It’s on: AP sues designer of creepily iconic Obama poster for copyright infringement

posted at 8:59 pm on February 4, 2009 by Allahpundit

You can thank this guy, I think, for having solved the mystery of provenance.

The AP’s always been freaky about copyright, as bloggers well know, although in their defense, there’s big money at stake here potentially.

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…

“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.”…

A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images. He released the image on his Web site shortly after he created it, in early 2008, and made thousands of posters for the street.

Funny he should mention Google Images: They were the target of another famous infringement suit on the theory that the thumbnails they generate from webpage photos violate those photos’ copyrights. They lost in district court but won on appeal, partly because the thumbnails were deemed to be sufficiently transformative of the originals as to qualify for fair use. If you want to try your hand at analyzing fair use in this case, Wikipedia lays out the four factors a court will apply. Here’s the photo and poster side by side for comparison. Fairey’s image is obviously transformative (the most important factor, per the Supreme Court’s opinion in the 2 Live Crew case), not just in color and message but in purpose, converting a banal news photo into political propaganda. The nature of the copied work is simple documentary photography of a press conference, not something fictional or highly creative. And the poster doesn’t reduce the value of the AP photo; if anything, it greatly increases it. The only factor that cuts the AP’s way is number three, the fact that Fairey swiped pretty much the whole image to make his poster — but then, that’s what Google does to make its thumbnails and everything’s copacetic with that. Verdict: Fairey wins in a walk. Rock on, “rebel” establishment hagiographer!


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It’ll only be worth a dime nickle soon.

RalphyBoy on February 4, 2009 at 9:03 PM

Make it go away!

By any means, just make it go AWAY!

artist on February 4, 2009 at 9:05 PM

I think the “creepily iconic Obama poster” also borrows from the style of the old Soviet propaganda posters.

jgapinoy on February 4, 2009 at 9:06 PM

I don’t know about AP but google isn’t going to lose or pay anything while “The One” is in power.

Caper29 on February 4, 2009 at 9:08 PM

I think Mr. Obama has a copy of the poster himself……

………….. and it’s hanging on a wall in the Oval Office.

Seven Percent Solution on February 4, 2009 at 9:08 PM

Golly!

I guess the Honeymoon is over…

oddball on February 4, 2009 at 9:10 PM

It’s “transformative” in the sense that you take an image that is protected by copyrights and photoshop it to push the color levels for maximum contrast, and then take credit for the original image. Ironically, it is what his attorney sues t shirt printers and street kids for.

chunderroad on February 4, 2009 at 9:12 PM

Apparently the young don’t know who Karl Marx was since their teachers were so busy telling them about the evils of global warming.

Forgot to mention to the skulls full of mush, that communists killed 125 million people in the 20th century for the greater good.

tarpon on February 4, 2009 at 9:13 PM

“Now is not the time for profits.”

Very convenient that.

The AP would beg to differ.

mankai on February 4, 2009 at 9:20 PM

I don’t know about AP but google isn’t going to lose or pay anything while “The One” is in power.

Caper29 on February 4, 2009 at 9:08 PM

… What?

DaveS on February 4, 2009 at 9:26 PM

2 Live Crew

Awwwwrrr Yeah!

Tzetzes on February 4, 2009 at 9:26 PM

How did Warhol do his prints? He didn’t take the original photos (like the Marilyn Monroe one), right? So did he pay the copyright holders?

meep on February 4, 2009 at 9:26 PM

It’s not the same photo is my opinion.They look close but have subtle differences.

NeoKong on February 4, 2009 at 9:26 PM

Pop culture will eat itself™

daesleeper on February 4, 2009 at 9:28 PM

I think Mr. Obama has a copy of the poster himself……

………….. and it’s hanging on a wall in the Oval Office.

Seven Percent Solution on February 4, 2009 at 9:08 PM

They had a special one made for the Oval Office; it’s printed on black velvet.

behiker on February 4, 2009 at 9:35 PM

Pravda should sue too!

