Example of Copyright Infringement
Yes, the photographer took the photo and owns this particular photograph, but he can not own the image of Obama. The artist painted the picture from the photo he did not own, and he too does not own the image of Obama.
http://chicagoist.com/2009/02/05/ap_in_a_snit_over_iconic_obama_post.php
This art was made from a photograph of President Obama. The artist’s name is Shepard Fairey. The photographer’s name is Mannie Garcia. This is what is called copyright infringement. Now, Shepard is in trouble. The Associated Press sued artist Shepard Fairey. It is said that Mannie Garcia wants in on Fairey’s lawsuit.
The painting is a decent painting and the photograph is a decent photograph. Putting the two together, I would not consider it as copyright infringement. The artist did not make an exact copy of the photo. If the artist had made an exact copy of the photo to sell it, print it, or to even change the colors and quality of the photo, then I would consider it as copyright infringement. If the artist took his own hand and made every line and painted every color, he should not be sued. The photograph is just a picture taken with a camera. There is a difference in a painting and a photograph.
It is crazy to me to sue a person over somebody else’s face and especially the president’s face. Somebody else’s opinion may be different, but I believe that President Obama should have the final say so of his own image. What if Obama was not president and did not want this picture taken? Then he could sue them both. He could sue the photographer and the artist. Yes, the photographer took the photo and owns this particular photograph, but he can not own the image of Obama. The artist painted the picture from the photo he did not own, and he too does not own the image of Obama. The Associated Press does not own it either. There are many photos similar to this photograph. Obama wears a suit in many photographs. The photograph and the poster are not exactly the same in detail, and this is what they call copyright infringement.
Liked it
22 Comments
sweetchild, posted this comment on Jul 24th, 2009
No, this is not a copy infringement. There nothing wrong with that because Obama is a public figure and as what you’ve said the picture is descent.
Gail Nobles, posted this comment on Jul 24th, 2009
Thank you both for your comments and for taking the time to read my article.
Catelin Hoover, posted this comment on Jul 25th, 2009
Gail what an interesting article…yet as you said…this is not an issue of copyright infrigement. Good job.
Adam Henry Sears, posted this comment on Jul 25th, 2009
Some people love to overreact, don’t they? This is not copyright infringement, this is merely art imitating life. Thanks for sharing this, Gail.
Ruby Hawk, posted this comment on Jul 25th, 2009
How can a photographer get a copyright on a picture of someone’s face? It doesn’t sound lawful.
M Johnston, posted this comment on Jul 26th, 2009
I won’t dispute that Shepard Fairey’s poster is a distinct work from the photo, but that doesn’t mean it’s not copyright infringement.
For those who may be interested, there are several key points of law that make Shepard Fairey’s use of the AP/Mannie Garcia photo problematic.
The thing is, just because the poster is stylized, there’s an issue of it being based on Mannie Garcia’s photo.
First, a brief overview:
Under US law, (Title 17 USC) authors/creators of works are afforded certain exclusive rights to the use and control of those works.
In this particular case, we’re interested in US law dealing with the creation of derivative works, which Title 17 defines as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.”
It’s an important distinction since, legally, the problem isn’t Shepard Fairey “copying” or reproducing the AP/Mannie Garcia photograph, but creating a new derivative work based on that photograph.
Under existing law, the right to legally create derivative works (in this case, a stylized poster from a photograph) is one of those exclusively retained by the creator of the original work (in this case Mannie Garcia or the AP in the case of a work-for-hire situation.)
It’s worth noting that Shepard Fairey isn’t disputing that his poster is a derivative work of the AP photo. Instead, he claims that it’s a permissible “fair use” of the copyrighted work.
Which brings us to 17 USC § 107 which defines the scope of fair use as limited to purposes such as “criticism, comment (on the original work, this is often how parody is permitted), news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
I would also note that the test used to determine whether a given use (such as criticism, comment, news reporting, etc) is fair use takes in to consideration factors such as the purpose of the use (commercial or noncommercial), the nature of the original work, extent of the original work used and the impact on the market or market value of the original work.)
While the test is somewhat subjective, in looking at Fairey’s use of the AP photo, it’s not difficult to see that the use is commercial (Fairey and the campaign profited from the use of Fairey’s work), it doesn’t meet a permitted use under the Fair Use exception, and almost the entire totality of the photo is used in the derivative work.
Add to that the negative impact that the derivative work has arguably had on the potential market for Garcia’s photo and….
M Johnston, posted this comment on Jul 26th, 2009
I won’t dispute that Shepard Fairey\\\’s poster is a distinct work from the photo, but that doesn\\\’t mean it\\\’s not copyright infringement.
For those who may be interested, there are several key points of law that make Shepard Fairey\\\’s use of the AP/Mannie Garcia photo problematic.
