What me, worry?

February 5, 2009 7:51 AM

AP alleges copyright infringement of Obama image. Related. Also, see previously [1] [2] [3].
posted by humannaire (75 comments total)

And isn't it ironic iconic... don't you think. -Alanis Morissette
posted by gman at 7:57 AM on February 5, 2009

In this interview with Shepard Fairey on Fresh Air he talks about the original AP image. I don't have time to re-listen to it and there's no transcript, but I think he said they made a second version of the poster that was not explicitly based on the AP photo. From the FPP article, it looks like it was just rotated a bit.
posted by zsazsa at 7:57 AM on February 5, 2009

A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images.

Fairey's a loose cannon! He doesn't play by the book!
posted by Spatch at 7:57 AM on February 5, 2009 [5 favorites]

Fair Use.
posted by R. Mutt at 8:04 AM on February 5, 2009

This should give wingnut sites like RenewAmerica a new reason to argue why Obama shouldn't be President.
posted by Joe Beese at 8:08 AM on February 5, 2009

I know you're broke and all, AP, but this still looks like a douche move.
posted by kittens for breakfast at 8:10 AM on February 5, 2009 [5 favorites]

Oh for the love of Barack
posted by The Whelk at 8:11 AM on February 5, 2009

Fair Use.

Sadly, no. See also: music sampling.
posted by dirigibleman at 8:21 AM on February 5, 2009

Fair use elements:

1. the purpose and character of your use.
This was transformative, and not a mere reproduction. Value was added in new aesthetics and commentary. +1 Fairey.

2. the nature of the copyrighted work
News/factual. +1 Fairey.

3. the amount and substantiality of the portion taken
Possibly substantial, but he is borrowing to comment upon the original work. +0

4. the effect of the use upon the potential market
To my knowledge AP is not in the business of selling posters and t-shirts, or endorsing candidates. I guess it theoretically could, though. Eh. +1 AP.
posted by naju at 8:25 AM on February 5, 2009 [2 favorites]

This isn't even remotely fair use.
posted by Pastabagel at 8:29 AM on February 5, 2009

Good arguments for and against fair use can be made, but the formula itself is so malleable that predicting which way a court will rule (until we possibly get to a circuit that leans heavily either way) is impossible.
posted by Inspector.Gadget at 8:33 AM on February 5, 2009

4. the effect of the use upon the potential market

Fairey took what would have been just another Obama photo among countless others and immortalized it. My guess is he's enhanced its value for licensing purposes.
posted by George_Spiggott at 8:35 AM on February 5, 2009 [4 favorites]

Looking at that shotgun analysis again, my #1 should probably be +0 since the use was heavily commercial. Yeah, I think it ultimately comes down to the predilections of the court..
posted by naju at 8:36 AM on February 5, 2009

I dunno... this site is pretty convincing...
posted by lunit at 8:45 AM on February 5, 2009 [5 favorites]

I'm shocked that Shepard Fairey ripped somebody off.
posted by plexi at 8:45 AM on February 5, 2009

Ah, lunit, reframing Communist and other imagery is the point of Fairey's work. That page is either a joke or someone actively working very hard at not getting it.
posted by roll truck roll at 8:58 AM on February 5, 2009 [3 favorites]

This raises an interesting point: if Fairey had taken that photo and made a satirical painting of it, it would undoubtedly be fair use, as satire (especially of public people and government officials) is expressly protected. But he wasn't mocking Obama. He was promoting him... so now its debatable whether or not it's fair use.

While I understand that satire is implicitly more of a comment-on rather than just a use-of, I find it odd that ridicule is, in a way, a more protected form of speech than praise.
posted by Kiablokirk at 9:05 AM on February 5, 2009 [3 favorites]

Wow. All that other shit he blatantly ripped off is kind of disturbing. The Obama photo I don't so much think is damning, but lunit's link makes me kind of sad. Like the designs, but never want to buy them now.
posted by six-or-six-thirty at 9:09 AM on February 5, 2009

