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Wednesday, January 21, 2009

A question for IP folks

If you are the photographer who took this photo, would you have any claims against the artist who made this image without your permission or license?  Further information over at Swampland.  A quote from the photographer: "As gentlemen we can work this out. . . . I don't want it to get ugly."

UPDATE: Here's the artist (Shepard Fairey) on the Colbert Report.  What is his liability if he didn't make as much money as he could have?

Posted by Matt Bodie on January 21, 2009 at 03:34 PM in Current Affairs | Permalink

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Answer: yes. It's a derivative work, just as a translation of a french book to english or an adaptation of a play to a movie is a derivative work, and copyright law gives copyright holders the exclusive right to produce derivative works.

Posted by: anon | Jan 21, 2009 3:42:13 PM

Yes. See, e.g.:
http://www.harpers.org/archive/2007/02/0081386

Posted by: Deanna O. | Jan 21, 2009 4:07:19 PM

Matt:
I agree with the others that the poster is a "derivative work." There's only liability, however, if there's a valid copyright in the photo. Sadly, given the degraded state of copyright law's originality standard - which everyone thinks requires only the barest modicum of creativity - the original photo passes the originality threshold. (As you can tell, I think copyright's originality standard is set too low, or, put another way, the conventional wisdom on where it's set should be revisited).
Joe Miller

Posted by: Joe Miller | Jan 21, 2009 4:27:48 PM

But it's highly transformative... see, there's a "O" logo in the second image. See??

Posted by: Dave! | Jan 21, 2009 4:32:25 PM

Certainly it's a derivative work, which would violate the owner's exclusive right of adaptation, but this doesn't account for whether there's an affirmative defense--namely fair use. (Dave!'s comment about transformativeness gets to this.) That seems to me a close call, and the answer to these questions are always a bit muddy given the notoriously indeterminate four-part statutory test for fair use.

I think Dave! was joking about the photo being transformative, and admittedly it's not that much of a change (plus changes in color and style have been held not fair use before, see Rogers v. Koons). On the other hand, the original photographer had NO IDEA his work was the basis for the "Hope" posters until someone told him so a couple days back. There's probably a decent argument though that the poster cut into the photograph's market share; not by supplanting sales of the original but depriving the first author of licensing fees (which could have been a real goldmine given the viral popularity of the second work).

Tough call. Not sure what I think about this one, though if the poster artist made a bundle he's probably wise to just settle for some reasonable sum and avoid the morass of litigation.

Posted by: Dave | Jan 21, 2009 5:23:51 PM

So what is the liability if the artist basically allowed other folks to use the artist's image for free? He was on the Daily Show the other day and said he let others use it for free unless it was a really commercial purpose. I have no idea what the numbers are, but let's say the artist has made $10,000 or so in licensing on some very limited projects but could have made $100,000 or $1 million if he had commercially licensed it to the full extent. What would the photographer get?

Posted by: Matt Bodie | Jan 21, 2009 5:36:19 PM

Correction: It's Colbert, not the Daily Show. I've added the clip to the post.

Posted by: Matt Bodie | Jan 21, 2009 5:47:47 PM

Interesting. I would have thought the majority view would lean towards no infringement here, but given the above comments, perhaps I'm wrong.

There's a general presumption, shared even by courts, that all photographs are copyrightable. But given the theory of what's supposed to be the copyrightable in the photograph, I don't think the poster appropriates enough of that stuff to make it substantially similar. Judges and juries alike have real difficulty separating uncopyrightable stuff (Obama's face) from copyrightable stuff, but I think as a matter of doctrine Fairey should be OK on this claim. (I thought I read somewhere that the poster looks pretty similar to another poster of someone else entirely, but that's a different problem.) I'm not going to talk about derivative works, since as I just confessed to my Copyright class today, I don't understand derivative works as an infringement claim, and I'm not sure anyone else does either.

What's supposed to be copyrightable in the photograph is not just that the photographer took it, but the creative expression that the photographer added to it. That might include things like framing, lighting, pose, background, depth of field, angle, etc. But in this case I would suspect that the photographer had control over only some of that, and much of it is missing from the poster. The framing is different. I'm not sure the angle is the same either -- the photo seems a little lower. There is no depth of field or background in the poster. The lighting is obviously far different in the poster. The only thing that's similar is the pose and Obama's face. But both are Obama's, not the photographer's.

So I say it's not substantially similar to the copyrightable expression, which is what I think the photographer would need to show, under either a reproduction or derivative works claim.

