In these days of easy access to images on the internet and fun digital tools for “riffing” on images, it is very easy for an artist to take an image (copyrighted or otherwise) and play with it, making it into something more. In the case of the famous Obama “Hope” poster of 2008, it is clear that artist Shepard Fairey, made an obscure photograph taken by AP freelance photographer Mannie Garcia into something significantly more. Absent Fairey’s creative digital manipulation of Garcia’s 2006 photograph and his enterprising action, creating posters of the manipulated image to support Obama’s campaign (and the Obama campaign’s use of this image), it is without question that this photograph would have had very little value to the Associated Press, or anyone else.
In my perfect world, a digital artist would credit the photographer for image, go on to do his or her magic with digital tools and then share a predetermined portion of his or her profit (say 10-20%) with the original photographer. In my mind, this kind of an outcome would financially benefit both artists and give further public credit to the creator of the first image.
But that is not the way the copyright laws were written. Rather they grew from a series of concerns that significantly predated the launch of Photoshop in 1990.(2) The drafters of copyright law sculpted the law around the idea of an original work where the creator would exclusively own specific rights to their work for a specific (and long) period of time.(3) This included the right to make or authorize derivative works, works based on the original copyrighted work. The exceptions to this time-limited exclusive ownership includes fair use (used for purposes such as criticism, comment, news reporting, teaching, scholarship or research) of the copyrighted work. (4)
Granted, Fairey did not credit AP/Garcia with authorship or ownership of the original photograph. He clearly should have done that. Had he done that, I believe that the tenor of the case would have/should have been different.(5)
His fate stands as a warning sign to other artists about the dangers of using photographs that are outside the public domain as a basis for artwork. Fairey settled with Associated Press, providing the corporation with an undisclosed amount of money. Then Associated Press sued Urban Outfitters, Nordstrom Inc. and Zumiez Inc., for selling T-shirts with the Obama “HOPE” image, as part of its effort to protect its copyright in the original image. (6) In the end, it appears that Associated Press and not the innovative artist benefited the most from this whole debacle. Moreover, Garcia, the photographer the took the original photograph probably profited little from the use of his photograph. (NB: I have no concrete information on this point, it is just a hunch).
But that is not the end of the story, Fairey’s story has another cautionary tale to tell. Apparently, during the copyright trial, Fairey tried to falsify some records to indicate that his Obama poster design came from another photograph. That led to CRIMINAL charges for Fairey. In order to avoid jail time, he pled guilty to misdemeanor contempt of court charges for destroying documents and fabricating other paperwork. He was sentenced to two years of probation and fined $25,000. (7)
Bottom line: take your own photographs to riff from, or make sure the photographs are in the public domain or get permission!
1. Photograph (AP) from “Shepard Fairey Pleads Guilty Over Obama ‘Hope’ Image” http://artsbeat.blogs.nytimes.com/2012/02/24/shepard-fairey-pleads-guilty-over-obama-hope-image/?_r=0
2. Works published/created in the United States are protected by copyright for the life of the artist/author plus 70 years. Works for hire or created by corporations are protected for 95 years from publication or 120 years from creation, whichever expires first.
3. http://www.creativebloq.com/adobe/history-photoshop-12052724; http://www.easyelements.com/photoshop-history.html.
4. 17 U.S.C. 107. The law includes a four part balancing test to determine whether a use is a “fair use” within the copyright law.
5. But this is just my gut opinion, others argue that attribution without permission will not save an artist from copyright infringement under the fair use doctrine. See discussion in http://fairuse.stanford.edu/overview/fair-use/four-factors/