So you can't make artwork based on copyrighted images now? It doesn't even look the same. His head is tilted. The AP might as well just claim copyright to all depictions of Obama, in whatever format they appear.
posted by no_moniker at 9:09 AM on February 5, 2009

if it's so easy, why didn't the AP photographer take his own photo and turned it into a red white and blue poster with the Obama logo on the lapel, the HOPE sign and the little Andre the Giant in the background? he could have ended in a museum and made a bunch of cash in the process. instead nobody knows who he is.

if that press conference photo alone was so damned fucking iconic by itself, why didn't even the AP photographer recognize it on the Fairey poster for months?

answer: it was just another photo. Fairey turned into what it is. Fairey can't draw? Tough shit. he turned just another press photo into something memorable.

see also: Campbell soup cans, Brillo, etc.

see also also: Paul's Boutique.
posted by matteo at 9:10 AM on February 5, 2009 [2 favorites]

In the NPR interview zsazsa linked, he says

"The Obama campaign liked that image, but because it was being disseminated in some ways illegally, or bending the rules at least, they couldn't officially get behind that poster."
and
"I didn't keep any money from the Obama posters, I put it all back into making more posters and to donating to the campaign."

Seems fair to read that first phrase as acknowledging the not-entirely-kosher legal status of the image, and to read the second that while he may not have profited from the poster, he did cover his costs.

Also, roll truck roll, though i do "get" his intention in systematically re-appropriating imagery, i do have difficulty "getting" why he he has consistently refused to credit the origins of his images.
posted by progosk at 9:28 AM on February 5, 2009

Fairey's lawyer, Anthony Falzone, law professor at Stanford's Fair Use Project, has a blog. So far there's just a short notice about the lawsuit.

Personally I think that accusations of plagiarism have gotten way out of hand. Fairey's work, both the Hope poster and everything Mark Vallen mentions in the article lunit linked to, is distinctive and distinctively different from the originals.

I get mad when people take standards that apply in journalism and academia and transfer those to art and literature which have different standards because they are different pursuits with other goals and methods.
posted by Kattullus at 9:33 AM on February 5, 2009 [1 favorite]

It's derivative and is basically a commercial/marketing device, even if he didn't keep the profits. Unless someone can explain the commentary part of it, I don't see it (could I do a similar artistic effect on a Norman Rockwell painting, put "HOPE" on the bottom and call it commentary? I doubt it). I don't think he'll win the fair use argument. But it's still a cool poster.
posted by starman at 9:37 AM on February 5, 2009

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

via

If the photograph had just been cropped and re-printed on t-shirts and coffee mugs without permission, you'd have a pretty clear-cut-case of copyright infringement.

While the original photo is clearly the reference material, I don't think the AP can reasonably claim that Fairey lifted original 'expression'.

The original photo is a candid shot of Obama during some proceedings. The poster is laden with political commentary - the likeness transformed into something iconic. The meaning and context is changed entirely.

You might dither about the specific definition of 'Fair use' (which is deliberately grey) - but Fairey's images clearly does not infringe. Additionally the AP has no copyright on a public figure's likeness - which is the fundamental basis of the work.

Obviously the teams of lawyers will work it out, but if the AP were successful in it's efforts, we'd have to close art museums everywhere.
posted by device55 at 9:37 AM on February 5, 2009 [3 favorites]

I'm on Fairey's side on this one, but calling him an "artist" is going a little far.

He's an artist the same way the firm that drew the new Pepsi logo is an artist.
posted by jabberjaw at 9:39 AM on February 5, 2009

I understand the reincorporation of the imagery. I don't think his works as a whole should be called 'plagiarism' (pardon my use of the phrase 'ripped-off' above, was a bit too intense), but I have been taught to always, always credit a source in the form of citing a reference for any aspect of my art. Maybe I'm just weird.

Does anyone know if he mentions his references anywhere? I realize it would be difficult to do on clothing and some products (put it on the tag, something?) I suppose I could find his website.

At any rate, I get the feeling that to most here citing a reference isn't such a big deal, but I guess I feel that it should at least be some kind of deal.
posted by six-or-six-thirty at 9:40 AM on February 5, 2009

In the interview, they also talk about the specific image:

Interviewer: [The Obama campaign couldn't use the original poster] I think because you didn't have the legal rights to the photo that you based your image on. I'm wondering if you'd like to give a shout-out to the photographer whose image that came from.

