CORRECTION: December 7, 2009.
Additional facts have altered the meaning of this post. The reader should be aware of this news story, recently brought to my attention.
by Ed Shanahan
IP Law & Business
November 11, 2009 //
It’s fair to say that artist Shepard Fairey threw something of a wrench into his copyright fight with The Associated Press last month when he admitted lying — and then fabricating and destroying evidence to cover up the truth — about which AP photo he used as the basis for his iconic “Obama Hope” poster…. [MORE]
Now, the original post:
According to the generally moronic and seldom-read (in these parts) Huffington Post, the AP has counter-sued Shepard Fairey over the Obama picture, etcetera, ad nauseum.
But what struck me was their “exhibit” to show how Fairey had ripped them off:
Except that this is a lie.
I suppose that this nuance is lost on the layman, so let me explain a little.
Oh hell, AP’s ALREADY lying here with the photo comparison above. The original photo was much larger, a two or three shot with George Clooney to Obama’s right (our left) and AP has CROPPED their photo to make it appear that Fairey made little change . The original photo, BTW, was taken on assignment to get CLOONEY, who was appearing at a Darfur presentation of some sort.
original AP file photo by FREELANCE photog Garcia
THAT kind of lying with pictures ought to clue us in to AP’s approach.
You see, a big part of Fairey’s “Fair Use” defense lies in the concept of “transformative” and cropping is part of that. By RECROPPING to Fairey’s take, AP is, in essence STEALING one of Fairey’s transformative acts, and, is, in a very real sense, lying with their “exhibit.” (And CHANGED his colors, which are ALSO integral to Fairey’s composition, please note.)
Somehow, instead of Shepard Fairey morphing his piece directly from the AP photo, the AP is morphing THEIR photo into Fairey’s composition!
Fairey was interviewed at length on NPR’s Fresh Air last month, as was the photographer, Manny Garcia, who noted that AP was claiming rights for itself that they weren’t bothering to share with HIM.
Gee. If anybody’s ripping off all that composition and highfalutin’ artistickiness here, AP sure seems like the pot calling the kettle black. But NOT showing the original photo, and cropping it to LOOK as though Fairey had ripped it straight off, composition and all is just plain dishonest, whatever one may think of Fairey’s transformative use of “derived” art.
And it isn’t cut and dried. Listen to a legal expert.
Please don’t litigate the case here. Go over, instead, to the Huffington Post and join the chorus of “art experts” and “legal experts” proving Lincoln’s old adage:
Better to keep silent and be thought a fool than to open one’s mouth and remove all doubt.
Something to keep in mind.
UPDATE 15 Feb 2010 – From the New York Times:
January 27, 2010, 1:51 PM
By ROBIN POGREBIN
A criminal investigation is pending against the artist Shepard Fairey in connection with his use of an Associated Press photograph of Barack Obama, Judge Alvin K. Hellerstein of the Southern District of New York revealed in a hearing on Tuesday, a lawyer involved in the case said on Wednesday…