broke the law here, but he's not a hero and he's not much of an artist. Artist Mark Vallen made a very good case for why Fairey is a charlatan and a thief in ways that, say, the pop artists weren't:
"When Lichtenstein painted Look Mickey, a 1961 oil on canvas portrait of Mickey Mouse and Donald Duck, everyone was cognizant of the artist's source material - they were in on the joke. By contrast, Fairey simply filches artworks and hopes that no one notices - the joke is on you.
"Plagiarism is the deliberate passing off of someone else's work as your own, and Shepard Fairey may be unfamiliar with the term - but not the act. This article is not about the innocent absorption of visual ideas that later materialize unconsciously in an artist's work, we do after all live in a maelstrom of images and we can't help but be affected by them. Nor am I referring to an artist's direct influences - which artist can claim not to have been inspired by techniques or styles employed by others? What I am concerned with is the brazen, intentional copying of already existing artworks created by others - sometimes duplicating the originals without alteration - and then deceiving people by pawning off the counterfeit works as original creations."
I loved the Andre the Giant Has a Posse stickers, as did everyone, but when he took that same guerilla art approach and used it in the nineties to promote Man On the Moon (wheat-pasted posters of Tony Clifton were all over Hollywood, illegally and certainly no longer ars gratia artis), I pretty soon realized he was a huckster and propagandist. I think the only art he cares about is the art of getting rich and famous.
Not only his art, but even his concepts of what to rip-off can in many cases be traced to other people. I saw a great compare/contrast of FUCT magazine designs that wound up being used by Fairey, and of course, who can forget the Wal-Mart controversy when their ripoff of a Fairey skull and crossbones wound up being a direct copy of a Nazi SS emblem? When cornered about it, Fairey's defence was that he was influenced by a biker gang outfit. Sure, biker gangs are cool, but when you directly trace their logo, you might want to research where it came from. We have enough thoughtless, lightweight art in this world.
The Obama "Hope" poster has been a struggle for me, because, yeah, it is iconic, and I know it inspired people to get out the vote. In fact, it's even on my cell phone as we speak. But Fairey is an opportunist, who even with the Obama poster just clings to other people's talents to create more fame for himself.
"IMHO, Fairey has a nasty history of making tons of money from other people's art and designs."
Sounds like sour grapes to me Dan.
Didn't Shepard Fairey donate all the proceeds from this poster and even a lot of his original art to the Obama campaign?
That doesn't sound self seving or selfish to me.
And yea, I agree with Zach, Bingo, and samkim. This is going to be an excercise in great expense, and futility for AP. The problem is Shepard Fairey will have to spend a lot of money to defend himself.
And that sucks!
Actually it sounds like Dan's accurately describing the mountain of criticism Shepard has recieved over the years. He's a derivative T shirt artist who got very lucky with this very, very, very awesome Iconic Obama image that will go down as one of the most memorable images of all time.
That still doesn't make him not a derivative hack. Anyway, my earlier point wasn't to defend Shepard - it's specifically Anti the AP. They're notorious for obscenely over interpreting copyright law. They suck and in this case they're actually very wrong. This is fair use. If they actually win this, then America basically becomes a corprate feudal state. Hooray.
P.S. John Williams' ripping off Mahler shouldn't get him sued, either, but it does make him a crappy composer. Whereas the 1812 Overture, which copies directly a snippet of the Bastillion, is making a deliberate reference and in effect making a sound collage out of a sample, John Williams is trying to be Mahler-esque, but doing only a B plus job.
To use a more recent example, it's one thing to be the Ghetto Boys and gleefully blaspheme the Steve Miller Band by recreating "Gangster of Love" into a porno rap hip-hop song (sexist and crude, yes, but a revisiting that reworks the original into something new). I'd call that art, even if I don't like what they're saying. But P. Diddy rapping over the entire drum track to a Zeppelin song is just lazy, and there is a difference. Same goes with Fairey, who unlike the pop artists has no concept. I may dislike Lichtenstein's usage of comic art to be "trash" (who is he to call them shlock?), but he had a concept and a fresh idea about reworking culture into his own thing. All Fairey has is tracing paper.
You said everything I wanted to say but couldn't write down.
And Fairey is not an Eastsider and he won't be an Eastsider until he sets up his studio east of Downtown.
La Brea divides the Westside from the Eastside, both of which are different from East LA.
Not this shit again. There's the Westside, west of Downtown (wherever you want to draw the line between the Westside, smaller communities, and Downtown, feel free) and the Eastside is across the river from Downtown L.A. Boyle Heights, Lincoln Heights, and East L.A. are the Eastside.