Miss_Anthrope on February 4, 2009 at 9:38 PM

Yawn………….

GarandFan on February 4, 2009 at 9:39 PM

I just took a dump that bore an eerie resemblance to Obama.

However, to avoid a national calamity, potential lawsuits and indignity far and wide, I flushed it.

I shall eschew any further flush Obama movements until at least 2011, PBUH.

/Metamucil sidebar ads still welcome

JammieWearingFool on February 4, 2009 at 9:41 PM

Good, They threatened to sue me for using that iconic image.
I hope they lose their shirts.

TheSitRep on February 4, 2009 at 9:41 PM

bwahahahahahahahahahahahahahahaha

:snort:

HAHAHAHAHAHAHAHAHAHAHAHAHAHA!

baxtrice on February 4, 2009 at 9:45 PM

The poster reveals,with the American flag
behind Hopey,as the redstates and blue states
and Obama as the great unifer,in the great
re-unification of America!

Now,AP is banking on,that might happen,
and maybe they think,it’ll be like a
Rambrant,hanging in a gallery,therefore,
the AP foresee’s the marketability and worth!

Me thinks though,this would be crazy thinking,
it’ll never be in a gallery!(Snark)

canopfor on February 4, 2009 at 9:46 PM

I think the “creepily iconic Obama poster” also borrows from the style of the old Soviet propaganda posters.

jgapinoy on February 4, 2009 at 9:06 PM

Good catch but so long as they go the way of W.I.N. buttons I’ll be happy.

highhopes on February 4, 2009 at 9:48 PM

… What?

DaveS on February 4, 2009 at 9:26 PM

Oh come on, everbody knows that Google is in the tank for liberals. They have a huge operation in Ann Arbor for God’s sake!

What I find interesting is the concept that one can pinpoint the picture of the filthy bastard that was used for that poster. How does AP prove their case? Measure the ears?

highhopes on February 4, 2009 at 9:52 PM

I’m waiting for the movie to come out so I can steal/copy it. “DUMBO FLYS AGAIN”

Rovin on February 4, 2009 at 9:55 PM

AP,

You might want to take a look-see at a “derivative art” interpretation instead of “transformational art.” Case law seems to strongly support the Associated Press.

Fairey’s going to settle this out of court if he’s smart, because he doesn’t have a copied-and-inked legal leg to stand on.

Bob Owens on February 4, 2009 at 9:55 PM

Bishop on February 4, 2009 at 9:34 PM

That is so wrong………

…………. on so many levels!

Seven Percent Solution on February 4, 2009 at 9:57 PM

They had a special one made for the Oval Office; it’s printed on black velvet.

behiker on February 4, 2009 at 9:35 PM

………. hung underneath a black light.

Seven Percent Solution on February 4, 2009 at 9:59 PM

I always wondered if Mad magazine was compensated for every illustration of W as Alfred E. Neuman.

benny shakar on February 4, 2009 at 10:01 PM

I suppose Obama Inc. hasn’t been quite as lucrative as expected.

ddrintn on February 4, 2009 at 10:01 PM

Lame.

CP on February 4, 2009 at 10:02 PM

Bishop on February 4, 2009 at 9:34 PM

I can’t look…weak stomach.

Barry’s poster in the Oval Ofice has the following inscription: OOOOOXXXXs, Me. P.S. Never Change.

The artist is featured on one of the USA Network’s “character” spots painting on the floor. Creepy.

kingsjester on February 4, 2009 at 10:04 PM

Meanwhile Fairey is getting his own TV show. (Of course)

Ortzinator on February 4, 2009 at 10:06 PM

Karma.

blatantblue on February 4, 2009 at 10:06 PM

I always wondered….

benny shaker on Feb 4,2009 at 10:01PM.

benny shaker: I think your confused,are you talking about

Terrorist Obama and Michelle OMama Obama

picture from the New Yorker!

canopfor on February 4, 2009 at 10:07 PM

Oh, the irony.

