The Ghost of Snapped Shot

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More on AP vs. Shepard Fairey

My good friend Peter Friedman has outlined more reasons why he thinks the Associated Press will fail in their pursuit of Shep Fairey (the text in bold being added by me for clarity's sake):

(1) It's Transformative: As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did.

(2) The Nature of the Copyrighted Work: The AP photo is a generic wire service photo. While photography is, of course, a creative endeavor, some images are more creative than others, and the AP photo of Obama is about as generic as they come. First, it’s an image of the most recognizable face in the world. Second, there is nothing special about it. This generic nature of the work is emphasized by the fact, as I pointed out above, that it took months before someone (not from AP), after scouring the internet on a search for the source of Fairey’s image, finally found the right one. AP had not even known its copyright image was part of a poster that was visible all over the country and in all the media.

(3) The Amount and Substantiality of the Portion Taken: In fact, this might be the factor that counts most seriously against Fairey, but even this factor is, I believe, a close call. As i explained above, about all Fairey’s image ultimately uses is the expression and the tilt of Obama’s head. The very nature of the image is changed from that of a photograph to that of a semi-abstract painting. The background is changed. The color of the tie (a generic tie on a generic suit) is changed. The circular Obama symbol on the suit’s lapel is added. And, of course, the word “HOPE” is added.

(4) The Effect of the Use Upon the Potential Market. This factor, which in the past has been referred to as the most important factor, isn’t even close. Fairey’s image has obviously had NO negative impact on the market for the AP photo. The only possible effect, a likely one, is that it has substantially increased the value of AP’s copyrighted image.


I agree with this outlook, for the most part. Fairey has definitely transformed something that would be an otherwise dull news photo from a press conference (sorry, my AP friends, but having great quantity of photos does not imply that most of them are quality) into something that's iconic—A putative work of art that that stands on its own merits.

There are some aspects of this particular case that are a bit troubling, however.First and foremost, programs like Adobe Photoshop make it quite trivial to "convert" photographs like that into poster-based art. I can understand the amount of artistic ability it takes to, say, create an oil-based painting of a photograph, for sure. But with the simplicity of the "silk screening" process brought about by Photoshop, I'm not sure there's as much "art" involved in the process as there should be (and no, I don't think picking color palettes is "art..." There needs to be more in the process!)

To help illustrate my point, I have transformed this Reuters photo of Tom Daschle (sorry, I'm still averse to offending the AP) into a Faireyesque poster that makes a political point:

It's "appropriation," but is it "art?"


The entire process took me less than 10 minutes to create in Adobe Photoshop, and required no other skill than knowing how to use the photo manipulation tools provided within that product.

Is that all it takes to create "art" these days? And is this cookie-cutter appropriation of photos really what we want to protect under the fair use clauses of the Copyright Act?

Arguments can be made either way, of course. Peter points out that this technology makes it easier for those without extensive artistic training to "create" art, which is obviously a good thing. And one could also point out that companies back in earlier generations didn't pursue incidents like this as often, since they recognized that art exists in a fairly unique realm.

What's more troubling to me, as others have pointed out, is that cross-media copying like that—whether it be from photograph to painting, painting to statue, photo to Hallmark card—does not necessarily fall under "fair use" exceptions of Copyright law, which would mean that Fairey's work would likely be held by the courts, based on prior law, as being infringement. This is, to me, complete nonsense, considering that other case law has held that photographs of other works (including, in one case, photographs of photographs), are "fair use" reproductions of the respective copyrighted works, however, case law is what it is.

The only thing I'm left to observe is that Copyright law is a complete and utter mess. Surely someone can figure out a better way of doing this, can they not?

 Tags: copyright AP Daily Fodder


Comments:

#1 Peter Friedman 06-Feb-2009
Two things:

Cross-media copying is not fair use only to the extent that the result is a "derivative" use. What constitutes a "derivative" use may be as obscure as any other matter on this topic, but it cannot possibly mean any work that is "derived" from a copyrighted work. Every fair use is derived from a copyrighted work.

So what is a "derivative" work? I would submit it is something that exploits at least in part the market created by the original work. Thus, for example, a Snoopy mug would be a derivative work, as would a cover song. I would submit that the following mashup, though quite entertaining, is a derivative work in that all it does is exploit the market created by Charles Schulz and OutKast:
http://whatisfairuse.blogspot.com/2008/02/another-mashup-just-because-i-like-it.html

The trivia book based on Seinfeld was a derivative use because its targeted market was the audience created by the sitcom. The bio of Salinger that was enjoined was a derivative use because it used such large portions of unpublished Salinger letters that it at least in part was intended to exploit the market for people hungry for anything new by Salinger (he hadn't published in decades).

But your Tom Daschle photo. It isn't exploiting any market created by the original. And you know what? The more and more such things get turned out, the less and less they'll have an impact. There's no denying that Fairey's image, while simple, is a powerful one, or at least that it resonated with a huge portion of the public. I don't think your Daschle workup would. And if so, so what? Does that hurt the original photographer? Are we to stifle your creativity to protect some right of the photographer not to have his photograph used in ways he doesn't want it used? There is no such right. Instead, there's the First Amendment, which, in the absence of copyright (created to PROMOTE creation) would allow us to use anything.
#2 captainfish 07-Feb-2009
in my lowly belief, is that if one pushes their material out in to the public for free consumption, then there should not be a copyright.

TV images and radio shows/music sent over public broadcast should not be covered by copyright. You are freely giving it away.

If I must pay to access your material, book, CD, DVD, then there is a copyright. As soon as your whole work is available to the masses, then it losses copyright. Like when the movie appears on local tv stations. If it appears on ppv, it is still being purchased for consumption, thus still covered. However, as ubiquitous as cable and satellite are, I don't think that constitutes a purchase should the movie or song be viewed on those channels as they also carry local stations.

If your book is put out by a library, then it is not covered. If the book or written material is available for download or viewing online, it should not be covered as the internet has become ubiquitous. You can't consider talking on a pay-for-service telephone line as copyright..... right?

To me, that is the most simple and logical way to handle copyright.
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