The artist Shepard Fairey who created the "Hope" image of President Obama used during the presidential campaign, is being accused of copyright infringement by the Associated Press. The AP claim copyright infringement for the use of the photo without permission. Fairey does admit that the photo was used as a basis for his artwork. Fairey went on to create thousands of posters and buttons using the artwork, which has generated an undetermined amount of revenue for the artist. Regardless of the profit made by the artist, it is my opinion that he has not infringed on the copyright held by the AP. He merely used this AP photo as a basis for the artwork he created. Using the photo, he then added his own artistic expression to create the "Hope" image.
Do you think this is copyright infringement, or fair use of the photo for artistic creation?
http://www.breitbart.com/article.php?id=D9652OD01&show_article=1&catnum=8
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ReplyDeleteHey Jamie,
ReplyDeleteI think it's infringement of AP's copyright act based on the following taken from the Copyright Act, Title 17, U.S. Code Section 107:
" Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work. "
http://www.copyright.gov/fls/fl102.html
I'm thinking that under the first premise, I can see it being used for "commercial" use as it was used during the campaign and can be seen as a form of advertisement or endorsement.
Regardless of if the artist is making any money, I know people who have been buying "Obama" paraphenalia(sp?)with that same image. I saw on the news that someone donated several paintings of a "similar image" for the St. Louis Inaugural Ball and one came up missing- probably with the intent to sell. So someone is purchasing it somewhere whether the artist profitted from it or not. If anything, I think AP would have a hard time going after all the black market "bootleggers" who are actually profiting from President Obama's image.
Lastly, I think that the portraits is a copyright infringement on the artistic expression of the photographer, who since is under the employ of AP, gives AP the right to claim copyright infringement.
It seems to be a little confusing and maybe up to the way both sides are presented. According to the copyright section in the book, "A derivative work may have its own copyright, provided it is sufficiently original. If a work is under copyright, the copyright owner has the exclusive right to make derivative works based on the copyrighted work. But preparation of a derivative work without permission may not infringe; it may be authorized under the fair use doctrine.
ReplyDeleteNotice the use of the word "may". This will be an argument for the lawyers on both sides, and the decision will be left to the court.
I'm looking at the term "sufficiently original" and if you look at the portrait and the photograph, how sufficiently original is it other than one is done with paint and the other is done with a camera.
ReplyDeleteThe artist would have nothing to be "inspired by" for that particular portrait without the actual photograph- first. Personally, I don't see that it is "sufficiently original".
That's a tough one. How many huge public events have you seen images from that end up getting spread all over the place? Images of the first man on the moon would be a good controversial one. What if the owner of the original video was a private corporation, would any likeness be considered infringment?
ReplyDeleteI guess I can see the AP holding some ground on this one though. Maybe it's my photographic background introducing some bias. They deal specifically in that market, and a significant part of their market strategy enlists photography and pictures.
Dave