Ryan Gandy on February 4, 2009 at 10:07 PM

converting a banal news photo into political propaganda…

I don’t there’s enough room there to call that transformative.

Stephen Macklin on February 4, 2009 at 10:08 PM

I read somewhere that some atty is going around threatening people who use copyright photos/images as avatars. So, your little SouthPark icon is actionable. Don’t know if it is true, though.

Blake on February 4, 2009 at 10:17 PM

Fairey’s going to settle this out of court if he’s smart, because he doesn’t have a copied-and-inked legal leg to stand on.

Bob Owens on February 4, 2009 at 9:55 PM

Fact of the matter is that this is all about the money. That poster became a cultural icon no matter what the source or how bad the filthy bastard’s actual admistration will be. It’s a political propaganda piece that moved millions in the genre of Nazi propaganda which (ignoring the message) is impressive as visual art.

highhopes on February 4, 2009 at 10:17 PM

The side by side comparison isn’t good enough for moi. I want an overlay, like this.

Buy Danish on February 4, 2009 at 10:24 PM

I suppose Obama Inc. hasn’t been quite as lucrative as expected.

ddrintn on February 4, 2009 at 10:01 PM

Depends what happens.

I wish the corrupt bastard in the White House no harm but the fact of the matter is that MLK’s family made far more off the civil rights leader (through their control of his image) than had he lived beyond 1968. The Kennedy family got far more out of the death of JFK than had he lived long enough to be a one-term-wonder he was likely to be.

The best thing that could help Obama Inc. is some way to make America’s first black President (he’s actually multi-racial) into a martyr. Assassination attempts would help these people bolster the profits beyond all the crap that is offered as “historic” from the inaguration.

highhopes on February 4, 2009 at 10:25 PM

… What?

DaveS on February 4, 2009 at 9:26 PM

Google’s Clout Grows as Tech Initiatives Take Shape

Caper29 on February 4, 2009 at 10:31 PM

The best thing that could help Obama Inc. is some way to make America’s first black President (he’s actually multi-racial) into a martyr. Assassination attempts would help these people bolster the profits beyond all the crap that is offered as “historic” from the inaguration.
highhopes on February 4, 2009 at 10:25 PM

This is why I keep coming back!

benny shakar on February 4, 2009 at 10:33 PM

Everyone can play!!!

There are some that are hilarious.

http://obamiconme.pastemagazine.com/

JeffinOrlando on February 4, 2009 at 10:33 PM

Gee, the AP is not happy? How about their stealing
Yon’s photo? Not too happy there….

sharinlite on February 4, 2009 at 10:35 PM

Fairey is a punk.

He’s talented, but he’s nevertheless a punk, and he pretty much fell into fame, wealth, and pop icon status through slacker vandalism. He’s the guy who some twenty years ago started putting up those silly stickers with wrestler Andre The Giant (“Andre the Giant Has a Posse”) which morphed into the corporate-looking “Obey Giant” image. He would travel throughout the country pasting that image on buildings, freeways, billboards and water towers in the wee hours of the morning. His eventual wife (and the mother of his children) served as his lookout as he would climb ladders to rooftops to put the “Obey” posters up, which in turn spawned copycat vandals defacing cities for selfish glory.

Even after he refined his style and parlayed his infamy into legitimate work doing artwork for fashion designer Marc Ecko (another graffiti punk who hit it big), album jackets, and movie posters (most recently Walk The Line), he still posts the Obey schtuff around to maintain his street cred.

I knew something was up with the rights to the image in the B-HO posters when Time had him create an entirely new version for its “Person of The Year” cover.

Paste magazine has a website through which you can create your own version of the Obama posters. Jim Treacher has made a bunch of them and posted them to his site. Here are my favorites. I created the one with George Soros reading “PUPPETEER” and the ones with Obama captioned “I CONNED YOU” and “WE GOT FOOLED AGAIN.”

