awoodcock, Tue, February 10th, 2009
Fairey said he created the image after doing a Google image search for the then-presidential hopeful and choosing a photo where Obama looked inspired and hopeful. In another version of the story, he said an “unknown Obama staffer,” gave him the image. Either way, the image he chose was taken by freelance photograher Mannie Garcia for the Associated Press before Obama announced his intentions for running for President.
AP is now suing Fairey for the use of the copyrighted photo.
I’m not a painter (I’m horrible at drawing) but I consider myself an artist.
I have an interest in graphic design and I'm fascinated by creating, new, unique images from everyday photographs.
Google image search is used by many amateur and professional designers to find a base image to work with. You want to make an illustration of a sailboat? Find one on Google and go from there.
It’s not an old concept. Before there was photoshop, illustrator and a plethora of other programs designed for the manipulation of images, painters and other artists based their works on photographs.
The US government understood this when they created (and edited) the copyright laws; They included a provision called “fair use.”
Fair use excludes some items from copyright protection. For example, if you are doing a book review, you can quote a passage in that book without the author's permission. Similarly, fair use protects not-for-profit use and using a portion of another work in certain contexts.
Fairey’s work took the image and munipulated it (at the request of the Obama campaign by the way) to create an image that would illustrate the campaign.
I’m sure if Fairey could have had Obama sit while he illustrated the image, he would have.
But instead he used an image where Obama looked reflective and hopeful. I’m sure there are dozens of photos circulating that would have served the purpose equally well.
When I started to write this column, I was passionately pro-Fairey. Of course it’s fair use! But as I began to think deeper about the issue, I realized that, like most arguments, it’s not as simple as it may seem.
First of all, the fair use provision of the copyright laws is about as clear as the censorship of obscenity laws— the “I can’t define it, but I know it when I see it” way of deciding. This makes it hard to determine what is fair use and what is not. Fair use depends on a number of factors including the amount of work used and if the second work is for a profit or not-for-profit use.
It’s clear when the images are side-by-side that one came from the other. Obviously, the colors and background changed, but is this considered a derivative work or an artist interpretation.
The next question is, was this a not-for-profit use? Fairey argues that he didn’t make any money off of the image because he used proceeds from it to buy more posters, buttons, etc. in support of then-presidential hopeful Obama. This makes sense until you look at it the way John Harrington, one of the top Washington, D.C. photographers, does.
Harrington is a friend of Mannie Garcia and a photographer who has a lot of experience with political figures. His opinion is that regardless of how Fairey decided to spend the money, he still made it.
In his blog on photobusinessnews.com, Harrington writes:
“It does not matter that the infringer spent all those profits, or that they ‘put all the money back into making more stuff...’, since that is a decision they made, it does not dismiss the notion that those profits are due the copyright holder. That’s like not making a bank robber pay back the spoils of a heist because he spent it all. It does not matter that he spent it on an orphanage’s roof (a la Robin Hood), it still must be repaid.”
It was Harrington, who happens to be my brother-in-law, who got me thinking in a different way to begin with.
As I began to write about big corporate AP bullying poor street artist Fairey, I wondered what Harrington thought of the whole issue. Before I even picked up the phone to call him, I started to see Garcia as a real person rather just a piece in this whole puzzle. If it were Harrington whose work was used, would I be so passionate to defend the artist?
Then I started to think of fellow Eagle-staffer Ellen Leahy whose work I also admire. If Leahy had taken a photo of an apple tree (a favorite subject of hers for reasons unknown) and an artist had seen it and created a rendition that then became the symbol for New York State Apple Growers, would that be acceptable without her permission?
I finally realized that although the money may be a factor, as an artist it’s not the money that is the heart of the issue here. Artists are creators and just as I have said creating a newspaper is like creating a child, I imagine photographers have that same connection to their work.
When your work shows up in one of the most significant events of our time and no one knows your name, you would tend to want to fight, or at least I would.
I would love to hear from the CNY artist community on this issue. So, please, send feedback to oneidapress@cnylink.com.
