Fair use? Or copyright theft?

Via Photographers.ie, this is an interesting debate. When does a photo (or another form of work) become fair use material for anyone who wants to use it?

The specific case in point is about an artist called Shepard Fairey who used an AP photograph to create his (now famous) 'Hope' poster of Obama. The question is, should he be allowed to use another's photo for this as 'fair use'?

There's a lot of muddled thinking and double-standards throughout this debate. For example, those who think it's absolutely okay to copy, swap and download copyrighted music react with outrage if something they have created (a photo, an article, a blog post) is used elsewhere without attribution or compensation.

Personally, I think that some form of compensation is due to the AP for this, mainly because of the success of the poster: Shepard needed this shot to base his work on, and AP deserves something for that. But perhaps they're not due a huge level of compensation. The end product is, actually, something slightly different. I'd suggest $20,000 or something similar.

On a broader level, I think that artists, journalists, authors and musicians do have to accept that a certain amount of copying and leeching is part of life. That's why I think that the music industry is a being too heavy-handed on its current quest to compel ISPs into censoring websites. Copying and ripping off music has always existed: it always will.

And it's why most journalists don't overreact when other newspapers (or bloggers) rip their material off (unlike the other way around, when it comes to bloggers).

It's simply part of life, part of putting your work out there. The majority won't actually rip you off. But a small minority will. We have to just live with it.

Comments

[Bernie Goldbach]

The Obama poster mash-up is a good talking point for anyone involved in the creative industry. It's gone well beyond a street artist's version of hope and change and now that it's a legal tussle, the commercial courts will determine the outcome.

[le craic]

Presumably the photographer got paid for the image. AP would have been paid when their photograph was used. Did Obama get paid for his image to be reproduced in print? Yes, he's a public figure - but that's where the logic of the argument leads.

Technically, if I take a photograph in Wicklow Mountains National Park and reproduce and sell it, I should pay the Irish state for doing so.

If an artist paints a street scene of New York from a photograph owned by someone else, should the photographer be compensated? It all gets very very muddy and complicated.

So to answer the question should AP be paid - no.

[le craic]

Oh, and just to echo what you say about the outrage people express when stuff of their own is used and yet think nothing of downloading the latest movie or what not - and they even twitter about it. Gas.

[Adrian]

Le Craic,

Good reasoning, although if you take that logic to its conclusion, if I take something you'd written and turn it into a song, which is a wholly different thing to, say, a blog post or an article, does that mean you're due nothing?

Shepard argues that because he added something different to the photo, it's a significantly different thing, regardless of the fact that the original photo is an integral part.

Well, a song is a significantly different thing to a blog post. Therefore nothing due to the writer?

[Luke]

If the AP are entitled to compensation, shouldn't Obama be too, as the AP could not have created their photo without Obama himself? Where does it end...

[Luke]

If the AP are entitled to compensation, shouldn't Obama be too, as the AP could not have created their photo without Obama himself? Where does it end...

[Luke]

If the AP are entitled to compensation, shouldn't Obama be too, as the AP could not have created their photo without Obama himself? Where does it end...

[Cian]

Regarding the record companies: If I was a major share holder I'd be concerned over the amount of time, energy and money their are spending on this issue while also damaging their image.

[le craic]

I think using the example of words and comparing it with this specific case is muddying things slightly, but I do take your point. If I wrote a poem and it was set to music and someone made millions off it - I'm sure I'd be annoyed. The question I would ask myself then is : Did people buy the song because of the lyrics or did they buy it because of the singer and the melody. Back to this case though, and to go back to what I said before. AP no doubt made money from Obama's image - so does Obama get compensation for that. Answer, I'm sure, is no. Then why should AP get anything. Think of Obama's face as his property (just like my words in the hypothetical music example) - see, it's all muddy.

[Nano]

Art is what it is. Nothing is original, everything is copied, influenced in someway by something from before. Sometimes the covering of tracks is better than others. We are all copycats, it's how we learn.

I do think though that Fairey is a bit of a hypocrite in his attitude what with sueing someone for adding to his "Obey" image.

But in the case of the Obama image, well this is fair use, it was not done for the campaign commercially (i dont know the whole story though) and i sense that this is the capturing of a moment in American (indeed, world) history.

Closer to home compare this with the famous Che graphic icon, made by Jim Fitzpatrick from the photograph by Alberto Korda. In this case the image was distributed freely. It wasn't about money.

[Yourtech]

Le Craic,

It may seem muddy, but there is a line in the sand: news affairs and public interest. In other words, Obama doesn't get money because a photo of him, used in a news context, is of public interest.

Also, he puts himself out there asking to be photographed for free. That is his (implied, but obvious) position.

Now compare that to the AP/Fairey dispute. The Ap put that picture out hoping for as many people see it as possible. But only to see it: not to re-use it in their own commercial interest.

And Fairey was not using AP's picture for a public interest/news purpose. So the difference is that he has to pay something.

For me, the muddiness is where the line is drawn. Your poem that turns into a song is not fair use of your poem. Fairey's use of the AP photo is much closer to the line. But I still think that, on balance, the AP are due something.