In the answer to The AP's counterclaims we filed yesterday, we included a dozen examples of AP photographs The AP sells, which consist almost entirely of the copyrighted artwork of Fairey and other artists.
Today, The AP issued a statement accusing Fairey of "making attacks" on The AP and "deliberately omitt[ing]" the "newsgathering context in which the various images were generated and in which they are used."
The funny part about this is Fairey doesn't allege The AP's photos are illegal or infringing, much less "attack" The AP. The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way. Fairey's allegations don't say the AP shouldn't be allowed to do what it does. These allegations -- and the AP's response -- just demonstrate The AP demands wide leeway for its use of other artists' work, but insists that others, like Fairey, are entitled to much less leeway.
As for "newsgathering," The AP misses the point again. While the photographs may have originally been taken for the purpose of newsgathering, they are presently for sale on The AP's image licensing database as a commercial product for "professional photo buyers."
So let's get this straight: We're not alleging The AP's photographs infringe anyone's rights, or demanding The AP stop doing the excellent work it does. We simply contend The AP should have to play by a consistent set of rules. We contend fair use should apply broadly -- for everyone. If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too.
AP's hypocrisy is pretty entertaining, although what exactly did you think their attorney would say in response? The AP has made it abundantly clear in the last few weeks that they do not understand the power of pr in the social media age.
Out of curiosity do you have any response to the apparent deliberate lie about which photo was used? http://www.pdnpulse.com/2009/02/a-problem-with-shepard-faireys-lawsuit.html (I understand if you cannot comment on that.)
The issue here does not turn on whether AP took photographs of your work, because they clearly, own those photographs, even if your image is in their work. Your brief leads to the end that Our Lord Obama can sue every person who takes a picture of him, since he is the person the picture is being taken of, and he did not give permission for that picture to be taken. Nor has he received any royalties for his godly like image.
I would rethink your position.
You will lose if you ask the court to come to a conclusion that an image owned by another, can be manipulated, then added to a graphical background, and now no longer can be considered as having any part of the owners work. You show an example of a man who you claim in your work as being one revered for peace. In that piece you borrowed an AP picture, which you morphed, and then placed as greater than 50% of your design. Then you gained a commercial benefit from that design that included, status in the community, and without a question, elevation of a piper to eventually win a presidency, and you gained political, economic and glory yourself. Never asking or giving credit during the process to the photographer and AP who paid that photographer for the image.
Perhaps you are missing what the AP is saying? First, your argument clearly says that you used a picture owned by them, allegedly this was taken off the Internet, then morphed, so it papers legally you are already standing behind the gun.
Next, you never argue in what manner you have changed the image, to make the image yours. Which there does exist a body of law, that could support your claim, and aspire to an affirmative defense. I am not an attorney, nor am I a legal mind, nor am I offering advice, but from what I am seeing you are going to hurt the art world by the direction you are taking your suit!
I would suggest you take a difference direction. I do not support your political views. and I do not support the direction you are taking your suit, to date, as it will reap havoc on future graphic body of works, from which the original artists disagrees with the use of his work.
Peace.
An electromechanical, electronic, chemical or lithographic process that makes an image which duplicates a visual work is held in most jurisdictions to be a copy and hence a breach of copyright law - except where fair use considerations apply (and in some jurisdictions, the priorities and exigencies of the functions of the state).
A photograph of a work is clearly at best a derivative work if no further content or commentary is added to significantly change the effect, appearance etc of the work. Selling it, however, is clearly a no-no; I don't think it should be allowed to happen without being contested.
However, your client's alteration to the original photograph does indeed alter the nature of the original. It's like Andy Warhol and the Campbell's Soup cans, in a way.
Yes, this is correct. Good point!
I cant believe they stole stuff from Fairy. Ridiculous. This happens way more than people notice, and it should be punished.
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Fair use is transformative; which Fairey's work clearly is. AP lawsuit is just too kept theire law department busy.
AP will lose.
re: Your sarcastic references to "Our Lord Obama," "godly image" and statement "I do not support your political views."
It's obvious that at least some of the more vocal people dragging Shepard Fairey through the coals could care less about art. Their real agenda is to punish him for his part in Obama being elected -- that he dared to provide so much exciting free publicity for a candidate, and a president, that they just can't deal with.
It's truly amusing how desperate the neocons have become...
Desperate Neocons?
You're out of touch. This is not a right wing conspiracy. And Obama would have been elected no matter if Fairey were alive or dead. The issue here is the right of photographers and the right of artists to their materials and not to be used for commercial gain by others without compensation or approval.
And I have a funny feeling you would be changing your tune if it were a poster that made millions for the republicans.
