Obama images and not-so-fair use?

obamaphotoposter200 The image of US President Barack Obama that you see here is one of the iconic symbols of the man and what so many people believe this image embodies.

The poster image on the right is one that captured so many imaginations during the presidential election campaign last year and through the inauguration last month.

It became the avatar of choice for many, the Obama icon, with its brave word ‘Hope’ as well as its word variants such as ‘Progress’ and ‘Change.’ It inspired thousands of image variants as people also created their own likenesses in a similar style (I did that, too).

That poster was created by Los Angeles-based street artist Shepard Fairey and the original now hangs in the National Portrait Gallery in Washington.

The source for Fairey’s inspiration has now become clear, and it has opened up what could become a complex (and costly) legal issue surrounding copyright and fair use.

According to a report from the Associated Press, Fairey’s poster is based on an AP photograph taken in April 2006 by photographer Manny Garcia on assignment for the AP at the National Press Club in Washington.

Garcia makes it clear on his website that he took the original photo.

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees, says the AP, claiming rights under fair use custom as per US copyright law.

The AP makes a strong argument for credit and compensation.

On buttons, posters and Web sites, the image was everywhere during last year’s presidential campaign: A pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white and blue and underlined with the caption HOPE.

Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers, has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.

I’m no lawyer but results like that look like they go way beyond what you could reasonably understand ‘fair use’ to mean. The lawyers are surely going to have a field day.

And waiting in the wings is the White House who have already made moves to protect ‘brand Obama’ from being exploited.

Expect this story to grow into a full-blown kerfuffle if no agreement is reached soon.

Related – the kerfuffle last summer over the AP’s attempts to enforce a “pay-as-you-quote” system for using any AP-distributed content on your website or blog.

(Also related: our FIR Interview with Media Bloggers Association president Robert Cox last July on the mediating role the association played to help resolve that issue.)

They didn’t have a lot of sympathy at the time in the blogosphere (nor in some mainstream media quarters) for their aggressive approach. I’d say they might gain some sympathy this time, depending on how they go about it.

Kid gloves, AP, not ham fists.

[Update Jan 12, 2011:] In a press release issued today, the AP says they and Shepard Fairley have reached an agreement to settle their pending copyright infringement lawsuit over rights in the Obama Hope poster and related merchandise.

[…] In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.

(Via Steve Rubel)

Neville Hobson

Social Strategist, Communicator, Writer, and Podcaster with a curiosity for tech and how people use it. Believer in an Internet for everyone. Early adopter (and leaver) and experimenter with social media. Occasional test pilot of shiny new objects. Avid tea drinker.

  1. Russell

    This is very tenuous, esp when considered in light of the ref to Warhol. The latter of course actually took photographs and re-pressed them as art and then encouraged others to copy his original. As you say, a field day for the legals in any event.


  2. Lloyd Shugart

    We must answer the following riddle: When is a photograph no longer a photograph?

    Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.

    The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.

    There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.

    Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.

    Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.

    The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.

    Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other–all remain perfectly distinct and identical to the original.

    Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction–but photographic nonetheless.

    We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.


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