Crowd-sourcing a "fair use" case


As mentioned, the Fair Use Project at Stanford’s CIS is representing Shepard Fairey in his suit against the AP. To that end, we’d be grateful for some net-based knowledge. How many photos are there “like” the beautiful photograph that Mannie Garcia took (the one on the left; the one on the right is a CC licensed photo taken by Steve Jurvetson)? Can you send any examples to [email protected]?

Also, please send any favorite examples of photos used as visual references for other works of art. We lawyers don’t know much, but we can learn pretty quickly.

Thanks for any help.

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73 Responses to Crowd-sourcing a "fair use" case

  1. Micah says:

    70s-era Warhol works works will probably qualify in the “photos used as visual references” category.

  2. Brad says:

    I don’t presume to know how this data is meant to fit into the case, but I’ll play devil’s advocate and say that I think side-by-side comparison actually makes it MORE obvious that Shep’s piece was derived directly from Garcia’s photo, not less, because it draws out the subtleties of that particular photo:

    – the harsh shadow on the left side of his chin (Obama’s left, not screen left)
    – the highlight in his right ear
    – the sheen around his right eye, both on his cheekbone and his temple
    – the very distinct shadow across his collar

    All of these subtleties show up in the HOPE portrait.

    It reminds me a little of those cereal box games where you have to identify the differences between two nearly identical pictures, except that in this case every difference strengthens the evidence against Shep.

  3. @Brad,

    It would only strengthen the case against Shep if the argument was that the photograph the AP claims copyright infringement on wasn’t the image that was used as the basis of his work. As far as I understand things correctly (and I could very easily have bad information), he’s not claiming that at all, and in fact has publicly admitted the fact that while he initially couldn’t remember which photo he used, the photo the AP claims copyright control over is in fact the photo used as the basis of his piece.

    Like you, I don’t know how this data is meant to fit into the case, but one can assume the argument is related to “What does the copyright the AP owns legally provide for them?” Is the copyright on the photo itself and therefore provides them protection from someone using an exact copy of that image w/o their permission? Or is it the position of his head and the way the lighting reflects off his skin and therefore provides for them protection from someone taking a photograph in which the position of his head and the reflection of the light bares a striking resemblance?

    I think it’s fair to suggest the copyright is on the photograph itself as if it was on the photographs properties then this world is in a heap of trouble as far as future copyright infringement claims are concerned. Instead of “This person used an exact copy of this exact image without our permission.” we’ll live in a world where news reporters covering a political speech and/or parents attending a school play will be trampling over one another to ensure their timestamp of a subject is sooner than anyone else taking a picture of that same subject from a similar position, location, and time, therefore owning the copyright on the properties in the image for as long as the US Congress feels they should be given that copyright control (which at the present rate of extension means — for all intents and purposes — forever!)

    I don’t know about you, but if the above represents reality, I don’t want to be present when Mrs. Rodriguez is told by the school principal that she can’t take pictures of her daughter Sarah during night two’s rendition of “A Mid-Summer Nights Dream” because her next door neighbor Mrs. Johnson owns the copyright on the images taken during opening night’s performance the previous evening. If this were to happen, in addition to copyright infringement Mrs. Rodriguez is going to be sitting in a jail cell on charges of beating Mrs. Johnson’s smug little, picture taking, copyright controlling a$$.

    Believe it! 😉

    But let’s set aside the argument based on assumptions of what they plan to use this data for and instead focus on something in which the facts are already well understood:

    If as an artist I create a sculpture in which is later used as the subject matter for a piece created by a sketch artist can I then claim copyright infringement by that sketch artist on my original piece? Of course not. If I could, every time someone sat down to draw a picture of something someone else created they would be guilty of copyright infringement. In fact, if this was the world of copyright that we lived in then Barack Obama’s parents would have every right in the world to claim copyright infringement on their creation, Barack Obama.

    Fortunately we don’t live in a world where parents hold copyrights on their children. And if we don’t live in that world — a world in which /ANY/ representation of a given subject matter regardless of the medium in which it has been rendered is in violation of copyright — then how can Shep be guilty of copyright infringement for rendering his interpretation of the subject matter portrayed in the photograph owned by the AP? In other words, and in summary:

    If the AP isn’t guilty of copyright infringement for taking the picture in the first place, then neither is Shep for creating his interpretation of that image, regardless of whether the photograph in question is, in fact, the source of inspiration for his piece.

