Fair Use, Copyright and Theft of Idea
Designers and professional art directors know there are plenty of career opportunities to take the easy road to complete jobs. It's littered with Google images, online download sites and image banks where one might find a photograph or illustration suitable for a comprehensive or research material for an illustration. It is much easier to ask permission than to use material illegally. Why risk it when you might get famous in the process and end up surrendering half of all your earnings plus punitive damages due the originator of the work you "borrowed"? My advice is don't even think about it. Jeff Koons makes a very good living selling stuff he calls art; though taking a postcard of a group of dogs shot by professional photographer Art Rogers and shipping it off to Italian artisans to have it reproduced as sculpture is not art. That pseudo art sold 3 sculptures at $367,000 each. Rogers, who owned the rights to the photograph used on the postcard, sued and won. The court found "substantial similarity" and that Koons had easy access to the picture; as a result, the sculpture was judged a copy of Rogers' work. Koons attempted to use Fair Use laws as a defense but lost anyway.
The same battle has entered the courts regarding a poster of Barack Obama; please note that the original photograph is used here with permission. The now famous version of photographer Mannie Garcia's shot of Barack Obama was used by copyist Shepard Fairey to create the HOPE poster. Garcia sold some usage rights to the Associated Press (AP), and they have filed a suit against Fairey. Unless Garcia signed away his rights on a specifically labeled Work for Hire contract, he retains all of the rights to ownership of that photograph. Mr. Fairey contends using that photographer's work constitutes fair use and has filed a countersuit against AP; but he has no grounds to stand on unless permission was granted and rights were transferred. No permission was granted, and soon Fairey must share all of his earnings with Garcia once the lawyers take their cut and the courts decide an issue they should eschew. Couple that attrition with Fairey's demand that his work receive all the protection allowed under authorship and copyright laws granted to a work of art and you have in a nut shell why you must always ask permission to use someone else's work product. Play it safe and do the right thing. Dennis Meyler, a professional photographer and visual artist in his own right, suggests we apply the "Fairey style" as often as we like (on photography we own, naturally) courtesy of Paste Magazine.
It's up to the art community to finally distinguish between expert technique and expert art because if we continue to allow the uneducated lawyers and judges to make these determinations, no telling who will win what based on aberrant precedents set today. Mannie Garcia should prevail in this instance; as it was his capture of the moment, his determination that it was a shot worth having and his action, energy and intellect that determined the work product. All Fairey did was see something good created by someone else and appropriate it.
I have written before about my awe and admiration for a young artist in my freshman year of art college who faithfully reproduced her college ID; and the subsequent lesson I learned from my painting teacher at the time, Dennis Drummond. There is no art involved in photographically transferring an image through mechanical means to the brain, down the arm and onto canvas if one carefully eradicates any influence that journey has on the resultant creative product. That's a person pretending to be a camera; using good technique and completely setting creativity aside. No, Mr. Fairey did not transfer his emotions simply by applying color to Mr. Garcia's image; and neither does the application of the word HOPE. In fact, the addition of the word hope testifies to the work's impotence, as true art must communicate without verbiage. The very act of resisting personal impressions in transferring the image to canvas is the elimination of art from the process; art is, after all, the only effective method of communicating pure human emotion. A photographic reproduction of something, though awesome in example of perfected technique, is not art.
We are such a loose community and into our own thing that we ignore the label of artist applied to those who create no art, like an art director I worked with who meticulously reproduced the Beatles posters in The White Album in pen and ink pointillism. You can act as a camera, but you are not creating art. The only conclusion under the law is your work is not art and does not merit original works protection under the law. Unfortunately, these issues are not decided by artists. They are routinely decided by lawyers and judges; or patrons and aristocracy on boards and panels—none of whom possess the necessary passion or education to distinguish between art and a nicely cobbled pair of shoes. So those of you who are expert artists, step forward and let's hear your voice in support of the issues at hand.
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