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  1. lordofhats
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    lordofhats Contributing Member

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    Creator of Famous Obama Poster in Trouble

    Discussion in 'The Lounge' started by lordofhats, Feb 5, 2009.

    The creator of a famous Obama campaign poster is now in trouble with the Associated Press for his use of an AP photograph to create the piece (You can find the original photo and the famous "Hope" poster side by side in the below article). NOTE: This isn't an Obama thread, it's a copyright/Fair use thread.

    Here's the article: Yahoo! News

    Personally, I think the AP is blowing steam out their ears. I'm not Picaso or anything, but I took a lot of art classes for easy grades to boost my GPA in high school and I did learn some things. I find that Fairey's piece is so different from the original photo, that the AP has no real claim to the poster he made, even if the photo was used as a basis for the work. He completely changed everything but the outline of Obama's face. He changed the texture the color and even the message of the picture from a simple "here's the guy we're talking about in dramatic pose" to a political statement that's swept in like the peace sign. There's even content in the poster not in the original photo (the lapel pin). With so many changes it's a whole new piece of work.

    Lots of art works are created in a similar manner (I have a painting I painted by splicing pieces of other painting together hanging on my wall). It's common in the art word for an artist to take photos off the net and make changes to them. Usually this falls under fair use doctrine even if the painting is latter sold for profit.

    The AP want's compensation, while Fairey and his attorney says that the new piece falls under the fair use doctrine.

    What do you guys think? Is it fair use or copyright infringement or neither?
     
  2. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    You are wrong. Using soimeone else's intellectual propertry as a starting point for your work, without permission, is a violation of copyright law, regardless of what modifications you perform. Even if the modification is so throrough that even the originator cannot identify his or her work, you are legally in violation. The fact that you cannot be successfully sued in that case does not change the fact thet the law has been broken.

    Fair use applies to certain purposes such as reviewing or citing the original work. It does not apply to uses which attempts to conceal the origin of the work in question
     
  3. Acglaphotis
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    Acglaphotis Contributing Member

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    Then of what use is the law in this case, if it can't be enforced? On an unrelated note, how is it that the RIAA can profit off copyright violation cases if no money had been gained for the violator in that case? It's basically asking for money just because.

    I personally think copyright law should change, be more specific and not as usable as an excuse to throttle and manage people's internet connections. Also, had he licensed it differently, could this been avoided?
     
  4. lordofhats
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    lordofhats Contributing Member

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    Probably. If he'd gotten permission from the AP I doubt they'd be raising a fuss now. What I find odd is that the poster has been in circulation for over a year and a half (thats as far back as I remember seeing it at least) but it's only now that the AP has a problem with it? I think they're just being sour sports.

    Fair use is used in terms of art pieces all the time because what Fairey did is common practice among artists. I doubt Fairey tried to conceal the origin of the photo he based the piece on. He just saw a photo and saw something he could do with it. He didn't even start profiting from the poster until recently. It circulated via the net and was printed off by Obama supporters with little from Fairey.

    I view it as a concept sort of thing. He saw a picture, and used the image he saw to create something else. What he created is uniquely his regardless of what inspired him to make it. I don't see how the AP can claim copyright infringement on his use of a photo as inspiration. <-- my opinion
     
  5. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    If the photograph were merely used for inspiration, there would be no lawsuit. If the image itself was used in the creation of the poster (tracing, photoshopping, etc), then there is grounds for the lawsuit.

    The line between inspiration and theft can be thin.

    The law defines what is and is not permissible. Determining if the law has been violated is a matter for a judge and/or jury to determine. Whtwer it can be proven depends on the evidence.

    Law is not defined based on whether or not you are caught.
    Really? Those laws also protect your rights to your own writing, no matter how easy te Internet makes it for people to steal your work.

    Do you honestly believe that if someone can find your writing on the Internet, they should be able to make a few changes and then sell it as their own work?

    Photographs are a creative product also. Just because you can grab a picture off nearly any web page with ease does not make it yours to include in a project of your own to publish in turn.

    Did you know that many photographs on the web contain a digital signature that is very difficult to eradicate? And that the signature can identify even a heavily edited and cropped image? Proving that you misappropriated an image can be easier than you might think.
     
  6. CDRW
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    CDRW Contributing Member Contributor

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    I'd say that the laws are good the way they are now, they give very good protection to the artists, but in this particular case I think that AP is just being stupid. They may be within their rights, but that doesn't make them right. Even if I was the one who had taken that photograph I wouldn't mind one bit if he did what he did with it. Even if he didn't get the permission he still credited the source, it didn't affect AP's profits, and he didn't get any profits off of the poster. If anything I think they're milking this for publicity instead of out of any artistic or financial outrage.