  4. joy g says:

    This entry on Wikipedia includes rather extensive list of artists who source their work in much the same way (including myself):

  5. Matt says:

    It’s plain to me that Fairey’s image, with all of the additional understanding and commentary that it brings to the AP photo, is fair use.

    But placing other similarly composed Obama photo’s next to the AP’s takes away from the argument. After all, side-by-side, these two photos may be composed similarly, but they’re in whole different categories emotionally. The Obama on the left is inquisitive and patient. The Obama on the right seems restless and angry. This has the result of making the AP photo look all the more special for what it captured in Obama, and making Fairey look like someone who stole that special quality, instead of adding his own, which is what he really did.

  6. Randy Finch says:

    There was an exhibition of artwork based on phtography at the Hayward Gallery in London in October 2007. The exhibit included a Gerhard Richter painting based on a photo of a grieving Jackie Kennedy.

  7. Yvette Wohn says:

    I am so glad you are taking up this case!
    Most contemporary artists use press photos for their portraits. Most of Warhol’s portraits (Mao, Jackie, Liz, Marilyn, etc.) are based on newspaper images; Elizabeth Peyton, Marlene Dumas also paint from photos. (The latter two both had recent exhibitions in NY that featured paintings based on photos.) Richard Prince’s works are ENTIRELY from other people’s photography- he actually took photos of photos, but the art community accepted it as art and his work was even featured in the Guggenheim, selling for millions of dollars.
    But “copying” other artwork dates back even further. For instance, in 1887, Vincent Van Gogh “copied” Ando Hiroshige’s “Thunderstorm at Ohashi” by Ando Hiroshige (1857). The two pieces are obviously the same, but no one questions whether or not Van Gogh infringed Hiroshige’s copyrights– in art, copying seems to be more of a form of flattery, showing that one’s artistic inspirations came from another.

  8. Alan Thiesen says:

    Re Yvette’s comment on Hiroshige and Van Gogh, see

  9. David says:

    Why should this matter? Fairey’s admitted to actually copying the AP photo. What does it matter that there are other similar works he didn’t copy from? Maybe he should have based his art on a composite of these other works, but too late for that.

  10. Tim says:

    Sorry I don’t have any photographs as per your request. My contention is with the idea of using more photos like that one. Fairey admits using the AP photo…perhaps you could explain your reasons for needing similar photos.

    As for the case, it seems like clear cut fair use to me. Faireys work either did nothing or increase the market for the AP photo. He used only a small and insubstantial potion since the original photo is actually a photo of both Obama and Clooney from about the waist up. He certainaly “transformed” the AP photo into something far more meaningful than something that was meant to show merely the fact that Clooney and Obama held a presser. The only thing that might go against Fairey is the fact that it was a creative photograph….though the photographer did little to arrange it and used it for news purposes….indeed not a case altering fact.

    I don’t fully understand the controversy….if I’m a judge, this doesn’t get passed the pleadings.

    My full analysis is on my blog.

    I imagine Larry can’t actually say anything because he is apparently on the case.

  11. Dino! says:

    This is a very tricky situation since it’s not so much a matter of whether or not Shepard Fairey copied the photo, but rather who owns the rights to the photo and whether or not the owner can exercise his or her rights.

    Andy Warhol copied images and photos intentionally, that was his art form. Shepard Fairey was a street artist, but now he is a fine artist / graphic artist. He does commercial work, he runs several businesses, and so I believe that he should know better and take responsibility. This is also regardless of what the cause is, nonprofit or not, the image was lifted from a photo. How much different it is from the photo will be decided in court and the suit decided accordingly.

    I question his claim to fair use when back in April 2008 he ordered graphic artist Baxter Orr to cease and desist for his visual commentary on Fairey’s work. Is this a double standard?

  12. Tim says:

    best I could do as far as similar photos….an AP photo nonetheless –

  13. @Tim: Just finished reading your analysis @ < Thanks for bringing things into a clear and fair perspective!

  14. Tim says:

    Well Dino,

    It doesnt’ matter much that Fairey runs several businesses, what matters is what this poster was used for, which was a non profit political expression. Also, any fair use claim by that Baxter fellow would probably be made under parody, since it’s a completely different analysis than here…where not only was the poster made for a different purpose and send a clearly different message, but it also looks completely different.

    It also doesn’t matter that Warhol’s business was copying images….a professional infringer is an infringer no less.

