[A2k] L. Gordon Crovitz in the Wall Street Journal: The Fine Art of Copyrigh

[Thiru Balasubramaniam]

http://online.wsj.com/article/SB123716866712036921.html

     * OPINION: INFORMATION AGE
     * MARCH 16, 2009, 5:51 A.M. ET

The Fine Art of Copyright

       By L. GORDON CROVITZ


Technology makes it easy to lift parts of someone else's music, video
or other digital creations, tweak it, and call the result one's own.
This usually causes no harm, but the case of a photo-turned-poster of
Barack Obama is a reminder that just because technology makes
something possible doesn't make it right.

Until the digital age, the common view of copyright law was that it
served overreaching corporations against creative little guys. Groucho
Marx once generated publicity for the Marx Brothers film "A Night in
Casablanca" by playing on this cynicism. Warner Bros. asked for the
plot of the film, fearing it would spoof its Humphrey Bogart classic,
"Casablanca." Groucho Marx responded with a letter threatening a
counterclaim against Warner for using the word "Brothers."
[Information Age] Associated Press

Now disputes are as likely to be little guy versus little guy, with
artists and photographers split over the Obama case. One side defends
poster artist Shepard Fairey, while the other cries foul on behalf of
freelance photographer Mannie Garcia, who took a striking photo in
2006 while on assignment for the Associated Press of then Sen. Barack
Obama gazing off to one side. Mr. Fairey discovered the photo on
Google and used it, without crediting the photographer, to create the
"Hope" poster. With Mr. Fairey's permission, the Obama campaign widely
used this image to support the candidate.

Earlier this year, New York gallery organizer James Danziger was
planning a show featuring Obama campaign art, including the Fairey
poster. He wondered whose photo had been used, but Mr. Fairey refused
to say. Online searching found it to be Mr. Garcia's photo. When the
AP learned the poster was based on its photo, it sought standard
licensing terms from Mr. Fairey, who refused. Instead, Mr. Fairey sued
the AP, which has counterclaimed.

It's not clear who wins as a matter of law. The concept of "fair use"
is broad, but photographers argue that the lighting, angle and much of
the art of the poster, which seems to have been digitally created, was
in the photo. Mr. Garcia, a veteran war photographer, worked hard for
the image. "I'm on my knees, I'm down low, and I'm just trying to make
a nice, clean head shot," he told National Public Radio. "I'm looking
and waiting. I'm waiting for him to turn his head a little bit. . . .
Boom. I was there. I was ready."

Mr. Garcia was irritated when he learned Mr. Fairey had used his
photo. "When I found out, I was disappointed in the fact that someone
was able to go onto the Internet and take something that doesn't
belong to them and then use it," he said. "That part of this whole
story is crucial for people to understand: that simply because it's on
the Internet doesn't mean it's free for the taking, and just because
you can take it doesn't mean it belongs to you."

The AP countersuit notes that the poster has generated revenues in the
hundreds of thousands of dollars, such as $60 sweatshirts on Mr.
Fairey's Web site. The news agency, a nonprofit, earns its revenues by
licensing content, including its library of 10 million images.

As for Mr. Fairey, instead of agreeing on a licensing fee, he worked
with Stanford University's Fair Use Project to sue the AP, claiming
that the poster was fair use of the photo. The Stanford group, founded
by Lawrence Lessig, favors fewer protections for copyright. In Mr.
Lessig's recent book, "Remix," he rightly criticized many copyright
claims. He cited the lawsuit brought by Universal Music against a
woman for posting on YouTube an amusing clip of her infant dancing to
a song by Prince. There's no opportunity to license snippets of songs
and no harm done to Prince.

But this case is different. The AP and Mr. Garcia make their livings
selling their work. As a reader commented on Mr. Lessig's blog, "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."

The less-copyright-is-always-better crowd has an odd champion in Mr.
Fairey. He earned street cred by being arrested for graffiti and uses
imagery from Che Guevara and the Black Panthers, but such rebellion is
now so establishment that he designed a current ad campaign for Saks
Fifth Avenue. He and his lawyers often complain about alleged
infringements of his copyrights by other designers.

Digital technology complicates copyright, but technology doesn't
override the importance of showing respect for the work of others. Mr.
Danziger, the gallery organizer who exhibited the Fairey showing, says
it was "inappropriate to not credit or reveal the source" and that
"there's an implication that defining yourself as an 'artist' as
opposed to a 'photographer' makes you more important and gives you
special privilege." He's doing his part to correct the situation by
selling prints of the photograph, signed by Mr. Garcia.

Write: informationage@wsj.com

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997