    On a side note, I wonder if he even did use the original photo. The article is written like he did, but it never actually says that it served as more than inspiration. There are some minor differences in them that make me think it may not have been copied. They could have easily been photoshopped though. The main thing is that his head is at a different angle in the poster than it was in the photo.
     
  7. NaCl
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    NaCl Contributing Member Contributor

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    I agree with Cog on the legal and ethical issues...in addition, even if a person has a reasonably defensible premise, a big company can bankrupt a little guy just by filing the lawsuit and vigorously defending their position. Let's face it, in legal matters, money wins.
     
  8. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Incidentally, I have used digital signatures to protect certain images on the Internet.
     
  9. lordofhats
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    lordofhats Contributing Member

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    I don't think he did (though its hard to tell because of the off coloring). It seems to me Obama's head is slightly lower in angle in the poster, and his shoulders are lower in comparison to his head as well. His eyes also seem to be looking more upwards than they are in the original AP photo. The top of the head also seems to have a different arc to me. The tie is also set at a different angle and the collar is slightly narrower. EDIT: His shoulders are broader in the poster too, and his head is not just lower in angle but has a different tilt on the neck.

    Again though I can't be sure. The coloring makes it hard to tell if he replicated the concept entirely from scratch. A good artist can replicate entire images from memory, but I find little tiny difference in the two that I would argue show that the poster isn't an overlay or photoshop. Also, Fairey doesn't do photoshop art, he does street art. Most street artists use spray paint, markers, or chalk. The image looks like it could be either spray paint, or possibly an air-brush. I'm leaning towards spray paint because you can see deviations in the solidity of the colors that are typical of spray painting. It still might be a photoshop though, because he did put the image on the net before anything else (granted I think most pro artists would be packing a heavy duty scanner :p).
     
  10. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    He may have generated masks from the photo for silkscreening. Some distortions can accidentally or deliberately been introduced by stretching and shifting mask layers, or even individual features, for artistic effect.

    I only caught a moment of a news story about the case, but it sounded like he mentioned the use of the photo at some point, so he may have tripped on his lip and given himself away.
     
  11. tehuti88
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    tehuti88 Contributing Member

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    Just because something is commonly done doesn't make it right or legal.

    I recall somebody writing a letter to National Geographic making mention of how they'd seen a painting that was obviously copied after a well-known photo in the magazine. National Geographic, of course, replied to state that this was illegal and was not condoned by their publication.

    On an art site I belong to, the only photos people are legally allowed to use in their work are STOCK PHOTOS where they are given permission to use them in art. If this permission is not given, using the photos is illegal.

    I've had people take my photographs and manipulate them without my permission, and have asked them to remove them from the Net, which they did. If I were to find you had taken some work of mine and "spliced it together" to make a piece of art I would also ask you to cease doing this, and rightly so, because you'd be violating my copyright.

    I say the AP is in the right here.
     
  12. tehuti88
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    tehuti88 Contributing Member

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    Why would the AP need more publicity??

    Firstly, just because you yourself wouldn't be upset that somebody illegally used your work doesn't mean somebody else shouldn't be. Some people don't mind if their work is used, but some people do. And the AP "being within their rights" DOES make them right...it's their legal right to enforce such things. The law says they are right.

    This usage might not affect AP's profits and this and that and whatnot, but if the AP lets one incident of copyright infringement slide, it creates a dangerous situation. People have to police such things or they could lose their copyrights entirely. It might seem like one case of pointless niggling to you, but it could set a dangerous precedent if they weren't strict about the misuse of their property. They could end up losing a whole lot more than the rights to one photo.

    One of the people who used my photos without my permission had credited me on the page. But they still hadn't ASKED me for my permission. I thanked them but had them remove it anyway, because credit or not, what they did was still wrong, and I don't want to convey the idea that using my work without my permission is okay with me--which the AP would be doing if they didn't go after this case.
     
  13. lordofhats
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    lordofhats Contributing Member

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    Court cases say it's legal. Many times this same thing has happened to artists. They go to court and they usually win depending on the circumstances. It depends on the method of creation of the new piece and the source of the original images. I don't know how Fairey created the poster. All I've heard is that he based the poster off the AP photo which could mean he photo-shopped it or replicated the image in a new way. The first is illegal but the later has piles of court cases saying it's legal (including several Supreme Court cases). The poster can fall under fair use because the photo can be protected but Obama looking up is not. Because Fairy changed the meaning and the theme of the piece it falls under Fair Use according to Time Inc vs. Bernard Geis Associates which I think covers this issue (not that I'm a law student XD. This is High School AP Art talking XD). Unless the poster harms the original photo's ability to distribute and profit, Fairey hasn't committed infringement provided it's not a photo-shopped image.