    This is also regardless of what the cause is, nonprofit or not, the image was lifted from a photo. This is actually wrong…the law says what it is for does matter…the statute lays out the factors. Fair use by definition says you lifted the photo….Fairey admits in his complain that he used the AP photo.

  15. Tim says:

    I appreciate the support M. David….however that link seems to not work for some reason….here is a link I hope does work –

  16. A Mal says:

    I’m not sure if it is directly useful, but in the process of looking for a similar Obama photo, I came across a photo of JFK in a very similar pose. One could argue that Fairey was emulating both this historic photo and the contemporary Obama photo, to further emphasize the Obama/Kennedy similarities.

  17. Brad says:

    @M. David,

    The problem with the examples you give is that they are about works that bear striking resemblances (e.g. the play) or are mere interpretations (e.g. the sculpture). But the HOPE poster isn’t either of those things: it’s a direct digital copy which was then digitally altered. The details I pointed out in my first comment all suggest not that Fairey was inspired by Garcia’s photo, nor looking at it on his desk, but that he opened it in photoshop and used various filters to transform it into his poster. He was manipulating a direct copy. This is why Fairey is on MUCH shakier ground than if he’d merely painted it on canvas while looking at the photo.

    I am, however, just playing devil’s advocate. I’m thrilled that Stanford is taking on this case, and hope they are able to use it to gain back some ground for all of us. I don’t know enough about the laws involved to know whether Fairey’s work is actually fair use, but I know that it ought to be.

  18. Here is an example that I will also send via email, but which is too interesting not to post.

    Thích Quảng Ðức in Oreos:

  19. Steve says:

    Don’t know if this will help, but here are two paintings based on photo published under CC license. and

  20. @Tim: Whoops! Looks like the MT engine assumed the period at the end was part of the URL. I just updated it so it now correctly points to the blog entry. Thanks for catching the error!

  21. David says:

    In the UK the press made a big deal out of Jack Vettriano using direct copies of photos for his work

    Hope this helps

  22. @Brad: You bring out some good points that I hadn’t considered. Thanks for giving me something to think about!

    That said, glad to see your overall attitude and approach to all of this! I certainly do appreciate it when people take the time to look at things from each of the various perspectives before rushing to any specific judgement, and it’s obvious that’s exactly what you’ve done.

    M:D.HatTip => Brad. 🙂

  23. Edgedoo says:

    Just wondering if you could use Microsoft Live Labs Photosynth in any way to obtain the images that may be similar to these. I am sure people will find for you images from very sources, but the work on Photosynth could also be relevant. Best of luck.

  24. You can use the reverse image search engine to find additional Hope photographs and illustrations. Here is a link to a search I just performed using the image in your blog post but you can also use single images (from your collage) and look at the results. Here is my first set of results:

  25. Dan says:

    I was at a Warhol exhibit this weekend, and it made me mad on behalf of Fairey. It looked like although Warhol used some of his own photographs as the basis of his work (Like Marilyn Monroe or his athletes series), many of his pieces are based on photos of historical figures like in the Americans series. I think his use of the photo changes is different enough to be fair use!

  26. Mark says:

    I don’t understand the point of searching for a fair use photo. Because Fairey is on record admitting to having used the AP photo, I do not see how finding some other similar photo helps his case at all. Is the idea that he would, then, lie and argue that he was mistaken when he said that he used the AP photo and that in reality, he actually used some other image someone on the Internet dug up?

    In reference to “examples of photos used as visual references,” there’s this:

    In reference to legal precedent for the Fairey case, there’s this:

    “An artist may avoid infringement by intentionally making sufficient changes so that the works at issue undercut substantial similarity. Warner Bros. v. ABC, 720 F.2d 231, 241 (2d Cir. 1983).

    “The more complex issue of substantial similarity [is determined by] …. whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).”

    “What is protected [under our copyright laws] is the original or unique way that an author expresses his ideas, concepts, principles or processes. In looking at the two works of art to determine whether they are substantially similar, focus must be on the similarity of expression of an idea or a fact, not on the similarity of the ideas or concepts themselves. Durham Indus. v. Tomy Corp. 630 F.2d 905 (2d Cir. 1980). It is not, therefore, the idea … which is protected, but rather … expression of this idea — as caught in placement, in the particular light, and in the expressions of the subjects — that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable.”