In order to consider the original photo as more than 50% of the new work you would first have to consider how much of the original was ommited. For instance George Cloony is in the Photo and at the time that the photo was taken I can asseure you that a very large population of people who viewed this photo considered George to be 50% or greater of the focal point of this photo. Also the emotion expressed by Pres. Obama in the photo is that of paying attention to and observance as is Goerge Cloony's. In Shepard's work less than 10% percent of the original photo is used and none of the context is used. It's like using a word on the page of a book. I would compare it to someone using the word Lord and then someone else suing that individual for it's resemelance to Lord of the Rings. Also the part of the photo used is the President of the United States of America who's face is now probably the most recognized and reproduced images in the world. It is now public domain and was used as such. We all own this image now.
Dude... I don't follow what you are saying here. You don't make any sense. It is AP that is trying to claim and control all use and ownership of images of public figures like "Lord Obama" (What IS your problem, dude?) Farley and Lawyer are arguing simply that fair use works both ways and must be consistent. They are not arguing for more restriction. (For the record, to my eyes, the famous poster in question is a highly original work... the image of Obama, though derived from a relatively generic photo is significantly reworked. Are we to now believe that nobody can make a picture of the President of the United States using an existing photograph as the source? The whole AP case is a crock of corporate crap. Also, Dude, you, need, to,learn how to, use commas to make, yourself more understood, if that is possible.
Learn to use, commas, then we, can talk.
Hahaha. Thank you for saying what I was thinking.
Perhaps you are missing what the AP is saying? First, your argument clearly says that you used a picture owned by them, allegedly this was taken off the Internet, then morphed, so it papers legally you are already standing behind the gun.
i AGREE with you
The APs hypocrisy? That's laughable. Hypocrisy is Fairey arguing that imagery should be up for manipulation, then leveling trademark suits himself against others.
But this angle of attack seems amateurish, childish actually. Does the Stanford Law center really stand behind this angle of attack? I mean seriously do you Anthony Falzone honestly think it's ok for someone to use other peoples photography on their posters, tshirts and coffee mugs * BECAUSE * the AP takes photographs of, and documents events wherein there may be copyrighted material present? Do you really think that's justification? Is this the precedent you want to set? Or are you guys grasping at straws and uttering whatever weak arguments fall out of your mouths?
You don't get it. FAIR USE is not taking an image of a copyrighted work and reselling it. No one is arguing for that. Though, indeed, it is AP that apparently is doing just that. But, yes, in general, in this changing day and age the standards are being adjusted. Better for all of us that CORPORATIONS do not end up controlling access to all images, music, writing, etc.
Your client must have had a sudden change of heart concerning fair use. Just weeks ago he slammed a graphic artist with a cease and desist letter because the he used the work obey and the phrase "Obey Steelerbaby" for his art. Obey Giant Art Inc. made a statement saying that only Fairey can use the word obey in artwork or design. So where did this wonderful acceptance of fair use come from?
Fairey can't have it both ways either. He can't use any image on a whim and then send cease and desist letters when people use his iconic works of art as a base for visual social comment or parody. And there is fair use under trademark I might add. Fairey knows that more than anyone.
Case 1:09-cv-01123-AKH Document 21 Filed 04/14/2009 Page 12 of 32
122. Deny the allegations contained in ¶ 122 of the Counterclaims, except admit that in February 2009 Fairey’s representative sent a takedown request to CafePress.com, which was facilitating the sale by the proprietors of http://www.steelerbaby.com/ of t-shirts bearing the Obey trademarked name. When he learned his representative sent the takedown notice, Fairey requested that his representative withdraw it, and his representative rescinded the takedown sent to CafePress.com. The items remain for sale on http://www.steelerbaby.com/ through the CafePress store.
Trademark law requires that trademark owners police the use of their marks or they lose their strength and/or are considered abandoned entirely. Being pro-fair use and policing your TMs are not mutually exclusive.
Yes, this is correct. Good point!
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If I was a lawyer for the AP, I would be drooling right now waiting to crush you in court on this line of thinking.
I thought your that responding with the list of examples of AP's use of Fairey and others' artwork was an excellent response, but I worried slightly about the inevitable AP claim that journalism or "new gathering" elevated their work to some special status - a status that Fairey's Obama work does not attain.
The fact that you can show that they are making the images available as part of their general catalog for non-news effectively deflates that argument.
Artists have snagged imagery from one another as long as there have been artists. What is common courtesy is to give props where due. "with respect to:" Fairey snags imagery and never acknowledges his sources -- some are blatant rip-offs. On an aside, I nearly barfed when that Adam Lambert knocked off Gary Jule's version of Mad World, got a standing ovation, and never gave Jules a nod -- just because you can "remix" an existing image or song, doesn't mean it is suddenly your brain-child. These people should be embarrassed to stand up there and take bows for work they did not entirely create -- give credit to the source, then perhaps the source will not be so cranky.
Interestingly Gary Jules is a cover of the original Mad World by Tears for Fears...
I completely understand Shepard's position, but I also don't like it when someone takes such an absolute position, even in defense.
