Derivatives – more than Calculus
When it comes to copyright infringement, it helps to be famous. When artist Shepard Fairey wanted to create a poster during the presidential election, he went to Google. There he found a picture of Obama, and without seeking permission from the photographer, he used the photo as the source of his artist work.
Under copyright law, this is called a derivative work and creation of such works is under the control of the owner of the original work. Fairey did not know who owned the photograph he used. He did not both to check. He certainly did not have the permission of the work’s owner to create a derivative.
It took a year to determine that the photo was taken by Mannie Garcia, a photographer on assignment for the AP. Garcia says he photographed Obama for twenty months and saw the poster many times. He even snapped pictures of the poster. He says it looked familiar, but he did not realize it was his picture until someone else figured it out.
If Garcia writes a book including famous photos he has taken, will he have to ask Fairey for permission to publish a picture of the poster based on the photo taken by Garcia?
January 31st, 2009 at 2:11 pm
Fairey discusses this in an interesting interview on NPR’s Fresh Air. After creating the first image, the copyright/derivative work issues surfaced, and he created the second poster using an image whose source was known.
If Garcia was working on assignment, the copyright for the original picture would probably rest with the AP since it was a work for hire.
In this case, I don’t think Garcia would have any trouble getting permission from Fairey to use the image. The question of whether he would need it, however, is an interesting one. I would guess that, in practice, the legal team for his publisher would want it even if he doesn’t need it.
January 31st, 2009 at 2:43 pm
Even though Garcia was on assignment for AP, I think he may have negotiated keeping the copyright of his photos. Everything I have read indicates Fairey talked with Garcia about it after the fact and not with AP.
February 4th, 2009 at 10:01 am
Looks like it goes beyond Mannie Garcia. Shepard needs to be stopped.
http://www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html
February 4th, 2009 at 10:00 pm
Now the AP says they own the copyright… and they don’t seem as friendly as Garcia.
http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
March 7th, 2009 at 2:13 am
Thanks
March 19th, 2009 at 1:23 pm
There is such an idea as appropriation. If an artist changes the original content enough to make it his own, then he is protected. This, at any rate, is my understanding. This protects artists from making statements through the use of other materials as in a mixed medium piece. Or, think of Andy Warhol’s Campbell Soup image, for example. I can push that image in my own artwork as long as I make it my own.
Thoughts?