SF: You know I actually don't know who the photographer is. It's an AP photo that I got off of Google, and I actually still don't know who took the photograph. They've never approached me. My illustration did stylize and idealize from the photo, and there were many other elements within the photo; only one person in the entire time since I created the image a year ago has sent me the original and said 'this is where you got that illustration, isn't it?', so, you know I'm glad, one, that the photographer didn't say 'hey, I don't like that you're using this image', maybe they're an Obama supporter, but I still don't know who it is, but I, whoever you are: thank you.
posted by progosk at 9:45 AM on February 5, 2009 [1 favorite]

Does this mean I have to send my sticker back?
posted by diogenes at 9:47 AM on February 5, 2009

Considering it is the AP, and how my opinion of AP has taken such a friggen nosedive in the last year or so I'm rather meh on this even if they happen to be correct.
posted by edgeways at 9:47 AM on February 5, 2009

You could do a similar poster based on a Norman Rockwell, but you didn't.

(this is the same argument people make against abstract art "my kid could do that" - but your kid didn't. he sits in front of the tv with a finger in his nose)

There was an entire school of artists in the late 70s and early 80s - known as 'appropriation artists' who would blatantly copy original artworks as part of a political or conceptual commentary. An example might be a female photographer sneaking into a museum to re-shoot an Edward Weston photograph. The artwork is a photo of the photo (and a political statement about ownership, the male gaze, etc, etc).

There have of course been other examples, Warhol's soup cans being a very well known one.

While these artists met with legal challenges, they typically won on grounds of 'fair use', so there is legal precedent in favor of Fairey.

Your inability or unwillingness to see the commentary in Fairey's poster is not relevant. If Warhol's soup cans are fair use commentary, then Fairy's poster certainly is as well.

http://en.wikipedia.org/wiki/Appropriation_Art#Appropriation_art_and_copyrights
posted by device55 at 9:50 AM on February 5, 2009 [5 favorites]

> He's an artist the same way the firm that drew the new Pepsi logo is an artist.

So, he's an artist then?
posted by device55 at 9:55 AM on February 5, 2009 [4 favorites]

Also, roll truck roll, though i do "get" his intention in systematically re-appropriating imagery, i do have difficulty "getting" why he he has consistently refused to credit the origins of his images.

Does anyone know if he mentions his references anywhere? I realize it would be difficult to do on clothing and some products (put it on the tag, something?)

I actually hesitantly agree with you guys, but it's a question that touches on a lot of big issues. Issues that are, I think, what his work is really "about." As Fairey's work becomes more mainstream, the possibility decreases that people who encounter it are as familiar with propaganda imagery as he is. So it becomes a sort of empty shell of propaganda, not referring to anything. An advertisement for itself (an idea that he plays with continually; e.g., replacing Mao's red star with Andre).

It also touches on questions about graffiti art, and its largely oral culture. Tags are for people who know what tags mean. Fairey's posters are, in a way, for people who know what Fairey's posters mean too, but they're also for everyone except people who know what they mean.

The original "Andre has a posse" project--part of its point, if I understand correctly, was to see how people would respond to something they didn't understand. Would they be afraid of it, or would they want to buy into it somehow and pretend to be in the know? Hordes of kids have been essentially doing the latter for 20+ years.

The Obama poster adds a new wrinkle to it: what's it mean for fake propaganda to turn into real propadanda?
posted by roll truck roll at 10:11 AM on February 5, 2009 [1 favorite]

Are you people crazy? Some guy makes a vector-style poster based on a news agency photo of the most public figure in the entire world, and he's violating copyright? Yes, you people are crazy. Challenge: make a poster of Barack Obama that doesn't look like any of the millions of photos of the president out there.
posted by iconjack at 10:14 AM on February 5, 2009 [1 favorite]

He's an artist the same way the firm that drew the new Pepsi logo is an artist.

>So, he's an artist then?

