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

[Jeffrey A. Williams]

Thiru and all,

  I think in this particular case, given that all facts of same are
not yet fully known, is really based on whether "Fair Use" was
extant, and whether the photo in question that was used was
or was not in the public domain when copied for use.  How it
was used, however successful or profitable of course is an
issue but not a relevant issue in respect to "Fair Use" or
"Public Domain"  Did or did not, the originator of this photo
file for a copyright?  If not, his claim is very questionable.  If
he did, his claim is much stronger.  AP's counterclaim is likely
fallacious and defensive in nature, depending on the particulars
of the claim of course, and Mr. Fairey's may be as well depending
on which statutes he filed under regarding.  Mr. Garcia may indeed
have a case as it was his original photo used if indeed he had it
copywritten.  If not, again his claim is weak.

  On an ethical and non-legal note however Mr. Fairey should have
notified Mr. Garcia of what he was going to use Mr. Garcia's photo
for and offered a licensing agreement of some sort before doing so.

Thiru Balasubramaniam wrote:

> 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
>
> ------------------------------------------------------------
>
> Thiru Balasubramaniam
> Geneva Representative
> Knowledge Ecology International (KEI)
> thiru@keionline.org
>
> Tel: +41 22 791 6727
> Mobile: +41 76 508 0997
>
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Regards,

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