    Closed case IMHO, since Fairey’s reproduction undeniably has a “charming and unique character” that significantly differs from the “charming and unique character” of the AP photo. AP needs to GTFO.

  27. Robert Anderson, NY,NY says:

    Did he actually “copy” the photograph? No – he actually “interpreted” part of the photograph in a different medium. Seems like a fair use.

  28. Em says:

    My guess is that the point of finding other photos that closely resemble the AP photo is to illustrate that even if Fairey did copy that photo, that there are so many other photos out there that capture essentially the same look and the same pose, that Fairey’s copying is irrelevant to the market for the AP image, in part, because the AP image is fungible with a number of other photos.

  29. Oliver says:

    “visual references for other works of art”

    Would a photo-still from a famous Hollywood movie count? Doesn’t every other painter with a stand at Fisherman’s Wharf or other tourist site sell their renditions of iconic photos of Marilyn or Elvis or whoever?

  30. weatherman says:

    I’m not sure that the headline of this article is accurate. Wouldn’t a fair use claim presume copyright infringement? Isn’t saying that the painting is a non-infringing derivative work a different defense than fair use?

    I think what you’re going for here, and what might be supported by other photographs showing Pres. Obama in much the same pose, is more of a scène à faire defense rather than a fair use claim.

  31. David says:

    But which was does that cut? If the AP photo is really unique, then ruling no fair use harms freedom of speech. On the other hand, if the photo is fungible, then a license should be cheap, or he could have even used the creative commons photo!

  32. Em says:

    @David – In a purely fair use analysis, I would argue that the fourth fair use factor almost certainly cuts in favor of Fairey and that the image he created has no discernable impact on the market for the AP’s photo. The issue is not whether he could have used a different photo and/or obtained the rights through a license, but that it doesn’t matter – he didn’t need to because his use of the work constituted a fair use.

    So, the entering of other similar photographs into evidence would not be the primary evidence of fair use, but rather background supporting evidence to show that frankly, the AP’s photograph is entitled to only the bear minimum of protection because there are so many non-infringing *actual substitutes* out there.

    This is only my speculation, as practice on the transactional side, not the litigation side, though.

    @weatherman – Fairey has admitted to copying the AP photo – under U.S. copyright law, copyright owners have the exclusive right to authorize derivatives, so an unauthorized admitted derivative use of a work is by definition an infringement unless a defence, such as fair use, applies to make it non-infringing.

  33. Alan says:

    My comment at Concurring Opinions: This is one of the most dramatic illustrations I have seen of Fairey’s copyright violation. Fairey’s poster took the original shading of Garcia’s photograph and turned it into four distinct colors: white, light grey, red and dark grey. The white parts of Fairey’s poster correspond the the best lit areas of Obama’s face; the light grey corresponds to the areas that are one step down in illumination; the red another step down; and the dark grey, the least illuminated portions. In other words, there is a clear correspondence between the illumination in Garcia’s photo and the four colors in Fairey’s poster. If Fairey had preferred the lighting in Jurvetson’s photo, he could have used that instead, in which case, the coloration pattern in his poster would have looked dramatically different. The fact is though that Fairey preferred the shading captured by Garcia and that is why he used it. Furthermore, there can be no doubt that the illumination captured by Garcia is one of the creative elements of his photo to which he holds the copyright. Fairey’s use of this same lightening pattern, even though he changed the colors, is a clear violation of Garcia’s copyright.

  34. Steve Baba says:

    It’s clear from the contradictory comments that it’s not a clear cut issue.

    While it seems like Web2.0 (really Utopian 44.0) activists have got the creating fear to create interest down, for test cases, one finds the worst (guilty) OR best (innocent) case (the best, few really separate but equal schools) and argues that it’s wrong. You don’t take a maybe guilty person or a maybe bad policy are argue one way or the other.

    Where did you guys learn activism? On the web? It’s like learning sex from online sex.

  35. Dino! says:


    Although Shepard Fairey may have directed all the profits to the Obama campaign, doesn’t the organization have to be a legal nonprofit for Fairey’s profits to be considered nonprofit?

    By the way, this is a very fascinating situation, so thank you for the feedback.

  36. Tim says:

    @ Em, Thank you for an explanation on the need for identical photographs. I had not thought of the market prong and the impact identical photos would have.