The thing is, just because the poster is stylized, there\\\’s an issue of it being based on Mannie Garcia\\\’s photo.
First, a brief overview:
Under US law, (Title 17 USC) authors/creators of works are afforded certain exclusive rights to the use and control of those works.
In this particular case, we\\\’re interested in US law dealing with the creation of derivative works, which Title 17 defines as \\\”a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.\\\”
It\\\’s an important distinction since, legally, the problem isn\\\’t Shepard Fairey \\\”copying\\\” or reproducing the AP/Mannie Garcia photograph, but creating a new derivative work based on that photograph.
Under existing law, the right to legally create derivative works (in this case, a stylized poster from a photograph) is one of those exclusively retained by the creator of the original work (in this case Mannie Garcia or the AP in the case of a work-for-hire situation.)
It\\\’s worth noting that Shepard Fairey isn\\\’t disputing that his poster is a derivative work of the AP photo. Instead, he claims that it\\\’s a permissible \\\”fair use\\\” of the copyrighted work.
Which brings us to 17 USC § 107 which defines the scope of fair use as limited to purposes such as \\\”criticism, comment (on the original work, this is often how parody is permitted), news reporting, teaching (including multiple copies for classroom use), scholarship, or research.\\\”
I would also note that the test used to determine whether a given use (such as criticism, comment, news reporting, etc) is fair use takes in to consideration factors such as the purpose of the use (commercial or noncommercial), the nature of the original work, extent of the original work used and the impact on the market or market value of the original work.)
While the test is somewhat subjective, in looking at Fairey\\\’s use of the AP photo, it\\\’s not difficult to see that the use is commercial (Fairey and the campaign profited from the use of Fairey\\\’s work), it doesn\\\’t meet a permitted use under the Fair Use exception, and almost the entire totality of the photo is used in the derivative work.
Add to that the negative impact that the derivative work has arguably had on the potential market for Garcia\\\’s photo and….
M Johnston, posted this comment on Jul 26th, 2009
I will not dispute that the Shepard Fairey poster is a distinct work from the photo, but that doesn’t mean it’s not copyright infringement.
For those who may be interested, there are several key points of law that make the use of the AP/Mannie Garcia photo problematic.
The thing is, just because the poster is stylized, there’s an issue of it being based on the Mannie Garcia photo.
First, a brief overview:
Under US law, (Title 17 USC) authors/creators of works are afforded certain exclusive rights to the use and control of those works.
In this particular case, we are interested in US law dealing with the creation of derivative works, which Title 17 defines as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
An important distinction since, legally, the problem is not Shepard Fairey copying or reproducing the AP/Mannie Garcia photograph, but creating a new derivative work based on that photograph.
Under existing law, the right to legally create derivative works (in this case, a stylized poster from a photograph) is one of those exclusively retained by the creator of the original work (in this case Mannie Garcia or the AP in the case of a work-for-hire situation.)
It is worth noting that Shepard Fairey is not disputing that his poster is a derivative work of the AP photo. Instead, he claims that it represents a permissible fair use of the copyrighted work.
Which brings us to 17 USC § 107 which defines the scope of fair use as limited to purposes such as criticism, comment (on the original work, this is often how parody is permitted), news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
I would also note that the test used to determine whether a given use (such as criticism, comment, news reporting, etc) is fair use takes in to consideration factors such as the purpose of the use (commercial or noncommercial), the nature of the original work, extent of the original work used and the impact on the market or market value of the original work.)
While the test is somewhat subjective, in looking at the use of the AP photo, it is not difficult to see that the use is commercial (Fairey and the campaign profited from the use of the work), it does not fall under a permitted use under the Fair Use exception, and almost the entire totality of the photo is used in the derivative work.
Add to that the negative impact that the derivative work has arguably had on the potential market for the original Mannie Garcia photo and….
Mark Johnston, posted this comment on Jul 26th, 2009
I will not dispute that the Shepard Fairey poster is a distinct work from the photo, but that doesn\’t mean it\’s not copyright infringement.
For those who may be interested, there are several key points of law that make the use of the AP/Mannie Garcia photo problematic.
The thing is, just because the poster is stylized, there\’s an issue of it being based on the Mannie Garcia photo.
First, a brief overview:
Under US law, (Title 17 USC) authors/creators of works are afforded certain exclusive rights to the use and control of those works.
In this particular case, we are interested in US law dealing with the creation of derivative works, which Title 17 defines as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
An important distinction since, legally, the problem is not Shepard Fairey copying or reproducing the AP/Mannie Garcia photograph, but creating a new derivative work based on that photograph.
Under existing law, the right to legally create derivative works (in this case, a stylized poster from a photograph) is one of those exclusively retained by the creator of the original work (in this case Mannie Garcia or the AP in the case of a work-for-hire situation.)