Precisely - if you consider commercial branding and logo design art, then he's an artist. And so is the Arnell Group - the Arnell Group is an artist. Hm.

I don't think I'd consider it an artist, but judgments vary.
posted by jabberjaw at 10:20 AM on February 5, 2009

starman, if you do, do it with this one.
posted by Westringia F. at 10:22 AM on February 5, 2009 [3 favorites]

Would he have a better case if his poster had said "OBEY!" instead of "HOPE"?
posted by straight at 10:28 AM on February 5, 2009 [1 favorite]

iconjack - then it wouldn't look like Obama.

How many hundreds of photos captured him in some progressive/ triumphant/ forward-looking pose? How could you possibly make something look wholly new with this mass of images?

jabberjaw: the purpose of the product doesn't really define the personal job or role. Someone who builds a house for themselves or the impoverished is no less a builder than someone who builds a house for a corporation. Artists are often divided into the categories of "fine art" and "commercial art." Practitioners of both are still artists.
posted by filthy light thief at 10:28 AM on February 5, 2009

Okay then - Shepard Fairey is a commercial artist, then. I just don't think we should pile any praise on him outside of the commercial art realm.
posted by jabberjaw at 10:43 AM on February 5, 2009

lunit makes a good point with the link he submitted above. I was already aware of some of his other appropriations.

In the Fairey spot that's been done by USA networks recently, he states that he hand drew the image based on the AP photo. Of course it does look like he used Illustrator for it. In fact I'm pretty damn sure it's Illustrator -- imagine if the AP actually got a digital artist in the courtroom to testify.... and recreate Fairey's work in a matter of minutes. Wouldn't be too hard, I think -- given a half an hour I could do it, and it'd take just minutes once I've figured out the threshold levels and set up a few actions.

And as much as I respect Fairey as an artist, I'm just gonna say it:

Shepard Fairey is the HOT TOPIC of art.
posted by Catblack at 10:48 AM on February 5, 2009

Starman: There is definitely commentary in the Shep piece. Consider that it's a propaganda piece meant to advertise a candidate:

-Added a catchphrase ("Hope")
-Replaced Obama's black skin with red white and blue colors
-Inserted the Obama campaign logo
-tilted the head to look less quizzical and more as if he was looking off in the distance
-Erased the smile-lines around Obama's mouth, making him look younger
-By taking out the skin texture and replacing it with a more simplified graphic design look, he's taken a photo of one man and made something that looks like a man, in the same way that an image of one man smiling represents just that man, but a smiley face represents all people that are smiling.

So in other words: he took a specific photo. And then he made it more optimistic, American, white-friendly, far-thinking, and universal. The differences are subtle - but there's a reason why the Shep image was so iconic and visible and that UP photo was just one of a million photos: that photo was just a photo, but that painting designed to say something, and what it said spoke to people.

Also: while we're talking about this, I would like to say that when it comes to propaganda, even a simple thing like cropping a photo makes a huge difference in what it means. For example - there are other people in the original photograph of Che Guevara that became so iconic that decades after his death still people are buying t-shirts with that on it. But would that be the same thing without the close up on just him? People probably wouldn't read so much into it if his gaze wasn't so immediately visible, or if he just looked like he was part of a team. Or when Stalin airbrushed disappeared people out of photos...

No, I think even something as simple as tilting a photo to take a quizical look and turn it into a visionary-looking-into-the-distance look is important when it comes to people who aspire to wield massive amounts of power, because how they appear to us in media helps them become who they are behind the scenes. The Obama camp definitely had concerns about how people interpreted his race, and so I don't think its an accident that his posters had graphically designed images instead of photos.
posted by Kiablokirk at 10:48 AM on February 5, 2009 [10 favorites]

Fairey Use
posted by Mental Wimp at 10:50 AM on February 5, 2009 [2 favorites]

Ah, lunit, reframing Communist and other imagery is the point of Fairey's work. That page is either a joke or someone actively working very hard at not getting it.

it's neither. they address that very point in the article. i haven't read it since it was last posted here, but if i recall correctly, they mention how fairey has never once credited the sources of his work, even going so far as to deny their existence until someone finally challenges him with the evidence.