    @ Alan, the analysis you gave to the shading is the best argument I’ve seen against the “transformative work” prong of the copyright fair use test. Though I would say it doesn’t make it a clear violation of Garcia’s copyright….for one, I believe the AP holds the copyright – I think she was working for the AP at the time or at least sold the license or something – second, that’s just one prong of the fair use analysis. It goes on from there.

  37. Tim says:

    @ Dino,

    There is no statutory scheme for deciding the commercial factor of the fair use prong. Traditionally this analysis was aimed at letting use in non-profit educational settings, however it is not limited to that. Judges will generally decide for themselves whether the party who copied the original work received profit or any monetary gain directly from the new work (note getting something for free you normally would pay for counts as profiting). Here, Fairey did not gain any direct profit from the posters themselves. The posters may have lead to other opportunities that he may very well have profited from, but this in no way makes it a commercial enterprise. Further helping this idea is the fact that it was specifically gifted to the Obama campaign for use in a political campaign which depicts a specific desire to not use it for direct profit.

    Now just for everyone, here is the Fair Use portion of the Copyright Act.

    § 107. Limitations on exclusive rights: Fair use

    Notwithstanding the provisions of sections 106 and 106A [17 USCS §§ 106 and 106A], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

  38. I am just a person who has looked at the two photographs and the one artist’s rendering that appear at the top. I know almost nothing about copyright law and have nothing of substance to contribute. To me there is, in a sense, no significant relationshp between Shepard Fairey’s beautiful creation and the perfectly fine but rather ordinary photographs of the President. Not in a million years would anyone ever mistake Fairey’s work for the AP photo. Not in ten million years would anyone think that the AP could or would produce anything of the kind or quality of Fairey’s work. I would have thought that the AP was all about setting ideas and information free not hanging on to it for dear life trying to benefit from the pure happenstance that Fairey used a photograph that may or may not be the AP photo to create a work of art. Perhaps whoever is in charge of the AP’s decision making on this litigation is a personal injury lawyer at heart thrilled at the prospect of a windfall beyond his or her imagination and far out of proportion to the whatever, if anything, the AP contributed to a work of the sole, proximate cause of which was Fairey’s creative imagination. That said one would think that reasonable people of good will could sort this out over a cup of coffee along the lines of Fairey 90%, AP 10% without dragging the law into it.

  39. joy g says:

    (sorry, I think the tinyurl I provided didn’t make it through your comment spam filter – I was trying to avoid posting the long link below)

    Susan Meiselas’ photograph (source image):

    My painting:

  40. Tim says:

    It has come to my attention that the photograph of Obama to the left up there is not part of a larger photo as I thought it was…I thought the famous photo was a zoomed in version of a photo of Clooney and Obama sitting together…and did so based on something I read long ago. That alters my “amount copied” analysis slightly. That prong now becomes a wash in my opinion or slightly favors the AP. It however does not change my conclusion. I also still think the amount copied is not entirely substantial because he only used the shapes, not the coloring or shading.

  41. Steven Clark says:

    I think two things count against Fairey in my mind (regardless of the court action). First, he just went to Google Images as a free resource and didn’t concern himself with bothering to contact the original photographer, who in most cases would have said great go ahead with it. IF they’d said no, as AP apparently would, there were enough similar photos that would have sufficed…

    The second thing is Shepard Fairey’s attitude toward Baxter Orr with a cease and desist over the OBEY image… it’s a litte hypocritcal to expect that respect when it’s not given. Does Baxter Orr have the artistic right to use images in the same way? Unfortunately OBEY is worth money… which seems to always be the point of these suits whether it’s mickey mouse or this one.

    Legally, it will be an interesting case and I look forward to hearing more about it.

  42. Steve Baba says:

    “not entirely substantial because he only used the shapes, not the coloring or shading.”

    I think the accusation is that Failey not only looked at the photo as many artists do ” as a visual reference,” but that he photoshopped the AP digital picture. It’s hard to tell since I don’t think the AP filed any legal documents yet, only Fairey and Stanford filed papers.

    “During that call, the AP’s attorney explained the AP had special technology to detect the source of the photo used to create Obama Hope. The AP’s attorney stated the AP owned the rights tothe photograph Fairey used to create Obama Hope, demanded payment for Fairey’s use of theAP photo, and stated the AP expected to be paid a portion of any money Fairey might make from his work.”