    I've seen it as the second option from the start but I don't know because the only person who would is probably Fairey. I'm leaning towards the second because I find tiny differences in the two that I doubt he'd go through the trouble of to hide a photo-shop.
     
  14. Penny Dreadful
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    Penny Dreadful Senior Member

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    If he actually used the photo, I say copyright infringement. If it was reference, that's not quite as bad. I only glanced over the article, but if he was given the photo by the campaign... obviously, no problem at all here.

    I certainly don't agree with taking someone else's work and "cutting it up" to make something new. I've only ever had a problem in that department with my editing. I sometimes make amv/gmv/mvs, which are basically just scenes from animes/games/movies to music. I use Vegas and Photoshop, and work on a video slowly over a matter of months, in my freetime. They usually come out, well, pretty darn good if I do say so myself.

    Obviously, I have no copyright. I make no money. It's just a hobby, and I generally include the obvious disclaimers. It still bugs the heck out of me when I see people posting my videos as their own. It bugs me even more when I see people download a video, mix up my editing, and put it to a different song.

    Someone e-mailed me complaining that people who recognized my video were harassing him to take it down. He had downloaded my video, mixed up the scenes, and set it to different music. Obviously, that made it a different video, right? :rolleyes: Needless to say, I had no pity on the guy.
     
  15. Henry The Purple
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    Henry The Purple Active Member

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    Omg, have you seen that film Penny Dreadful? its so funny. I loved it when she thought she could get out the boot, but then the crazy man slammed it down, dashing her hopes of freedom! Such a such a good film! :)
     
  16. Penny Dreadful
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    Penny Dreadful Senior Member

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    ... that seems really random and off topic. But, yes. When I was reviewing horror movies, it was under the name Penny Dreadful. Natually, it fell upon me to review the one I shared a nick name with.

    I thought it was terrible.

    My name comes from cheap Victorian books called penny dreadfuls.

    And nevermind about part of my earlier post. A second article says that the artist claims he found the image through a Google search... then again, this article is by the AP o.o. Perhaps they're biased...
     
  17. Acglaphotis
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    Acglaphotis Contributing Member

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    I said changed, not erase. Right now they allow your ISP to rattle through everything you do online, and there are no laws about them not keeping logs (see the AOL scandal from the early 2000s) which is vastly anti-privacy. I'm not advocating piracy and copyright infringement but I am pro privacy. Also, the laws right now make it possible for people to make up money that wasn't lost. That is just not right. I'd understand if they were fines but as it is now, people can make a business just by suing.
     
  18. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    I disagree. Direct profit is not the only damages that can ensue from theft of intellectual property. The jury sets the damages awarded based on the facts of the case, within limits set by the law.

    As for privacy, there are very many on the Internet who attempt to conceal their location in order to commit crimes. Privacy is never absolute, and the Internet is not, in itself, a private medium. It is necessary to keep records, although access to those logs must be subject to due process.

    I have some experience with Internet security and the types of attacks launched over the net. They impact privacy far more, and with much more malicious intent, than the kinds of laws you are objecting to.
     
  19. Acglaphotis
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    Acglaphotis Contributing Member

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    Would you be happy with someone recording every phone conversation you make? It's just a matter of principle. I'd be happy knowing logs are very securely kept behind a bureacratic process, but the ISPs have a tendency to use to market to you better.

    And, I'll accept that there are other kinds of damages. but I've read about this person who got sued for a song downloaded in his assigned IP range, but he had an open router, and the court simply wouldn't listen to the fact that he may have not done it (never even found the song in his PC). It was on reddit a while back so I'll see if I can find it. The damages fine was above the thousands.That's what I find incredible. It shouldn't be that way.

    I do see where you're coming from, though.
     
  20. CDRW
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    CDRW Contributing Member Contributor

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    Do I really need to state why a news orginization needs publicity? That is the entire point of the buisness.

    Perhaps I should restate what I said in different words. Just because something is lawful, that doesn't mean it's good. Cases like this just turn law-enforcement into Knights Templar.

    What you say is true to an extent. Being careless about taking care of your intellectual property can be dangerous, but there comes a point where enforcement is not worth the benifits gained. That is why a policeman is not going to give you a speeding ticket for going 3mph over the speed limit. The entire point of having laws in the first place is for protection, at least that's the point of laws in this country. I think that this infraction, if it actually is one, is so small that enforcing the law causes more harm than letting it go. That harm is done through bad blood, increased paranoia, and restrictions placed on creativity.

    This kind of thing causes confusion about what you are and are not allowed to do when creating your own art. It scares people away from creating their own because it is similar to something else, regardless of if it was created from, inspired by, or just happened to look like it. You can see that happening on this very site when someone puts up a post asking if they can get sued for writing something that is similar to an already published book.
     

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