I don't think AP is owed as much as they think they are owed, but it does seem a bit pompous and a tad grandstanding to not give AP some due. I'm in the camp that thinks both AP and Fairey are being idiots in a yelling contest. Both sides given enough time and discussion outside of human emotion, would understand neither of them is "right" so just make a compromise.
The idea that if you crop enough out of a photo you can hedge your copyright bet seems weak. Again, my problem stems more from Fairey not even attempting to come to a middle road solution and just saying no, mine. I don't think AP's terms are fair, they are out of proportion, but look at Fairey's photo.
He did transform it, but it's like a sculptor saying the rock had no part in it, and that's just a medium. I'm with the artistic act being that which, like alchemy, gives value to something pre-existing, but if you want to ask the real big and meaty artsy question its why is Shepard's print exactly "more" in value monetarily compared to the AP photographer?
Let's be honest. His position would work better if his 'transformative' acts on the photograph were more than color and grain. Even if Shepard wins the suit, that print is that pose, however amplified, it's that headshot. A little humility that's all.
I mean make a gesture to the photographer, win the suit but don't be so self-righteous about art or an artists absolute right compared to non-artists. Otherwise, it's just who can transform someone else's work just enough to beat the creator to the profit punch. If you don't make a profit, no big loss, move on to another person's work until you succeed.
Both AP and Fairey are being infantile about the whole damn thing. It's all money. Both of 'em.
In the din of the blogosphere, the rational voice of Iowan is barely audible. At least I hear you, brother. You are not completely alone.
How or where can i get a copy of AP's counterclaims? I would like to read it in order to better understand your Answers.
Greatings from Guatemala and best of luck!
This is a fascinating topic in terms of intellectual property, but could the comment writers please refrain from the name calling?
And, I agree with Anthony that the AP is applying a double-standard, but there is much more to the discussion.
The fact that you can show that they are making the images available as part of their general catalog for non-news effectively deflates that argument.
Given the AP's obvious assault on fair use with Fairey and All Headline News, and the settled "Moreover Case" and others recently, isn't there some way that a class action suit could be instituted against the Associated Press?
The AP is certainly acting badly as it relates to this and many other issues?
Wouldn't working together be more effective?
Say i go to flikr and download a whole bunch of family photographs. Then i sell them each for 10 cents a piece. Will that be the same thing?
By the way, I run http://www.RichardsPalace.com .
Hi everybody
I am an undergrad student writing a research paper on the Fairey/AP controversy. Does anyone know how to cite Fairey's original demand for a jury trial? preferably in Chicago style... send me an e-mail if you can help!!!
Ask the blogger, Anthony Falzone. He seem really well versed in the topic. Good luck!
Thanks for your Information
Angela from Aberdeen
it's so obvious the ap is applying a double standard for there own convenience great work.
Sean
You're exactly right Sean. I'm glad this situation has been highlighted. It's heartening that they have been exposed in this way.
Betty Tips
This seem to be a classic case of don't do
as I do but do as I say do.
Agree?
Hello,
You raised fascinating points here and I wholeheartedly agree with the "newsgathering" alibi. Everyone should be on equal ground here. Every entity, even an "institution" such as the AP should stick to the rules.
Thanks for sharing your insights. I'm grateful some people still care about equality.
Thanks for the information. You are right in saying that AP has missed a few points.
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This is so expensive in PR. This looks like a mis-calculation on AP's part, not appreciating the cost to their credibility.
It would be really interesting to see how, with accusations of copyright due to likeness, would translate to environmental marketing. Greenwashing is becoming a big issue with people making all kinds of eco-friendly claims with no substantiation.
@ We simply contend The AP should have to play by a consistent set of rules.
Indeed, I couldn't agree more. The AP has consistently shown over the past few years that it likes to make it's own rules as it goes along and expects others to follow a rigorous set of it's own making, even if they have fallen foul of them themselves. It seems that they have forgotten where they get their news from in the first place and are scared of being struck down from the limelight by new media.
I expect this argument to carry on somewhat for sometime.
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thank you for the information...
it's very nice post..
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Thanks for giving such good information,i also think that Ap has missed some points.
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I don't understand how they can get away with copyright infringement. If i took someones picture and sold it I would go directly to jail do not pass go!
I would be so PO'd if I took pictures for a news paper or other media outlet and then they went out and was selling that picture and I did not receive royalties. I don't understand how they can get away with that.
I was making a research about a project for my universty and I bumped into your article. Thanks for informations. You said the same things what I was thinking.
Best regards
Thanks for giving such good information,i also think that Ap has missed some points.
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thanks man...
Has there been any updates on this?
Thanks,
Tom
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As a pet photographer I can't have people just using my photographs for puppy training.
The fact that you can show that they are making the images available as part of their general catalog for non-news effectively deflates that argument.boil treatment
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