A question of Fairey use

The Associated Press is alleging that artist Shepard Fairey infringed on its copyright of an Obama photograph when he turned it into oh, only the single most recognizable image of the 2008 campaign. The AP wants not only credit but also compensation for the photograph. Some bloggers suggest that this is part of a recent trend on the part of the AP to police the boundaries of its domain.

Fairey (and his friends at Stanford University 's Fair Use Project) say his appropriation of the news photograph for the poster was a classic example of fair use. In an article on the controversy, Fairey says he hasn't directly made money from the image, though he has encouraged folks who asked permission to use the poster to make donations to groups like the National Endowment for the Arts.

It's likely that the AP discovered its connection to the poster only recently; bloggers have been busy trying to locate the source photo for the image. Philadelphia Inquirer photographer Tom Gralish finally figured it out a few weeks ago, and announced that the image had been made by Mannie Garcia, a photographer who was working temporarily for the AP when the photo was made.

But the plot thickens: Matthew Saroff at TPM reports that Garcia didn't have a signed contract with the AP because he was only working there temporarily. Because of this, Garcia believes that he, not the AP, holds the copyright to the image.

All of this begs the question: does it even matter who owns copyright to the source image? DailyKos suggests Fairey's poster is a good example of a "derivative work," or a new work which includes previously published material. Such works transform the original in distinctive ways. One could certainly argue that the Fairey image does this. On this reading, it doesn't matter who the copyright owner of the Garcia image is: Fairey's image is different.

Offering his own commentary on the controversy, Ryan Davis at Huffington Post offers a parallel story of copyright ownership gone wild, involving Tennessee Williams, Hurricane Katrina, and a drag queen.

As for crediting the image above, given all the confusion I'll just say: "Photoshop by Cara."

Comments

[Lu]

The AP apparently didn't have Fr. Malone for Business Law. His single most important lesson? "Life isn't fair"!