Copyright battle over Obama picture

just out of curiosity, is this an actual court case already? from the articles that i have read, i wasn't even aware that associated press had established legal standing since the photographer had not signed any contract to share or surrender rights to the photo.

Okay, despite my best efforts to avoid it, the two images were in the Washington Post yesterday or today and I saw them.

Here's the deal: Had the artist worked from his head, based on a conglomeration of images of Obama, he'd be in the free and clear.

The problem is that he took a photograph, which is the physical expression that is specifically protected by copyright, and made a derivative work. The image chain is what's important here. He worked from a photo that was not his, and that's a violation of the photo owner's copyright.

(By the way, the photographer either specifically and in writing transferred his ownership to the AP, or he made the photograph as a work for hire. The AP didn't steal it from him, and he has no standing in this case.)

Lots of people try to hide the fact that they worked from a copyrighted photograph by applying a range of alterations. And that may work, but that doesn't make it not a derivative work.

It's not Obama's face that's protected. He's a public figure and as such as given up any rights to his visage. The problem is simply that the artist did in fact work from a specific photograph.

I knew this was true because his lawyer was making a case based on Fair Use, which does not apply here. It was not a work of criticism that used only a necessary portion of the image, etc. Had the artist created his image legally, by doing it from his head or from his own viewing of the subject, that's what he would have argued. The artist didn't know copyright law and spilled the beans. That makes him like most appropriators these days.

Had he claimed that the image came to him in a dream, or that he saw Obama at a rally and painted it from memory, then the burden would be on him to convincingly describe how he did so, and how he managed to achieve so much similarity. That's assuming the photograph is registered with the Copyright office. If it is not, then the burden would be on AP to prove that he did work from the photo. Since he already blabbed that fact, it's already an acknowledged fact.

Arguing that we should be allowed to use images of the President without regard to copyrights is like arguing that a mass-murderer should not be executed because we don't believe in capital punishment. It's a separate argument for a separate time, but not relevant in the particular case under the particular law.

The bottom line: We know when we derive work from others, no matter what steps we take to change it and make it appear not so, or what we might say or think to justify it in our minds. If challenged, we will have to prove that we didn't.

Example: Let's say I arrange tuba quartet version of, say, the Fanfare from La Peri (a well-known work for brass ensemble by the composer Dukas.) Let's further say that the original version is in the public domain. But let's say that I used a modern brass quintet arrangement of that work as the basis for my tuba quartet arrangement. Is that infringement? Yes. I worked from a copyrighted arrangement to make my version. If challenged, and if I claimed that I had worked from the original, I will be expected to produce that public-domain original, and maybe also show how my arrangement emerged from it.

Example 2: Let's say someone appropriates an image from my website, and then makes an artistic interpretation of it. Is that an infringement? Yes. Let's further say that they claim it's based on their photo. They produce a copy of my photo, claiming it's theirs. If it's a photo of a popular subject, how will anyone know? In my case, I will be able to produce a raw image and evidence of my having been there at a specific time. That will establish the chain of ownership of that image. If my image is registered with the Copyright Office, the burden of proof will be on the infringer to show how their work derived from their photograph. And they'll then have to produce their own raw image (or negative or whatever) to give evidence of that. If my photo is not registered, it's still protected, but now I'll have to prove up that chain of ownership.

To those of you who think it ought to go against the AP just because they are big and corporate, what if Fairey was the photographer and an AP illustrator who made the poster? Right and wrong, legal and illegal should be evaluated on their own merits.

Rick "thinking the artist did it to himself" Denney

BillsBayou wrote in post #7295951
Who owns the copyright to this image? I just created it. I found inspiration in a photo and reproduced it in my own way to make it more than it was before. It's mine all mine. I'm going to make t-shirts and posters. I'm going to be famous.

Nope.

I say it's theft. That's my hand. That's my design. That's my artistic breath flowing across the image. That's just not my face.

It's an image I found SOMEWHERE on the Internet. I'm not saying who it is. I just downloaded it and just did my thing.

Sheesh, I hate this time zone issue with talking to you guys!!!

Bill, I LOVE that image! Absolutely love it! It's so much like the original, and yet contains a comic twist that is EXACTLY what I think makes it art, as opposed to "just" a plain ol' photo of some daft ol' bugger pulling a face at all the people in the world who take themselves far too seriously.

I think you've captured the essence of "that guy's" face really well in your interpretation of the photo that you found somewhere on the internet.

But despite it being easy to interpret your image as a bullying tactic to ridicule someone who simply doesn't agree with your point of view, the law's standing in the case in point, the defining issues between AP and Fairey, or the intrinsic value of case law(!), I'm not insulted, and I don't see your "art" as one and the same with my Avatar, even though I'm pretty sure (please enlighten me) that you've only used some computer trickery to create it, and not a paint brush.

And therein lies my train of thought about the "other" arguments I brought in earlier (and please don't bring Plato, Socrates, Camus or Kant in on this as they were just a load of alcoholics!)....