  43. James Day says:

    I’d be looking for evidence that the AP photo lacks original creativity and hence receives no copyright protection at all. Consider a celebrity who stikes a pose and 50 photographers immediately take almost identical photographs. Did any of the photographers exercise original creativity? What were the original and creative elements, if any?

    Was the celebrity who set up the shot really the one exercising the creativity? Perhaps the original creativity was Obama’s in his choice of pose and general staging of the situation.

    It’s already been established that it’s MLK who owned the copyright of his famous speech, not the broadcasters who made copies of it. Different situation, but still interesting.

  44. Alexandra Heifetz says:

    My father did a sketch of my mother in 1977. When he began to toy with the digital medium three decades later, he returned to this sketch, among others, to create entirely new work, some of which is up for sale. He considers both the first sketches and the digital images to be original works and submits the later work in a local competitions, etc, as such.

    What about these competitions? If he were to print one copy of this blue-colored sketch, then would this be the original work to submit? Or is he to submit the work on disk?

    Now, this seemingly has little to do with the Fairey situation, but at a closer look it also seems possible that we’re dealing with the same philosophical, if not also legal (though that’s not my forte), questions. If one artist can do several renditions of a scene or object, and if each of these works can be sold as originals, or are understood as originals, then technically we’re granting originality to the real-life object and not merely the first work in the series to have been painted. When dealing with two artists, it seems originality should operate no differently, as inspiration itself is, as far as I know–and I could be wrong–without legal definition.

    How to define inspitation vs. infringement? Do we search pixel by pixel with? Perhaps, but in the case of my father’s work, and also with Fairey’s, color, sharpness, shadows, and qualities unnameable by words, grant value to the ‘later’ work. And if you can’t search a sculpture or a sketch by pixel as you can a photograph, then this technique is anyway useless.

    See the sketch here, if it’s of interest–

    Anyhow, looking forward to the NYPL event.

  45. Kathy says:

    This may be interesting for you, it is a blog post by a professional textile designer about her design process:

    As you can see, she explains that this lovely fabric design:

    was inspired by this photograph:

  46. Steve Baba says:

    Copyright only requires “minimal creativity” not “original creativity.”
    I am not a lawyer, but I never heard of any case where a human photographer taking a picture did not meet the minimal creativity requirements.
    While the MLK estate owns the copyright to his speech, if you regive the speech with permission or with fair use for a film or debate club, you also acquire rights not to the original but against anyone using your version – which is fortunate for Fairey or the AP might 100% own his Obama work.
    I think, but am not sure, that the broadcasters who filmed MLK’s speech had some copyrights to their film, as did MLK to his words, but don’t think any were crass enough to demand payment for a famous speech.

  47. David says:

    Em, I would argue that the fourth factor almost certainly cuts AGAINST fair use. AP makes millions of dollars licensing its photos, and those license rights include the right to make derivative works. If derivative works could just make out a fair use defense, then there goes the market. See American Geophysical Union v. Texaco, Inc (2d Cir, Newman):

    “Despite Texaco’s claims to the contrary, it is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier. This notion is not inherently troubling: it is sensible that a particular unauthorized use should be considered “more fair” when there is no ready market or means to pay for the use, while such an unauthorized use should be considered “less fair” when there is a ready market or means to pay for the use. The vice of circular reasoning arises only if the availability of payment is conclusive against fair use.”

    There’s a ready market to pay for the work, AP grants licenses left and right.

  48. Janine says:

    My observation about these three images is that the pose is similar but the lighting is completely different. Mannie Garcia’s photo is lit with classic Rembrandt lighting where the light comes from the upper left and matches the posterized shading on Fairey’s poster. The lighting on the Jurvetson photo, however, is from the side right and is not a match.

  49. Here’s a good summery of the discovery, along with another photo (from Reuters) that is close, but not quite it. The article has fun mouse-overs showing how similar the painting is to the two photos in question.

  50. Steve Baba says:

    Does anyone know enough about the digital watermarks that the AP uses to tell if there is a watermark in the poster? Or if it’s even possible to tell if a digital watermark is there?

  51. Tim says:

    @ Steve Baba – they were crass enough:

    Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 CASE SUMMARY

    OVERVIEW: Plaintiff, the estate of a well-known civil rights leader, sued defendant to enforce plaintiff’s copyright of a highly publicized speech given by the deceased. Summary judgment granted for defendant was reversed. The record did not support finding, as a matter of law, that a general publication of the speech divested plaintiff of the copyright. The speech was delivered to a large audience at a highly publicized event, but the number of people involved was not determinative. News coverage was solicited, but that also was not determinative. The heart of the issue was whether the speech was delivered in such a manner that the public was given dominion or control over it. Facts pertaining to that issue remained in dispute.