L.N. Smithee on February 4, 2009 at 10:41 PM

Three contractors are bidding to fix a broken fence at the White House. One is from Chicago, another is from Tennessee, and the third is from Minnesota.

All three go with a White House official to examine the fence. The Minnesota contractor takes out a tape measure and does some measuring, then works some figures with a pencil. “Well,” he says, “I figure the job will run about $900: $400 for materials, $400 for my crew and $100 profit for me.”

The Tennessee contractor also does some measuring and figuring, then says, “I can do this job for $700: $300 for materials, $300 for my crew and $100 profit for me.”

The Chicago contractor doesn’t measure or figure, but leans over to the White House official and whispers, “$2,700.”

The official, incredulous, says, “You didn’t even measure like the other guys! How did you come up with such a high figure?”

The Chicago contractor whispers back, “$1000 for me, $1000 for you, and we hire the guy from Tennessee to fix the fence.”

“Done!” replies the government official.

And that, my friends, is how the new stimulus plan will work.

http://theanchoressonline.com/2009/02/04/how-the-stimulus-plan-will-work/

Mr. Joe on February 4, 2009 at 10:43 PM

Oh, yeah, I almost forgot: You’ve seen his Time magazine cover of Obama. Here’s his LA Weekly cover after the 2004 re-election of George W. Bush.

L.N. Smithee on February 4, 2009 at 10:47 PM

It’s so sad when two socialists fight over money.

angryed on February 4, 2009 at 10:50 PM

There’s nothing more rebellious and rulebreaking than worshipping a presidential candidate.

Jim Treacher on February 4, 2009 at 11:00 PM

I knew something was up with the rights to the image in the B-HO posters when Time had him create an entirely new version for its “Person of The Year” cover.

He admitted in an interview that he didn’t have the rights to the original image, which is probably something he shouldn’t have admitted, but he seems to enjoy willingly “bending” the law. We’ll see what happens.

I saw the Andre-style Obama on a San Francisco utility box. Someone had added a Hitler mustache (because we know how all American Presidents are really Hitler). Heart-ache.

calbear on February 4, 2009 at 11:01 PM

Hiya, Jim. Thanks for getting me hooked on Obamicon.me.

L.N. Smithee on February 4, 2009 at 11:01 PM

This is why I keep coming back!

benny shakar on February 4, 2009 at 10:33 PM

Okay but don’t skew my comments.

highhopes on February 4, 2009 at 11:02 PM

I learned more than I ever wanted to know about Fair Use after I made my 9/11 site. Even though the site was hosted on donated server space and has never had ads (other than an acknowledgment to the company donating to space) and zero profit was being made, I had emails and legal threats galore from the photo editor of Time Inc because of one of the images I used. Of course nothing ever came of it, but it scared my at the time, knowing nothing of Fair Use, because the photo editor was saying stuff like ‘Just take the site down, and spare your family from bankruptcy’.

I’m not so sure Fairey can claim he’s not profited.

Ugly on February 4, 2009 at 11:05 PM

but it scared my me

Ugly on February 4, 2009 at 11:06 PM

I think Mr. Obama has a copy of the poster himself……

………….. and it’s hanging on a wall in the Oval Office.

Seven Percent Solution on February 4, 2009 at 9:08 PM

Yep, probably right next to his Che Guevara poster. /sarc off

Oldnuke on February 4, 2009 at 11:07 PM

Grr – company donating to the space

(although, that typo was amusing)

Ugly on February 4, 2009 at 11:08 PM

is a fight like this, I root for injuries.

DaveC on February 4, 2009 at 11:21 PM

Since when does stylizing a photograph of a piece of shit reach the level of copyright infringement?

csdeven on February 4, 2009 at 11:23 PM

Fairey is right.

Jaibones on February 4, 2009 at 11:39 PM

Cool…you can make and order products there (obamaconme.pastemagazine.com). That is awesome.