the difference is between work that acknowledges working off pre-existing work to make a statement and work that pretends to be adopting a style while still maintaining original design. fairey encourages the belief that he does the latter, while the evidence points to the former. this leads people who actually know something about the history of propaganda artwork (who seem not to be fairey's intended audience) to think that he's merely trying to make a buck as a designer rather than make any valuable artistic statement. hence, the art historians who agree with the linked article get frustrated with the reception of his work as some kind of new artistic movement, precisely because it seems so much more like a cash-in on old design.

bear in mind, however, that this does not legally incriminate him, and has no bearing on fairey's use of the AP Obama photograph.
posted by shmegegge at 10:51 AM on February 5, 2009

Fairey's a loose cannon! He doesn't play by the book!

Well, there was that one time he vandalized one of Buddy Cianci's campaign billboards with a huge Andre the Giant sticker. He's done some badass shit back in the day.
posted by jonp72 at 11:00 AM on February 5, 2009

Heaping praise or other stuff is all fine and good. Please feel free to continue loving or hating which ever fine or commercial artists you prefer.

I personally think that art criticism could benefit from some good old honest "I just hate that" once in a while, instead of lofty justifications for an opinion.

However it's amusing to me that people, especially those schooled in the arts, continually and constantly perpetuate a 'no true Scotsman' fallacy each time they encounter art they don't like by claiming it's "not art" even when it's categorically the same damn thing - e.g. the Thomas Kinkade fan and the Jackson Pollock fan say the same thing about each other's favorite artist.

But anyway. Copyright law is wonky.
posted by device55 at 11:12 AM on February 5, 2009 [2 favorites]

Starman: There is definitely commentary in the Shep piece. Consider that it's a propaganda piece meant to advertise a candidate:

-Added a catchphrase ("Hope")
-Replaced Obama's black skin with red white and blue colors

Good point, but I wonder if the court distinguishes between noncommercial political and social commentary and commentary to market a person/product (and which one this would fall into if so...).
posted by starman at 11:16 AM on February 5, 2009

It seems to me that there are enough differences between the photo and the poster that if Fairey hadn't told everyone where the image came from the AP might not have figured it out. But I'm certainly not a copyright lawyer and I have no opinion on the fair use business worth stating.

What I find suddenly interesting is that the discussion of the iconic Che Guevara photo discussed above caused me to look up the original photo in its full-frame version and the Obama poster image and the Guevara photo were both rotated in a very similar fashion that really changes the meaning of the image in a big way. Compare to the AP photo vs. the poster on the first link. Of course the Guevara photo is also severely cropped.

I still haven't got a clue about the legalities but I think I learned something about cropping photos today.
posted by lordrunningclam at 11:36 AM on February 5, 2009 [3 favorites]

If Obama knowingly and deliberately adopts the pose and expression in the photo and takes a picture of himself on a timer, has he infringed the AP's copyright on that particular arrangement of his face?
posted by George_Spiggott at 11:53 AM on February 5, 2009 [4 favorites]

> Trick question: the AP cannot copyright Obama's likeness - only that particular photographic 'expression' - i.e. the AP can have no copyright on the arrangement of Obama's face, it's (duh) Obama's face.

Generally private citizens have copyright over their own likeness, which is why photographers have release forms for their models detailing the rights the model is explicitly waiving for that set of photos. In cases of news photographs of regular people, celebrities, public officials and the like - copyright is implicitly waived - I don't recall the specifics, but there's some legal mumbo jumbo regarding newsworthiness and the "people's right to know" somewhere.

If Obama were to take that AP photo, and use it on his web site without permission, print it on buttons, t-shirts, and coffee mugs - all without permission - then he'd be infringing upon the AP's copyright. If he were to include that photo, without permission, in a coffee table book of dreamy presidential portraits, that would infringe upon the AP's copyright

If he were to hand paint a self portrait using that photo as a reference and the resultant work could be argued to be very very similar to the original, so much so that the new work doesn't stand on it's own, the AP could make a case for infringement, but it would be tricky due to legal precedents of artistic Fair Use.

