On Lessig's blog: "As mentioned, the Fair Use Project at Stanford's CIS is representing Shepard Fairey in his suit against the AP. To that end, we'd be grateful for some net-based knowledge. How many photos are there 'like' the beautiful photograph that Mannie Garcia took (the one on the left; the one on the right is a CC licensed photo taken by Steve Jurvetson)? Can you send any examples to shep_use@pobox.com?"

Crowd-sourcing a "fair use" case

Previously:

  • foxtails

    This sounds like a job for…TinEye!

  • IndigoVapour

    @ #13 ditto your ditto.

    Also, yeah, given that he has admitted using the photo in question, and that fact is clearly visible in the exact similarity (colour effects aside), what is the use of saying ‘here are some other photos that look a bit similar, but not similar enough to cause any doubt as to the fact that this first photo was the source’?

    And thirdly, yes, the photographer who took that Che photo later enforced his copyright on the work. You might see it on cheap crappy t-shirts, from below-radar operators, but try using it on billboards to sell rum or cigars or something and see how far you get.

  • Phikus

    Alessandro@30: You’re right. When you squat and push out a Cleveland steamer like that, it is not considered a donation.

  • Alessandro Cima

    This talk of Fairey having donated his image to the Obama campaign is absolute drivel. No artists donates a single damned thing. Rubbish. You make a picture and you get known for it. People stand in front of it and go, ‘Wow! Look, Mom! It’s just lovely propaganda!’

    That’s payment. It’s reputation. It’s career. Nothing is free. Especially art.

    Donated. You think I’m donating these comments? Ha! Dummy.

  • Pam Rosengren

    They also want examples of photographs being turned into artwork. An example I can think of straight away is the photo of Ché Guevara that is used all over the place as the iconic revolutionary, on clothes, posters, badges etc and even in advertising. None of that was done with the permission of the photographer, but he didn’t mind.

    There are many more of these.

  • Phikus

    Superduper27@2: Citation please, or it didn’t happen.

    Willow: Several people (myself included) made the same point the in the last SF thread.

  • rp0806

    As I said in the other thread, this has nothing to do with fair use. Fairey’s work isn’t commenting on or satirizing the original photo.

    At the same time, AP’s claim is meritless — Fairey didn’t copy any of the photographer’s original creative expression. AP can’t claim a copyright in portraits of Obama.

  • skazat

    Actually, Pam,

    http://www.commondreams.org/headlines05/0829-01.htm

    The family of Ché DOES mind.

  • elguapostrikes
  • Brindle

    I work both as a photographer and a designer and can see both sides of the arguement here. The ‘many photos look similar’ angle doesn’t work as the illustration is blatantly done from that exact photo, without almost any variation.

    The photographer is well within his rights to not be happy with someone plagiarizing their work, without permission when the photo isn’t under a CC license. Although suing is definitely being heavy handed. The illustrator should have more sense than to just exactly copy a high profile photograph from a high profile photographer of a high profile person!

    And in reply to PAM above, that’s all fine because the photographer didn’t mind. However this is different as photographer does mind and is well within his rights to do so. Maybe if the illustrator had contacted him for permission before hand stating that he wanted to use the image as a base or inspiration and it wasn’t for profit etc, this might have all turned out a bit differently.

    Often designers and illustrators email me asking to use my photography in their artwork and 9/10 times I give the ok. What starts things out on the wrong foot is when you find your work being used without your permission, passed off as someone elses often with very little changes.

    A little bit more thought, communication and respect at the outset wouldn’t go amiss.

  • Alessandro Cima

    Elguapostrikes,

    Excellent! Yes. Perfect.

    Here’s a link to a little comment thread from yesterday:

    http://boingboing.net/2009/02/17/south-park-iphone-ap.html

    My comment is #11 on that thread. I was starting my riff on the very obvious fascism spilling out of the Fairey Obama image. There are of course other examples. I am simply appalled that a significant number of people do not seem to notice what’s going on with the Obama image. The hyper-corporate, logo-oriented, simplified shapes and colors, the noble, high gaze shooting skyward. What does it all remind you of? Come on man it’s easy! Lift your gaze. Lift your arm. To the sky. Your leader. Easy to see from blocks away.

    This Fairey dude is one scary fellow. I’d leave the room if he were in it.

  • the Other michael

    Shepherd Fairey, Author of the Quixote.

  • Anonymous

    I’m sorry, but I just can’t support Fairey on this one.

    While he’s sometimes a very creative guy with some great ideas, a lot of what he does is no better than the kinds of theft that Todd Goldman was vilified for here on BoingBoing.

    Just because Fairey steals artwork from dead people doesn’t make it any more right than Todd Goldman stealing artwork from internet cartoonists.

  • justONEguy
  • Anonymous

    Here’s one from the National Review, of all places:
    http://nrd.nationalreview.com/?q=MjAwNzEyMDM=

  • Kevin Kenny

    @Brindle

    Read the linked articles.

    The photographer has said in public that he doesn’t mind. The Associated Press is raising the stink – and claiming that the photograph was “work for hire” so that it can negate the photographer’s permission. (I concede that the permission was given after the fact.)

    Both artists are the losers here. Actually, nobody wins: the AP takes a public relations black eye, both artists face legal fees (don’t think García won’t need his own lawyer for his depositions), and Fairey is well-nigh judgment-proof, so the AP won’t see much compensation at the end of the day. Really, what are they going to do, try to impeach Obama for contributory infringement?