Great link, guys.

capitalist piglet on February 4, 2009 at 11:40 PM

The tie is a different colour, too.

andycanuck on February 4, 2009 at 11:43 PM

Fairey is right.

Jaibones on February 4, 2009 at 11:39 PM

I see what you did there.

+1

Ugly on February 5, 2009 at 12:32 AM

The only factor that cuts the AP’s way is number three, the fact that Fairey swiped pretty much the whole image to make his poster

Hmm. So, if I took an entire post of yours, cut out a sentence or two, added a little bit of my own “color”, and posted it on my own blog, you would count that as fair use?

When google makes a thumbnail, they remove a significant amount of data from the photographs and drawings they thumbnail. They reference the original via a URI, so the original actually gains value by being referenced.

Fairey doesn’t reference the original via his work — as you point out, he’s kept most of the information contained in the original photograph and imbedded it as part of his own work.

I think he’s going to lose. This is not educational reproduction, use in a government proceeding, or accidental or fortuitous, and has been done without obtaining the requisite permission from copyright holder.

unclesmrgol on February 5, 2009 at 12:51 AM

Nice of AP to wait until after the election and after this poster helped sucker the naive into voting for this tyro doofus, to bring suit.

Which will fail under “fair use”, anyway, as Andy Warhol already demonstrated forty years ago.

Obama: see the invisible.

(That’s my little “Obamicon“… of course Obama, Con would be nice, with Barry in prison stripes… but I’ll leave that for someone with more photoshop time.)

profitsbeard on February 5, 2009 at 12:57 AM

Hmm. So, if I took a tire of yours, cut out a hole or two, added a little bit of duct tape, and mounted it on my wheelbarrow, you would use it to move my pile of manure?

unclesmrgol on February 5, 2009 at 12:51 AM

Please don’t sue me.

Ugly on February 5, 2009 at 1:01 AM

Fairey is a hypocritical thief. His ‘counter-culture’ art is plastered all over products sold in upscale stores. He stole his entire idea of the ‘obey’ posters from the movie ‘They Live’. Even his own Wikipedia article lists the complaints about his incessant stealing of minority artist’s works from the 60′s to churn out more ‘underground’ shirt designs that are sold at Nordstrom’s. Read this article for some laughs:

http://www.art-for-a-change.com/Obey/index.htm

He is one conflicted capitalist.

After all that, he has the nerve to sue a guy for taking Fairey’s Obama image and making a shirt that says ‘Dope’.

arteest on February 5, 2009 at 1:04 AM

Obama lawyers were trying to restrict people who profit from Obama. If Obama sues both of them, and they countersue… is it a reality show or a situation comedy?

HotWeaver on February 5, 2009 at 1:08 AM

How about properly vetting him, AP? Huh? What about that?

SouthernGent on February 5, 2009 at 1:16 AM

Al Gore is trying to take over your children

Seriously this is way creepy.

H/T to Glenn Beck and one of his alert callers!

Mr. Joe on February 5, 2009 at 1:17 AM

HotWeaver on February 5, 2009 at 1:08 AM

A circus mixed with an episode of Seinfeld mixed with Bizzaro World

Ugly on February 5, 2009 at 1:19 AM

Bishop on February 4, 2009 at 9:34 PM

I know I was forewarned,
but you made me barf on my keyboard.(I got some on my monitor and my desk also!)

gzelmiami on February 5, 2009 at 3:01 AM

Soooo why didn’t AP start this legal action during the campaign, but waited until after Obama was elected?

If they would have started it during the campaign there could have been a court order to remove all these posters. Would that have mattered in the election? Who knows, but the symbolism of the poster (that helped Obama) would have been gone.

albill on February 5, 2009 at 6:41 AM

It’s not the same photo is my opinion.They look close but have subtle differences.

NeoKong on February 4, 2009 at 9:26 PM

It looks that way to me as well. Head’s at a slightly different angle, and the facial expression is a little different.