In the above case however, the AP could rightly argue that while it's neato the POTUS can paint so well, he probably has better things to do.
posted by device55 at 12:20 PM on February 5, 2009

Found this in the 'Related' link.

I'm surprised Fairey has threatened to sue anybody after I read that. I'm still on the fence about AP suing him.
posted by jfrancis at 12:25 PM on February 5, 2009

"Okay then - Shepard Fairey is a commercial artist, then. I just don't think we should pile any praise on him outside of the commercial art realm."

We could argue all day about how many angels could dance on the head of a pin.
posted by krinklyfig at 12:28 PM on February 5, 2009

Gallerist James Danziger has been in touch with both the AP and the photographer, and has an interesting update on his blog.
posted by Ian A.T. at 12:41 PM on February 5, 2009 [3 favorites]

If Obama knowingly and deliberately adopts the pose and expression in the photo and takes a picture of himself on a timer, has he infringed the AP's copyright on that particular arrangement of his face?

I think an argument could be made that there's infringement. The AP can't copyright Obama's likeness, of course. But the "knowingly and deliberattely" part of your question, and assuming he takes pains to faithfully reproduce every detail of the photo, would make me wonder whether it's a derivative work. "Art reproduction" is explicity mentioned in the legal definition. I seem to remember a landmark case involving a photograph of Oscar Wilde. Copyright law is wonky.
posted by naju at 12:43 PM on February 5, 2009

krinklyfig: We could argue all day about how many angels could dance on the head of a pin.

The answer is: None, one or an infinite number.

:)

And yeah, an artist is an artist is an artist.
posted by Kattullus at 12:49 PM on February 5, 2009

Brings to mind Jeff Koon's sculpture "String of Puppies" which was found to infringe on Art Rogers photograph. Rogers v. Koons.
posted by ericb at 12:51 PM on February 5, 2009

Simply taking the duplicated photo wouldn't be an infringement, Obama would have to make use of the image beyond just keeping it on his desk.

If they published the copy-photo in a calendar without permission or attribution, for example, they'd be infringing. If it's just the one photo, it could be argued it was just for educational purposes.

Infringement is about the 'spirit' of the copying - e.g. the copying is done without permission, with the intent of profiting directly off of the copy.
posted by device55 at 12:53 PM on February 5, 2009

You know I did a similar 'block color' image of Dick Cheney with the caption "go fuck yourself" The colors were black and white and orange, I think. Or maybe just three shades of grey. The point is, clearly Fairy ripped ME off and my idea even though it's just sitting on my hard drive and I never even posted it to flickr.

if it's so easy, why didn't the AP photographer take his own photo and turned it into a red white and blue poster with the Obama logo on the lapel, the HOPE sign and the little Andre the Giant in the background? he could have ended in a museum and made a bunch of cash in the process. instead nobody knows who he is.

Some people do know who the photographer is, in fact he came out a few weeks ago and actually said he wasn't going to sue or anything like that, that he didn't want any money, he just wanted some recognition as the guy who took the Obama picture. He doesn't even work for the AP any more and wouldn't see a dime from this lawsuit.
posted by delmoi at 1:31 PM on February 5, 2009

As quoted in the article Ian A.T. linked, the photographer only asks to be credited with a 'thank you' by Fairey. In fact, it's AP that doesn't cut a particularly neat figure, 1. having directly benefited financially due to Fairey's use of the image they hold the rights to, and 2. seemingly trying to wring out less than amicable terms beyond that for itself (certainly not for the photographer's benefit).

The article also leads (via comments) to this interesting entry on Carolyn E. Wright's "Photo Attorney" blog on the legal points involved.
posted by progosk at 2:24 PM on February 5, 2009 [2 favorites]

that article is fascinating. it really seems like fairey's got his work cut out for him, and further looks like he could have avoided a lot of the problems he's currently facing by making a few simple concessions (crediting the photog and AP, for one) to have avoided this. of course, that's kind of his MO, so...
posted by shmegegge at 2:48 PM on February 5, 2009

Transformative. Fair Use. Moving on.