    Also, I was struck by the fact that the Fairey print removes an irregularity in the hairline above the right eye that is present in the García photograph but not the the Jurvetson one. I noticed that detail before I noticed that the illumination angle matches the García photo.

  • Trent Hawkins

    maybe Tin Eye might help: http://tineye.com/

  • superduper27

    Why don’w we start an thread for the countless artists that Shepard Fairey has sued for using his images?

    Im guessing that probably wouldn’t be cool.

    Or how about the few times he’s been caught redhanded using other artists entire pieces of work, didn’t give them credit and eventually settled with them out of court when they noticed?

  • smonkey

    “You Thought We Wouldn’t Notice” .com,
    has a nice bunch of posts about Fairey.

    The discussion there gets nicely into the nitty-gritty of art, appropriation and being a douche-bag* (all things that apply to Fairey).

    http://youthoughtwewouldntnotice.com/blog3/?s=fairey

    *”being a douche-bag” here meaning the art of appropriation/stealiing and then turning around and suing appropriators/thieves of your own work. Hypocritical would have worked but doesn’t quite have the panache of douche-bag. One use “cad” or “bounder” if one would so prefer.

  • bfarn

    Well I begrudgingly support Fairey in this case, but I would be greatly comforted by a legal claim against him on the grounds of General Dickishness.

  • Avram / Moderator

    Except the photo on the left has the same light source and shadows as the Fairey artwork, and the one on the right doesn’t. (Check out the shadow on Obama’s collar, and on his neck.)

  • TEKNA2007

    You mean, other than the one Fairey already said he used as the basis?

    I think this is a case of fair use, but how is the presence of similar photos relevant?

  • TheWillow

    If Warhol’s Marilyn Monroes are copacetic , I cannot possibly fathom why this isn’t.

  • Anonymous

    Photographer and online-sharing proponent Lou Lesko has a good point: http://blog.livebooks.com/2009/02/fairey-swipe-was-fair-lack-of-credit-was-not/

  • Alessandro Cima

    I think one should be able to recognize a ‘douche-bag’ (I always hear the Bronx in that term for some reason) purely from the artwork. A douche-bag always makes a full confession in the work.

    Where are the good art critics? My god, are they all dead? Is there a single one left who still knows how to yield a switchblade?

  • Anonymous

    It doesn’t matter if the photographer gave permission (which, as I read it, he didn’t) as the photo was taken as work for hire.

    I agree with the general responses. An artist who is going to sell work and sue people who infringe his copyright ought to respect the copyrights of others.

  • Alessandro Cima

    I could not disagree more with defending this artist’s use of a photojournalist’s image without permission or even a simple credit to the journalist. This guy Fairey is just creepy. His preemptive lawsuit against AP totally confirms that.

    I am fully in support of AP’s copyright claim. I mean, the guy even copied the shadow lines on Obama’s face for god’s sake! Why couldn’t this artist have said a simple, “Hey man, really nice photo, I’d like to use it for an Obama poster.”

    It is absolutely a work for hire. AP hired the photographer and he took the picture for them. AP is defending their photographer and I’d work for them any day they asked. They are doing exactly the right thing. And, by the way, I have not seen another image that even remotely comes close to the one that was snatched. The example shown on this blog is just completely in left field.

    If he took my picture and added colors to it and called it his work, I’d bust his pseudo-street butt in half (with big nasty words of course).

    I have serious reservations about this colorized image that have nothing to do with copyright, but that is another story.

    Good artists steal all the time. Sometimes they also get caught.

    Go AP!

  • elguapostrikes

    #2
    ditto.

  • Phikus

    JustOneGuy@23: I remember this story, as the other artist is from my hometown, Austin. I can understand why Fairey objects to the appropriation of his image here because it is directly stealing his own line work and pasting a SARS type mask on the face. This to me is a whole different animal than Fairey’s work from a photograph in the public domain, which completely changes the look and feel, as eloquently described best imho, by Bardfinn in the other thread. The other instances provided by SMonkey totally rip Fairey’s style and I wholeheartedly agree he has the right to protect it.

    Got anything for Superduper’s other assertion:

    “Or how about the few times he’s been caught redhanded using other artists entire pieces of work, didn’t give them credit and eventually settled with them out of court when they noticed?”

    I didn’t think so.

  • Phikus

    Anon@26: As for Lou Lesko’s assertion: On NPR, Fairey said he diligently attempted to find out who the individual AP photographer was for attribution but could not. Had it been clearly credited by AP, then he would have given “click-through” credit.

    People also seem to be forgetting, once again, that Fairey donated the work to the O campaign. Those appropriating SF’s style used it for advertising or on a product for sale. To me this makes it a whole other ball of wax.

  • Anonymous

    BoingBoing… attempting to say that Obey Giant profiteer Shepard Fairey isn’t directly copying work, in direct opposition to his own statements, just because you like him? For shame. Causes should probably be taken up on a issue by issue basis. This is like The Hurricane.

    The artistic content of his work and whether his adaptation constitutes a substantial addition or change to the original photograph, its use as art and value in society, the legality and ramifications of appropriating art in new works are all valid and important discussions, but trying to rally support on a logical and legal cul de sac because the court case makes a popular “counterculture” artist look bad? For god’s sake gag me with a $30 OBEY t shirt and tell me I’m making a statement about consumerism. I have a statement you may have missed from Fairley on capitalism “It works, bitches.”