Kevin K. on February 5, 2009 at 6:55 AM

I think the “creepily iconic Obama poster” also borrows from the style of the old Soviet propaganda posters.

If by borrow, you mean outright steal, then yeah. Leftist artists LOVE the Soviet imagery. I find it oppressive myself, but that’s probably the point.

Ann NY on February 5, 2009 at 7:48 AM

That’s why I always change the perspective on an image if I’m going to steal it. ;)

Just changing the color obviously isn’t enough.

dinobalz on February 5, 2009 at 8:08 AM

The Associated (with terrorists) Press may win or may loose this lawsuit. It depends on whose big bucks can keep the high powered guns in the saddle the longest.

Or, the rare concept of actual judicial pronouncement between right and wrong may take place, in which case, Allah P gave the majority decision.

Either way, it’s more evidence that the glow has dimmed from The One’s halo. (although the sycophants will never admit it)

locomotivebreath1901 on February 5, 2009 at 8:23 AM

The USA Netowrk featured Fairey during a commercial break as being ‘character approved’, during, I think, an episode of Monk.

Big rebel, doing spots on USA.

BadgerHawk on February 5, 2009 at 8:30 AM

Just changing the color obviously isn’t enough.

dinobalz on February 5, 2009 at 8:08 AM

Lol.

BadgerHawk on February 5, 2009 at 8:31 AM

Heh, dirty little secret is they all stole the iconic image from The People’s Cube.

petefrt on February 5, 2009 at 8:44 AM

Rock on, “rebel” establishment hagiographer!

Heh. Nice turn of a snarky phrase, as usual. If HotAir goes to a subscription model, sign me up.

Anton on February 5, 2009 at 8:54 AM

I bet everyone under 40 is trying to figure out who the Soviets were. And why they were so great. And how did they ever dream up such neat pictures and color schemes.

Communists killed about 125 million people in the 20th century, when the freebies ran out. A record to be proud of. Just remember, the warning bell is when the freebies runs out.

tarpon on February 5, 2009 at 8:59 AM

Obvious infringement…Bob Owens is right…Fairey should lose this one. You cannot take someone else’s photograph; alter it, and make a profit from it. Sure, it happens all the time but only because litigation isn’t pursued. You don’t need model releases from photographs of politicians to sell them but the AP owns this picture and not Fairey. I’m not a fan of the AP but I am a photographer and I can tell you it really sucks when people steal your work…that is until they have to pay you.

DCJeff on February 5, 2009 at 9:05 AM

BTW I couldn’t tell you if it’s the same picture or not since I can’t stand to look at the one’s image for more than a second…which make’s living in Moscow West pretty hard since we even have murals of him painted on the side of buildings now.

DCJeff on February 5, 2009 at 9:10 AM

arteest on February 5, 2009 at 1:04 AM

“http://www.art-for-a-change.com/Obey/index.htm” was an interesting read. Especially the comment that there is no evidence that this “artist” is even capable of basic drawing. I loved the observation that his work “…indicate(s) an over reliance on borrowing the design work of others.” (Can you say “plagiarizer”?)

Typical liberal.

oldleprechaun on February 5, 2009 at 9:14 AM

USA Network is “honoring” Fairey in one of their insipid “Character Approved” commercials.

In part of it, they are in Fairye’s studio. ALL of his “artwork” is bascially this same sort of crap. Something a first-year graphic arts student (specaking as a graphic arts professional) would receive a less than passing grade for – he’s a hack.

PJ Emeritus on February 5, 2009 at 9:50 AM

I think the estate of Josef Stalin has standing in this case as well.

Vashta.Nerada on February 5, 2009 at 10:17 AM

The thing is he looks kind of clueless in the photo….

CynicalOptimist on February 5, 2009 at 11:11 AM

It’s from an actual photo?, I always thought the iconic image was from a clothe the Messiah pressed to his face, kinda like the Shroud of Turin.

silenced majority on February 5, 2009 at 11:15 AM