Ridiculous.
On buttons, posters and Web sites, the image was everywhere during last year's presidential campaign: A pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE.
Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.
The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.
The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.
"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement.
"AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."
"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."
Here are the images in question:
This is quite the novel claim by those assholes at the AP -- that artwork based on a photograph is now a copyright violation. Not use of the photo, or even use of part of a photo. But that an entirely different work, on a different medium, is now somehow owned by the AP because it happens to be based on that photo.
The Wikipedia entry on derivative works is actually pretty good. The statutory definition of a derivative work is:
A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes.
The case that is most on point here is Campbell v. Acuff-Rose Music, Inc.:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.
How the AP can argue that use of this picture hasn't been transformed by Fairey to offer "new information, new aesthetics, new insights and understandings" is beyond comprehension. Perhaps they are feeling the pinch of newspapers abandoning their product -- they've been dropped by Dow Jones, Tribune, NY Daily News, Minneapolis Star Tribune, Spokane Spokesman-Review, while newspapers in New York and Ohio have banded together to create competing networks to rid themselves of the AP blight. Throw in the newspapers that are simply going out of business, and apparently the AP's new business model is to legally intimidate artists basing their artwork at least partly on AP images.
Like going after small bloggers for blockquoting material from their news stories, It's morally bankrupt, legally questionable (at best), and a direct assault on the very notion of intellectual property fair use. The day the AP finally shutters its doors can't come soon enough.