What do you think about the Associated Press vs. Shepard Fairey?

I feel that Shephard’s use of the photo, as a reference for his creation, is perfectly legitimate. I also feel that the AP is only challenging this because the poster was so popular and they want a piece of the pie.

Just as added info: The photographer is okay with Fairey’s usage. It is the AP who take offense and they claim that the photograph was work for hire, therefore they—not the photographer—should own the rights to it.

Actually, there is more to it than that. The photographer in question didn’t even recognize his photo from the poster until it was vigorously pointed out to him that the original image was his, and he himself has a bone to pick with AP because a) it wasn’t a photo he submitted to them to fulfill his assignment, b) it wasn’t a photo of George Clooney which what he was hired to produce, and c) he was freelancing.

In addition, now that the poster has become popular as well as newsworthy, the photographer is selling copies of his photograph, and selling them for more than he could have commanded otherwise. In fact, the National Gallery has specifically asked to purchase a copy of the photo because they already have a copy of the poster. Would the photo be purchased by them otherwise? I think not.

While it would ease my soul as an artist to know that Fairey had obtained permission from the photographer before creating his work, I cannot see that the photographer was harmed by Fairey’s work (to the contrary), and I think the AP should butt out. It isn’t and never was their image to begin with.

@Darwin: He obtained permission post-poster frenzy. Which isn’t the best way of doing things, but the photographer comes out looking awesome for giving that permission.

@Darwin
i agree with the getting permission aspect.

I’m sorry but this is so ridiculous. Big Corp at work again.

@ y’all, getting permission from the photographer apparently makes no difference, so why even try? The US doesn’t have a standard for moral rights (inalienable rights granted to creators of intellectual property, such as the ability to give permission for another to use it, without consent of the copyright holder). The AP is really bringing this suit out of greed, not because of harm, perceived or actual.

Shepard Fairey’s defense lies on the fact that (if the poster is, indeed, based on the photograph at all) his is a fair use under U.S. copyright law. To evaluate this defense, the judge must consider the four-pronged test of this legal standard.

What do I think? Going down the list…

1) Purpose and character of the use. This depends heavily on how Fairey distributed the work. I know that all artists sell their work to make a living, but if he was mass producing the print and selling posters, he could be in trouble here. He has claimed that he donated all the proceeds, but that might not change anyone’s mind.
2) Nature of the copyrighted work. It’s not a piece of creative art that Fairey ripper off, but a journalistic photograph of a public figure taken in a public space. He’s cool on #2.
3) Amount and substantiality of the portion used. If Fairey just grabbed the picture and applied a couple of filters to it in Photoshop, then he could be in trouble here. When I look at the two side-by-side, I don’t think this was the case. Still, sticky.
4) Effect of the use on the potential market for the original. Clearly, as @Darwin pointed out, Fairey’s poster has done nothing but increase the demand for the original, so this isn’t a problem.

So it looks like it’ll come down to how much money Fairey made from it, and what he did to it before printing it. If he can jump these hurdles, he’s got the case.

Yes, it seems astonishing how far the AP has taken this. To the degree that its almost robbing the meaning behind Fairey’s work.

@EmpressPixie – I know he got permission after the fact, which is a good thing. But as an artist I would have preferred he ask first then use the image. That is why I said it would ease my soul to know that Fairey had obtained permission beforehand.

@purephase – I suspect it is a case of too many lawyers insisting that if the AP doesn’t bulldog it, why then, next thing you know no one will ever have to pay AP anything for any images at all. No one at AP is actually thinking about the situation.

Honestly, I see this as the next step in the AP Guide to Making Money in the New Media World after “we must make bloggers pay us by the word for quoting our stories” failed.

I twisted and torn about this – super mixed feelings as an artist. I would want credit for my photo if it were used. However there is such a gray area here with intellectual properties issues; they seem to never get fully coded and there are blurrry guidelines, which is good. The idea that there might one day be governing rules/laws about art/intellectual property scares me although there should be some limitations (ie: a corporation using art work and not paying for it) .I think Shepard created something that will endure and that should be rewarded not penalized. Not sure what bug the AP has up their ass, but I hope it inadvertently sheds light on this issue that needs attention

@purephase ~ the point you make about Warhol’s artwork is valid and I think a good illustration of how fair usage has and should continue to exist. On a personal note, I got to work with Shepard “Shep” Fairey on some of his artwork when I lived in Providence, RI. In my heart I know that he would not infringe upon someone else’s work as the AP’s lawsuit is stating.
Long live Andre the Giant and his posse!