It is worth noting that Shepard Fairey is not disputing that his poster is a derivative work of the AP photo. Instead, he claims that it represents a permissible fair use of the copyrighted work.
Which brings us to 17 USC § 107 which defines the scope of fair use as limited to purposes such as criticism, comment (on the original work, this is often how parody is permitted), news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
I would also note that the test used to determine whether a given use (such as criticism, comment, news reporting, etc) is fair use takes in to consideration factors such as the purpose of the use (commercial or noncommercial), the nature of the original work, extent of the original work used and the impact on the market or market value of the original work.)
While the test is somewhat subjective, in looking at the use of the AP photo, it is not difficult to see that the use is commercial (Fairey and the campaign profited from the use of the work), it does not fall under a permitted use under the Fair Use exception, and almost the entire totality of the photo is used in the derivative work.
Add to that the negative impact that the derivative work has arguably had on the potential market for the original Mannie Garcia photo and….
Mark Johnston, posted this comment on Jul 26th, 2009
I will not dispute that the Shepard Fairey poster is a distinct work from the photo, but that does not mean it is not copyright infringement.
For those who may be interested, there are several key points of law that make the use of the AP/Mannie Garcia photo problematic.
The thing is, even though the poster is stylized, there is still an issue of it being based on the Mannie Garcia photo.
First, a brief overview:
Under US law, (Title 17 USC) authors/creators of works are afforded certain exclusive rights to the use and control of those works.
In this particular case, we are interested in US law dealing with the creation of derivative works, which Title 17 defines as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
An important distinction since, legally, the problem is not Shepard Fairey copying or reproducing the AP/Mannie Garcia photograph, but creating a new derivative work based on that photograph.
Under existing law, the right to legally create derivative works (in this case, a stylized poster from a photograph) is one of those exclusively retained by the creator of the original work (in this case Mannie Garcia or the AP in the case of a work-for-hire situation.)
It is worth noting that Shepard Fairey is not disputing that his poster is a derivative work of the AP photo. Instead, he claims that it represents a permissible fair use of the copyrighted work.
Which brings us to 17 USC § 107 which defines the scope of fair use as limited to purposes such as criticism, comment (on the original work, this is often how parody is permitted), news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
I would also note that the test used to determine whether a given use (such as criticism, comment, news reporting, etc) is fair use takes in to consideration factors such as the purpose of the use (commercial or noncommercial), the nature of the original work, extent of the original work used and the impact on the market or market value of the original work.)
While the test is somewhat subjective, in looking at the use of the AP photo, it is not difficult to see that the use is commercial (Fairey and the campaign profited from the use of the work), it does not fall under a permitted use under the Fair Use exception, and almost the entire totality of the photo is used in the derivative work.
Add to that the negative impact that the derivative work has arguably had on the potential market for the original Mannie Garcia photo and….
Mark Johnston, posted this comment on Jul 26th, 2009
May not be popular, but…I’d point out that just because the poster by Fairey is stylized doesn’t mean it’s not copyright infringement.
Don’t get hung up on it meaning Fairey has to reproduce the photo pixel for pixel. Under 17 USC, only the original author of a work has the right to create a derivative work (turning a photo into a painting/poster.)
Mark Johnston, posted this comment on Jul 26th, 2009
May not be popular, but…I\’d point out that just because the poster by Fairey is stylized doesn\’t mean it\’s not copyright infringement. Derivative works are reserved to the original author.
CA Johnson, posted this comment on Jul 26th, 2009
This is very interesting, Gail. 
Gail Nobles, posted this comment on Jul 27th, 2009
Thank you all for your comments. Yes, I know about the law, Mark. Thanks for your info. The judge in court may or may not let you go if you use something similar to somebody else’s work. It all depends. One judge may look at the photo and the art and say it is not copyright infringement, and another judge may think differently. The law is so twisted up. There are many ways to get out of a situation when it comes to the law, and there are ways that they can get you, even when it doesn’t seem fair.
dee gold, posted this comment on Aug 2nd, 2009
gayle,good job in this one
Gail Nobles, posted this comment on Aug 2nd, 2009
Hi, Dee! Thank you!
Brian Daniel Stankich, posted this comment on Aug 3rd, 2009
Yes, copyright law and practice are so confusing. Brian
Gail Nobles, posted this comment on Aug 3rd, 2009
Thanks for your comments and for reading, Brian.
AngelaDavid, posted this comment on Aug 25th, 2009
This is a good article. Informative. thank you for sharing.
Gail Nobles, posted this comment on Aug 25th, 2009
Thank you!
diamondpoet, posted this comment on Nov 10th, 2009
Wow you really know your facts, and made sure that we were well informed. thanks
Leave a Response
-
Follow Us
-
-
-
-
Popular Articles
ken bultman, posted this comment on Jul 24th, 2009
The painting misses the mark of being a mirror image of the photo.