Posted by: Bruce Boyden | Jan 21, 2009 6:11:12 PM

Matt, to answer your damages question, if found liable Fairey would be on the hook in your hypo for contributory and/or vicarious infringement, but not direct infringement. The damages would either be actual damages plus the infringer's profits, or a statutory damages award of up to $30,000 (I doubt there's willful infringement, but if so then the max is $150,000). If a million dollars of lost licensing profits could be shown from Fairey's authorization of free copies, then that plus $10,000 is the award.

Posted by: Bruce Boyden | Jan 21, 2009 6:31:31 PM

I am about as pro-plaintiff as you find in academia, but I would be hard pressed to call this infringement. I agree with Joe and others that originality requirements are low (though I don't think this is new - the Oscar Wilde case is pretty old, no?), but like Bruce, none of the original elements of the photo (if there are any) exist in the poster. If you follow the "abstraction-filtration-comparison" test, you would come out just like Bruce does - this is a photo of Obama, who is fair game. Once you filter out the likeness, there is nothing left of the originality in the photo when compared with the poster.

If I wanted to really push the envelope, I might even apply Gracen, which holds that a depiction that is as true as life as possible must be denied copyrightability. (I disagree with Gracen here: http://papers.ssrn.com/abstract=885341 but every so often it gets cited.)

Posted by: Michael Risch | Jan 21, 2009 7:20:36 PM

I think Bruce and Michael make great points about whether the poster copies original expression embodied in the underlying photo. I don't think we can be sure, under current doctrine, that the photographer was so lacking in control over things like lighting that the photo fails to embody original expression. After all, the photographer could have chosen a different filter, or used some other digitally generated effect to produce the photo. And it's true that then-Sen. Obama's facial expression was, well, his expression. But the photographer chose to shoot the image at that moment, not some other moment. So, didn't he choose that too?
I raise these issues not because I disagree with Bruce or Michael's observations, but because I think we think about originality in a wrong-headed way, based on author subjective choice rather than author objective distance from conventional expression in the genre.

Posted by: Joe Miller | Jan 21, 2009 9:08:45 PM

You have to consider how Shepard Fairey works. The portrait of Obama is a stencil portrait collage. He scanned the image or printed it off and then created a stencil over the image of the photograph. He probably used a stencil pad and a craft razor to cut it line for line with the image. That means that most of the lines of Obama's face will match directly with the stencil. Without the image and the stencil the portrait would just be fields of color. So if you think of it like that the blunt of the work comes directly from the Garcia photograph.

Posted by: Basement | Jan 27, 2009 4:37:43 AM

I'll add that he did the same thing with a book about Cuban artists. He made a stencil over an image of a poster by Rene Mederos, added a fews things, and then put the new image on shirts called Cuban Rider. An art historian discovered his infringement and Fairey ended up settling out of court over the infringement.

Posted by: Basement | Jan 27, 2009 4:39:57 AM

I understood that all works including photographs were copyrighted to the person who created them & that they dont need the symbol or a 'copyright by John Smith' on them, that once a picture was taken or painted or a story finished it was 'copyrighted'. I thought that the Library of Congress REGISTERED the copyright but that the copyright was an automatic thing?? No?

Posted by: Maria | Jan 27, 2009 2:52:32 PM

All works are copyrighted but you have to have the copyright officially registered to seek statutory damages. If the image is not registered you have about three months to register after finding out about the infringement. I'm certain the photograph was registered.

Fairey's use of the photograph would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose. Look out how some artists are viewing it, http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html

Posted by: Basement | Jan 27, 2009 8:07:39 PM

Transformation has to be examined on a case by case basis. One of the key points of transformation in law is that it is given more weight than commerciality in court. The verdict depends on the taste of the jury or the judge. The first major case for transformation took place with Campbell v. Acuff-Rose Music. The judge sided with 2 Live Crew because he felt that their use of “oh, Pretty Woman” by Roy Orbison would not confuse the public to be mistaken for the original song because Orbison was a famous musician. The judge also found that it would be unlikely for any artist to find creating transformative works a lucrative derivative market. I think the $700,000 that Shepard Fairey’s Hope poster has made and the millions that Richard Prince has made is a sign of the opposite. I don’t think the judge at that time would have had the same verdict if 2 Live Crew had used music by a lesser known artist.

Posted by: David | Feb 1, 2009 5:51:57 PM

Fairey seems to have a history of taking other peoples copyrighted works and adding his "art" to the top of it. It's still an infringement of the orginal artists copyright even though Fairey changed the colors.

Posted by: Bec Thomas | Feb 24, 2009 10:44:30 PM

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