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.
The Fair Use Project files on behalf of Fairey
Ready to freelance? Whether it's because you were recently laid off or retired; or simply because you finally want to spend your days doing something you love, you'll need more than just computer skills and a degree. There are a multitude of buried mines and knowing in advance what to expect is key to succeeding in the sometimes cutthroat small business climate of today. Start and Run a Creative Services Business is everything I learned over 25+ years of being in the business and a new second edition is just off the press. You'll especially enjoy "9 Sure Signs You're Not Getting Paid" and "Scoundrels and Scalawags, Pirahnahs and Barracudas" which covers all the things even seasoned pros can't see coming. The second edition is updated to include a whole new set of Online Resources useful to any creative professional who is self-employed.
0 TrackBacks
Listed below are links to blogs that reference this entry: Fair Use, Copyright and Theft of Idea.
TrackBack URL for this entry: https://mt.webmediabrands.com/mt-tb.cgi/7461
I liked the article until you called Shepard Fairey a "copyist". The idea of appropriation or borrowing has been a rich part of many artists toolbox. Fairey has enough compositional chops, color craft and street cred to count as an artist, not just a poser like Jeff Koons.
That all being said, I do hope Shepard Fairey does the right thing and amply compensates photographer Mannie Garcia for using his image, IF the courts decide it must be so.
Fairey lost his credibility when he chose the copyist route.
This is an old, old issue. When I was studying art history often what we studied was a famous painting that was an interpretation (copy) of another painting. The examples of this in art history are limitless. Many, many artists copied other artists work, it is and was considered a great way to learn, and sometimes the "copyist" paintings became famous. But were the "copies" somehow less valid than the original? No, and sometimes they were even considered more important works than the original.
I think that often an artist finds inspiration in another artist's work, they see a way to take that original work in a new direction and give it a new interpretation. As an art history student and student of art I think that is perfectly acceptable. I think that being able to interpret the works of others is crucial in the making of art.
I understand that Fairey should have asked for permission before allowing his interpretation to be published. But I also understand that there are fuzzy edges to this issue.
What if architects wanted to own rights to all the photos or images of their buildings? Would that be right? I don't think people would accept that as reasonable.
What if Fairey had taken a photo of Mannie Garcia's Obama photo? Would Fairey have the right to make a new interpretation of a photo he had taken even though it's subject was a photo he had no rights to?
I disagree with the idea that Fairey's work is not art in its own right. It affected me like art. The very first thing I learned art school is that we can't define what art is, as soon as we do we limit ourselves. I would make the argument that Fairey's work is a stronger work than the original photo.
I believe that this issue cuts to the root of our creativity as humans, we need inspiration. Sometimes we are inspired by an image we don't have permission to use. Does that mean we can't make our art with it? To an artist that's like saying you don't have permission to breath the air over here, just that air over there. It might make legal sense, but it doesn't make emotional or creative sense.
Dude, putting words on artworks doesn’t make them non-artworks.
No, but taking a photograph that's owned by someone else and applying a few photoshop effects isn't art, either, dude.
It was a "non-artwork" before and after he applied the word.
It’s true, I think, that the courts will eventually decide this issue (again). Lawyers and judges may be uneducated but they do tend to follow precedent. The precedents are against Shepard Fairey.
Artists, on the other hand, have subjective opinions.
Artist and collector Robert Fusillo points out there’s some legitimacy because of more-or-less accepted use: “...for the last few decades there has been a quite widespread museum legitimized ‘movement’ called Appropriation.”
Mat Gleason, Coagula Art Journal publisher, wrote in the Art-for-a-Change blog, “…at the end of the day the Shepard Fairey experience is to promote the brand of Shepard Fairey as a corporate entity, so I don't consider it art. He is about the furthest thing from art there is.”
@Mary: Why is Fairey an artist and Koons not? Why is Koons a poser and Fairey not?
@Kimberley: I submit there are no fuzzy edges here. Fairey did NOT ask, nor seek permission…his track record of “appropriation” is both long and documented. It’s not a question of breathing the air over here vs breathing the air over there…breathe all you like. Just acknowledge who’s providing the oxygen.
Since everyone gets an opinion, I believe Fairey is a thief. A talented thief.
On a smaller scale, I have found large galleries of my stereograms, many which I have posted in my stereograms gallery on this website, in Photobucket (about 180 images), and Facebook (80 images). And there is a torrent file, 3D Stereograms that contains 105 stereogram images, about 90 of which are mine and all of which were downloaded from a site that does have my permission to display my work. These torrent files can be found in dozens of torrent sites on the web.
Requesting these images and torrent files be removed requires filling out variations of the Digital Millennium Copyright Act, which is time consuming and puts the burden of proof on me to prove the images are mine. Fortunately, most of the images have my copyright on the image.
Photobucket, were it to remove all copyrighted images from its site would probably not have any images at all, has been very helpful and has removed long lists of images almost as fast as I have supplied the links. Facebook, is dragging its feet. It has been more than 10 days since I was notified that I would receive a response very soon. Again this is 80 images, most of which have my copyright on the images, and a long list of links to each infringing image.
By the way, if one wishes to read one of the best books on copyright as affects artists, I highly recommend Mary E. Carter's Electronic Highway Robbery - An artist's guide to copyrights in the digital era.
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. - Quote
To all: Avoid making a poor judgment here that fails to give credence to other forms of art. In this same fashion all musicians who are DJ's involved in remixing even the most minor, single note/shifts, of segments are failures needing punishment.
The question needs be: Was new value created through the "new" art? Yes, in which case the appropriation is in no way, shape, nor form a reason for "damages". The original photograph was good, but did it, nay could it ever have captured inspiration in the same way as the later rework managed? We don't know, but its safe to assume that no - it would not have been as effective.
Again, a nugget:
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. - Quote
Failure in scope of logic is amazing in its depth. Continuing this no value is ever created beyond the first time someone drew a picture. The first stick-figure was the only one that mattered. Is then all other art in need of reparation against the cave-man? In this vein you stake that the only "true" value comes from the origin of the idea.
Sad as it is to say, this very notion, from a place of supposed interest in the field, is the same problem which is poised to destroy a new era. Do not destroy creation, value is added daily. Thought, no matter how minor, is value.
It's poor judgment that assumes photography is art. It is not; and you can plant a camera and have 5 different people walk by to click the button. They are not artists and the work product is not art. The DJ analogy doesn't work here because it is the theft that is criminal, not the work product. Punishment is required for the thief who opted not to ask permission.
Appropriation without permission is always grounds for damages when you violate copyright law. My "nuggets" are based on Fairey's specific and obvious theft of work product from Garcia, and while "thought, no matter how minor, is value" may work in your field, it does not fly in mine, especially when a specific thought executed in a copyrighted image is used to generate wealth. By all means, think your value added thoughts, but don't steal to profit from them. Yes, it's easy to appropriate in our "new era", but that doesn't mean appropriating creative product used without permission is legal. Sorry for the inconvenience when it's so easy to steal, but we intend to continue reserving all rights.
Fairey forgot the basic, number 1 rule they teach you in design school. If you are going to borrow an idea, make sure to make it your own. This could have been done in a variety of ways. Although he made an obvious attempt with his posterized effect, I am surprised he didn't do more to change and interpret the image. The court must now decide whether or not his attempt was enough to make it an original idea. A better example of this is Raphael Lopez's Obama "Nuestra Voz" poster, which is clearly based off an Obama picture, but drawn by hand. He will not face prosecution because of his interpretation. The question does arise, what if Lopez's poster was drawn in a photorealistic manner, would he be in the same boat as Fairey?