Copyrighting a photo "as is" makes sense to me. But if the photo is just the inspiration for an image, then the law is an arse for bringing in "derivative" restrictions. That's just legalese for "lets block inspiration".
And it's the rich folk who can push the law and lawyers harder to get things changed to how they want the world to look....and not how the world really should be.

btw, have you ever thought of being a lawyer? I just wonder because......

alt4852 wrote in post #7298061
just out of curiosity, is this an actual court case already? from the articles that i have read, i wasn't even aware that associated press had established legal standing since the photographer had not signed any contract to share or surrender rights to the photo.

That would be a separate argument. It could be a work for hire (if the photographer was an AP employee or a stringer who had signed a contract as such). It could be part of a standard agreement that photographers sign in order to provide images to the AP.

Rick "doubting the photographer is unaware of his ownership status" Denney

cory1848 wrote in post #7297258
Yea, right now I am filing my sunset picture with the copyright office... So anyone else that takes a picture of the sun setting I can sue.... Should be pretty lucrative.... And dont even think about painting a picture of the sunset either...

You are missing the point. It's not the thing being photographed that is protected. It's the photograph itself. The artist stated that he derived his poster from the photograph. Had he said, "I saw Obama give a speech at such-and-such time and place and his face inspired me to make the poster", then it would be a matter of a jury's evaluation as to whether he was fibbing or not. If the photo is registered, he would have to show when he saw the president, etc. But he made it easy on the AP by his admission.

Rick "imaging the many ways this could be turned against all photographers, not just the big corporate guys, if the artist skates" Denney

A dude once painted soup cans.

He did, and I don't think he was ever sued. However, doesn't necessarily mean that he wasn't potentially liable -- maybe Campbells liked being a pop icon.

rdenney wrote in post #7298545
You are missing the point. It's not the thing being photographed that is protected. It's the photograph itself. The artist stated that he derived his poster from the photograph. Had he said, "I saw Obama give a speech at such-and-such time and place and his face inspired me to make the poster", then it would be a matter of a jury's evaluation as to whether he was fibbing or not. If the photo is registered, he would have to show when he saw the president, etc. But he made it easy on the AP by his admission.

Rick "imaging the many ways this could be turned against all photographers, not just the big corporate guys, if the artist skates" Denney

the point about sunsets isn't the sunset itself, it's the idea that someone could hypothetically take your photo of a sunset and use it as inspiration to take their own sunset photo. if they used the "tripod-holes" example from earlier and tried to mimic your sunset photo, should you be looking to hire a lawyer since they're creating their own work while using your photo as a general reference for style? payday!

although i suppose a few of you will say yes, the reason why i think there's more to it is simply that all of our work is usually inspired by other work. that's just a reality of our trade; photographic technique is often created through observation, imitation, and innovation. we see aspects of others' work that we like, we learn their techniques, and we try to incorporate and apply it into our own work in our own way. any professional photographer who claims their work is the sole result of trial and error is lying. we all learn from each other, and we all start somewhere.

(ie: read the countless number of threads on this forum on posing models. is it theft to use someone else's photos in mind as a reference to pose your own models? i think not. yet that's the same thing that's going on here. he used the photo as inspiration to create a painting. we use other photos as inspiration to create our own photos.)

mattograph wrote in post #7300368
He did, and I don't think he was ever sued. However, doesn't necessarily mean that he wasn't potentially liable -- maybe Campbells liked being a pop icon.

I think they're waiting till they need some money. Then they'll lay claim to all the paintings. They sell for millions.

Which begs the question then. Why isn't art considered to be free from this sort of nonsense?

Then...

"What is art?"

Stealthy Ninja wrote in post #7300560
I think they're waiting till they need some money. Then they'll lay claim to all the paintings. They sell for millions.

Which begs the question then. Why isn't art considered to be free from this sort of nonsense?

Then...

"What is art?"

Careful Ninj'!!!!

Someone might see your final question, take it as a philosophical challenge and after some carefully worded drivel, try to suggest "that has nothing to do with this thread".

The whole reason art isn't free from all this nonsense is because of people who want/need rules for everything. And I mean everything! And then push it through courts until we're all forced to live inside said rules.....hmmm, don't you live in HK? Just look inland a littleways and you'll get the idea of what the end result could be....
(Oh come on mods...that's not exactly political)

God forbid if we photograph anything that's been photographed before.

Oh wait...who hasn't photographed this shot?

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My great leaders to the north would NOT appreciate what you say skygod.

Stealthy Ninja wrote in post #7301247
My great leaders to the north would NOT appreciate what you say skygod.

That's why I live in Japan, where real freedom exists..............as if!

(Oh no, I just had a hernia from laughing so hard at my statement!!!)

Stealthy Ninja wrote in post #7301247
My great leaders to the north would NOT appreciate what you say skygod.

Me?

Just a bit of fun....and no, I won't market it or make any money out of it, blah, blah, blah!

Need I say more?

Stop taking yourself so seriously, and think about/discuss this thread without feeling as if we (you) are personally involved in the AP v Fairey case.

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