Simply put: If your West-East streets have the W before the street name, you're not in the Eastside. If it has the E before the street name, you might be in the Eastside.
Dude, stop being obtuse. The east side west side has nothing to do with east of downtown - EVERYONE but you agrees that Echo park and Silverlake are (or were) east side.
The westside refers to the west side of los angeles, not the west side of downtown. And that begins around labrea, culturally and geographically. Period. You're wrong, QED.
That said, Silverlake might as well be santa monica now. I'm all for moving the definition of East side to anything east of Alvarado. Also, for the record I live in Boyle Heights, so I'm east side no matter what discussion we're having.
Obtuse, me? Are you kidding? Can you tell me what is the center of the city, if it's not Downtown Los Angeles?
Can someone else please chime in here? I have too much shit to do today to make this guy googlemap los angeles on his own.
If you want be technical and historically accurate, the Eastside/Westside dividing line is Broadway, right smack in the middle of Downtown.
The river was the accepted boundary for years. Now, the river is the accepted boundary for East Los Angeles. La Brea is the boundary for the Eastside and Westside that we currently recognize.
Wait, Shepard is an Eastsider ? ! ?
Oh AP. Let it go. I love you, but you're killing me with this story.
I think AP is going to be disappointed with the eventual ruling. The photo and poster image are just not similar enough to warrant this challenge. If they are deemed similar enough then every artist who paints a landscape or cityscape faces a suit by any photographer to snapped an image of the same scene. Ditto for any artist who paints a portrait of a person already photographed in a similar pose.
Ridiculous!
srsly man, andre the giant should sue.
R.I.P., Andre the Giant... :-(
Obama always has that expression on his face anyway... The best joke I heard about Obama was that he looks like he's posing for his portrait to be on a coin (Daily Show? Colbert?). That's the same expression in the photo. Anyway, it is a tough call because as an artist I can easily see things from Fairey's side as well as the original photog's side. However that photog hasn't spoken out, AP has which makes me skeptical...
Shepard Fairey infringes its copyright in a 2006 photo he will pay up because there was a John Lennon case where some one made a painting of johns photo
lahipster - seriously man, the "I told u I was hardcore" guy was more eleoquent than you. Next time you post something like that, I have two suggestions:
1) why not actually write something that people can read.
2) Try looking up your references before posting, and include links.
See, I just went to google and typed:
"a John Lennon case where someone made a painting of johns photo"
Nothing came up. I'm beting this is because that sentence is fucking idiotic.
I then googled the following phrase:
"John Lennon copyright infringement"
there's lots about how he was sued for lifting melodies from Chuck berry. nothing about a John Lennon case where "someone" made a painting of John's photo.
Stop TWD.
The most similar legal precedent is the Rogers v. Jeff Koons case linked in the article.
Jeff Koons lost a case against the photographer where he made a photo into a 3-d sculpture. Turning the puppies blue did not save Koons.
If all the AP and Manny Garcia want is credit and joint ownership (and approval rights) of future use of the image, it is a fair demand.
No matter who wins this case, the AP has got some big brass ones to bring this case.This represents a massive conflict of interest. The AP spent the past 2 years effectively running a propaganda operation to get Obama elected. If they and the rest of their cohorts in the MSM had maintained their journalistic integrity we would be talking about President Clinton right now and the AP would have no one to sue... or at least no one would care if they did. They have basically created their own case.
It's about money.
So, why can't Shephard turn around and sue these clowns?:
http://obamiconme.pastemagazine.com/
What a sinking ship of a country! Even the most admirable messages/icons get dragged into the muck & mire of American culture.
^^^Shepard
no disrespect
The funny thing is that Fairey has a choice here. He can look at the criticism, realize he's a hack, and do something to legitimize himself; or he can continue to cash in with lazy, vacuous work. After all these years, you'd think he'd even learn how to draw, but nope, maybe he's been too busy looking around for images to steal. At least make them your own, man, it ain't that hard. I am not sure AP has much of a case here, but at the same time, 1) Fairey is stupid to rip off a photo from AP, and 2) it's about time he gets his. I feel like it's akin to Capone getting nabbed on tax evasion.
Free Shepard Fairey:
http://www.facebook.com/group.php?gid=49419783953
or Not:
http://www.facebook.com/group.php?gid=48372859887
this is better:
Free Shepard Fairey
Or Not
We must answer the following riddle: When is a photograph no longer a photograph?
Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.
The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.
There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.
Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.
Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.
The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.
Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other--all remain perfectly distinct and identical to the original.
Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction--but photographic nonetheless.
We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.
http://bulk.resource.org/courts.gov/c/F3/207/207.F3d.1119.98-16061.html