    @ David – They do give licenses out left and right of their photos. But those are real life photo correct? Meaning, would anybody who wanted the Garcia photo for their news story or perhaps a book, which is what I assume the AP licenses their photo’s out for, instead use Fairey’s artwork? I would assume anybody wishing to obtain a license for an AP photo of Obama is going to want a real photo, not one like Fairey – again this is for the market prong – so would anybody the AP would sell the rights in this photo to, wish to use it for this kind of work? Is there a cognizable market for that? If you say the right to license includes the right to derivative work and call it a day don’t you knock out the market prong of fair use entirely? Meaning, if the hypothetical chance that somebody might want THIS photo to create a work LIKE Faireys is enough to end Fairey’s claim, does that not destroy that part of the fair use test because ANY derivative work would then hurt the market?

  52. Itchy says:

    Seems to me, he’s admitted using the AP owned pic, and even if he recanted, it’s obvious.
    Either he met the statuary standard for altering an appropriated work, or he didn’t.
    If he didn’t, then he’s certainly capitalized a shit-ton on someone else’s property, w/o permission.
    Plus he’s got a history of bad actions.
    If the case could set a dangerous precedent, then we should crowdsource an appeal to him to settle.
    A lot of anonymous segregation protestors were asked to take their lumps and passed over until the NAACP found the perfect test case in Rosa Parks.
    And Shephard Fairey is surely no Rosa Parks.

  53. Steve Baba says:

    My guess is that Fairey will settle right before he has to answer pre-trial questions under oath to avoid extreme embarrassment.

    Also I don’t think photographers, professional and amateur, are going to appreciate free-culture types saying that their work is not creative since it only took a second to snap a picture.

  54. loto says:

    Here’s a good summery of the discovery, along with another photo (from Reuters) that is close, but not quite it. The article has fun mouse-overs showing how similar the painting is to the two photos in question

  55. Steve Baba says:

    Now that I think about it, isn’t this an opportunity to promote using LEGAL Creative Commons photos – and help the amateur photographers become famous – as opposed to argue for taking commercial photos.

    Google does try to attach meaning to photos by having users tag them in some online “game.” Maybe Creative Commons already does so, but it would useful if one could search legal pictures tagged with say Obama and hope or Obama and thoughtful.

  56. Steve Baba says:

    I was not looking at the time, but now that I think about it didn’t the Obama campaign have little OFFICAL use of the Fairey pictures likely because they googled him and saw nothing but trouble? No one in their right mind would buy or use anything from him with confidence it was not copied. Some amateur grass root organizations used the pictures.

    Nice of people like Lessig to drag President Obama’s name through the mud, undeserving, with Fairey.

  57. Renee Hobbs says:

    Can an animated little bird and a skater girl help young people learn about the concept of intellectual property? Can a “Schoolhouse Rock” style music video help people appreciate their social responsibilities and rights under copyright law?

    Researchers at Temple University’s Media Education Lab have created two animated music videos to clarify the purpose of copyright and the doctrine of fair use. Catchy lyricsand clever visuals help people understand how “context and situation determine how fair use applies” to the use of copyrighted materials. A solid understanding of copyright and fair use is especially important for theuse of remix practices that are now common on You Tube, MySpace and othersocial networking sites. That’s why they’ve posted their music videos to You Tube.

    Check out “Users’ Rights, Section 107” at

  58. Kate Hyde says:

    the great distinction between inspiring source photo and subsequent painting, and the extreme difference in their context, seems relevant here. ie how even if a painting is inspired from a photo, its purpose/meaning in culture is very different.
    So here the argument is: to say it’s ‘derived’ from a photo lacks understanding of the process.

    Check out testimony of very highly respected Robert Bechtle on this subject at SFMOMA.

  59. Steve Baba says:

    If it gets that far, I would expect the AP’s lawyers to use someone like Robert Bechtel to explain that Fairey SKIPPED the process and the decisions normal painters make when Fairey digitally copied the picture.

  60. YM says:

    There are many pieces of digital art created by the software Studio Artist from Synthetik Software. Ones made from obama pictures are at

    This software uses photos (or videos) for source lines and color and then applies filters over them to make them look like painting.