It's a new day and all that, right?
posted by basicchannel at 2:50 PM on February 5, 2009 [1 favorite]

All things considered was discussing that tonight with an intellectual property lawyer. My impression was that the lawyer would side against the AP, based on the photo being a news image that was substantially altered in Fairey image. Also, it would bolster the AP's case if they showed that people were choosing the Fairey image instead of the photo, but it's unlikely that the photo was getting much use prior to the image being protected. So there wouldn't be infringement.
posted by saffry at 4:14 PM on February 5, 2009

hmmmm protected should be created.
posted by saffry at 4:15 PM on February 5, 2009

'However it's amusing to me that people, especially those schooled in the arts, continually and constantly perpetuate a 'no true Scotsman' fallacy each time they encounter art they don't like by claiming it's "not art"'

My experience is that it's people not schooled in the arts who labour under the misconception that something being art implies that it is praiseworthy, that someone being an artist implies that their work has merit.

If art is a big part of your life, you kind of have to be able to distinguish between what's good art and what's shit art, or you're in big trouble. And that presupposes the concept of art that is rubbish.
posted by -harlequin- at 4:22 PM on February 5, 2009 [3 favorites]

Is anyone else terrified with the state of our economy being so bad that the Associated Press now needs to do a publicity stunt to get free news coverage?
posted by XQUZYPHYR at 5:11 PM on February 5, 2009

Haystacks, Monet. Haystacks, Lichtenstein.
posted by ersatz at 5:17 PM on February 5, 2009

Shepard Fairey is an artists. No reason to make this commercial vs "whatever we accept as an artist" distinction.
That said, it is funny that when money becomes involved lawsuits pop up all over the place.
posted by Rashomon at 5:35 PM on February 5, 2009

Okay, I meant "Shepard Fairey is an artist".
Gotta stop talking on the phone as I post a comment.
posted by Rashomon at 5:37 PM on February 5, 2009

ersatz, Monet's Haystacks was decidedly in the public domain by the time Lichtenstein used it. A more apt comparison would be his works based on/ripped off from contemporary comic book art.
posted by zsazsa at 5:40 PM on February 5, 2009

The AP may not even own the copyright to the image.

The photographer, Mannie Garcia, is asserting ownership. Apparently he was not working under an AP contract at the time the image was made.
posted by joe vrrr at 7:28 PM on February 5, 2009

zsazsa, good point. I was thinking how modern copyright law with "70 years after the death of the author" would apply if Roy's work weren't considered fair use. His comic book work would be a more obvious example, yes.
posted by ersatz at 4:03 AM on February 6, 2009

In related news --

Shepard Fairey exhibit opens today at the ICA|Boston.

Interview with Fairey (embedded video).
posted by ericb at 11:19 AM on February 6, 2009

In 50 years time we'll all look back and wonder how anyone in the Twenty-First Century could defend copyright with a straight face.
posted by mr. strange at 4:51 PM on February 6, 2009

Shepard Fairey arrested on two outstanding warrants in Boston
posted by the_bone at 8:46 AM on February 7, 2009

Shepard Fairey Sues Associated Press Over Obama Poster. Full text of story:

Shepard Fairey, the visual artist who created the iconic “Hope” poster of Barack Obama, has filed suit against The Associated Press, according to court documents. Last week, The A.P. said in a statement that the poster, based on an A.P. photograph taken by Mannie Garcia in April 2006, requires its permission for use of the image, and that it is seeking credit and compensation for its use in Mr. Fairey’s works. In the suit, filed in United States District Court in New York, lawyers for Mr. Fairey are seeking a declaratory judgment which would rule that Mr. Fairey’s poster does not infringe on The A.P.’s copyrights and is protected by the Fair Use Doctrine. The complaint also seeks an injunction enjoining The A.P. from asserting its copyrights against Mr. Fairey, his company, Obey Giant, and anyone in possession of the poster or works derived from it, as well as a jury trial.

posted by Kattullus at 9:26 AM on February 9, 2009

Milton Glaser weighs in.
posted by progosk at 2:28 PM on February 9, 2009

Was Shepard Fairey Arrested to Embarass the Mayor of Boston?
posted by lunit at 7:11 AM on February 11, 2009