  61. Rick says:

    Good interview with Fairey and Garcia now running on NPR.

  62. G says:

    I’m concerned that we will end up extending “fair use” to the point that corporations will be able to use works without paying compensation. Fairey was not running a non-profit. He made revenue from these posters. It is great that he used the money for a good cause, but ObeyGiant is a company not a non-profit. If he wins it is going to open doors that we many never be able to push back. Think about that.

  63. Maria Popova says:

    The cultural detriments of copyright law continue to amaze me. After all, isn’t copyright law supposed to be simply an incentive for creators to create? Shepard Fairey’s creation is, without a doubt, one of graphic design’s most important cultural contributions of our time – not so with a mundane AP photograph by a political paparazzo who will forever remain nameless. I don’t mean to belittle photo journalists’ work but, rather, to point out that in this case, copyright law hinders rather than incentivizing culturally significant creation.

    As an antidote to this, I recently had first-hand experience with how this sort of issue is handled correctly – I launched TEDify, modest project paying tribute to the TED conference by remixing sound clips from different TED talks to form audiovisual collages that convey certain messages. This, of course, violates TED’s copyright – of their logo, of the audio and video material, of their entire organization. BUT, the team at TED was extremely supportive of this totally user-generated derivative work, they worked with me to work out the details and actually helped me promote the project.

    TED, of course, is an exemplar of intellect and cultural aptitude. So I wasn’t surprised. I just wish we’d see this sort of context-informed approach on a larger scale, rather than the narrow and limited clinging to antiquated and idiotic laws that we see in the Shepard Fairey / AP case.

  64. rumspring says:

    I just want to coin the phrase “Scenes A Fairey.”

    I’ll let you all decide what it means, but remember it is my IP and you must attribute it to me when you use it.

  65. rumspring says:

    While I’m at it, why don’t I coin the phrase “Fairey Use” while I’m at it. I’m not sure exactly how these phrases should be used in characterizing particular applications of the the Fair Use and Scenes A Fair concepts relevant to the Fairey v. AP affair, but I assume more learned minds will find ways to use them.

    So, it would be nice of anyone who uses the the new phrases I’ve coined “Senes A Fairey,” and “Fairey Use” to properly attribute them to me. After all, it is my creative work to which I would like to claim intellectual property rights. And you all can assign your own meaning to my creations and repeat them a few hundred thousand times elsewhere at your own expense as part of your creative works to make them into something. But remember to attribute them to me when they make their way into the dictionary.

    Meanwhile, my creativity is spent, so I’ll sit back, relax, and just wait for someone to make something of my creations…

  66. Richard says:

    Hey, I just saw this floating around Twitter, thought it was a perfect example of what Lessig writes about in ReMix.

  67. jen says:

    FYI, Warhol took his own photos for the most part.

  68. Anonymous says:

    This is a passage from an article by Paul Edward Geller for the Journal of the Copyright Society of the USA. I’m sure the representation of Fairey is more than adequate but I thought this was very well stated and could be applied to Fairey’s reworking of the Obama image (this passage discusses Van Gogh’s riffing on Hiroshige’s woodblock prints):

    Suppose, for example, that making prints with Hiroshige’s woodblocks takes technical skill, but not creativity: the resulting copies are routine. [cite to Bridgeman v. Corel]. Hiroshige may invoke his core right to stop the printer from disseminating such mechanically produced copies, which represent only Hiroshige’s “own” creations. But we can tell Hiroshige’s prints and Van Gogh’s studies apart at a glance: while copying the earlier artist’s creation, the later artist has woven in substance that could not have been routinely generated. From one’s prints to the other’s studies, composition goes from static to dynamic, coloration from muted to emphatic, and emotional tone *181 changes altogether. Under our second principle, Hiroshige may not stop Van Gogh from disseminating the later studies, which represent Van Gogh’s “own” creations. [FN70] Creators should rather be left free to contribute to our culture as they rework it.

    55 J. Copyright Soc’y U.S.A. 165

  69. While I’m at it, why don’t I coin the phrase “Fairey Use” while I’m at it. I’m not sure exactly how these phrases should be used in characterizing particular applications of the the Fair Use and Scenes A Fair concepts relevant to the Fairey v. AP affair, but I assume more learned minds will find ways to use them.

  70. cars says:

    Good interview with Fairey and Garcia now running on NPR

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