Shepard Fairey avoided jail time after all. The Obama HOPE poster artist was sentenced today to two years of probation and a $25,000 fine for using an AP photo without permission and then destroying evidence to cover his tracks. The New York Times writes that the entire dispute will be an interesting case study for fair use law:
When the case began in 2009, Mr. Fairey argued that his use of Associated Press imagery constituted fair use under copyright law. But the civil lawsuit was settled before that question was decided, and the two sides agreed to financial terms that were not disclosed. The parties also agreed to share the rights to make posters and merchandise bearing the “Hope” image. Mr. Fairey maintained that he had never personally profited from sales of the image, a contention The A.P. disputed.
[...] Until the settlement between Mr. Fairey and The Associated Press, the case was watched closely as one that might define more clearly the murky issues surrounding the fair-use exceptions to copyright protections. One of the central questions was whether Mr. Fairey’s creation, which became ubiquitous on street corners and T-shirts during and after Mr. Obama’s campaign, constituted a “transformative” use of the photograph, a use that is allowed under the law so that creative expression is not stifled.
In his official statement on the matter, AP CEO Gary Pruitt states, “We hope this case will serve as a clear reminder to all of the importance of fair compensation for those who gather and produce original news content.”
Shepard Fairey has spent the past few years fighting a messy legal battle with photographer Mannie Garcia and the Associated Press over his use of a portrait of Obama his iconic HOPE poster. He has raked in a significant amount of dough from the artwork, but may now face jail time for foolishly attempting to destroy evidence when the copyright infringement investigation began. The Smoking Gun reports,
[...] the Department of Justice has filed a memorandum arguing that a prison term for the 42-year-old artist would be “appropriate.” However, prosecutors did not specify how long Fairey should be incarcerated (though, statutorily, his punishment would not exceed six months). Additionally, government lawyers have contended that Judge Frank Maas could fine Fairey up to $3.2 million.
[...] Levy stated that Fairey reaped significant reputational and financial benefits from the Obama “Hope” image, which was created in early-2008. The prosecutor specifically cited the escalating combined profits of three Fairey companies, which grossed $2.93 million in 2007, $4.59 million in 2008, and $6.08 million in 2009.
Fairey has already admitted that he deleted digital files and created fake ones in an effort to avoid the copyright infringement case that was being brought against him. Fairey agreed to pay a settlement to the AP in early 2011, but continues to maintain that his appropriation of the photo was fair use.
Try imagining a make-believe creature that has absolutely no basis in reality. Can you? Not really. The truth is, everything imaginary is simply a rehash of things that actually exist… just in a combination that doesn’t exist. Aliens are simply strange combinations of humans and other creatures that we know. Unicorns are horses with horns. Bigfoot is some guy that accidentally spilled Rogaine all over his body.
This is the basis for writer Kirby Ferguson’s big idea: that “everything is a remix.” He created a popular four part video series on this topic over the past year, and recently he was invited by TED to give the condensed, sub-10-minute version of it that’s shown above. Read more…
You know that FBI anti-piracy seal that appears at the beginning of home movies? The one that’s displayed alongside the messsage, “The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain is investigated by the FBI and is punishable by fines and federal imprisonment”? Well, you can now use it to remind would-be infringers that your photographs are copyrighted.
Prior to a new policy that was enacted this past week, only certain members of the entertainment and software industries were allow to display the warning. Now, all copyright holders in the US — including photographers — can make use of the Anti-Piracy Warning (APW) seal and message. Read more…
The Portland Press Herald has agreed to fork over $400 to a woman named Audrey Ann Slade after its use of one of Slade’s photos sparked a furious fair use debate online. The paper published a story last week about Reverend Robert Carlson, a minister who committed suicide recently after being accused of abusing young boys. Specifically, the piece reported on the fact that Slade’s photos proved that Carlson continued to engage in on-campus events after resigning abruptly in 2006 from his position as chaplain.
It decided to publish one of Slade’s photographs — both online and in print — showing Carlson at a 2010 ceremony held on campus grounds. Problem was, they badly mishandled the process, and neither contacted Slade nor attributed the photos to her. Read more…
Watermarks are a popular way of “signing” photographs and deterring theft, but having a giant logo overlaid on your images can ruin the viewing experience. Photographer Klaus Herrmann has one solution: integrated watermarks. He writes,
[Watermarking] seems to be a viable way of protecting your images from online theft, but a watermark can ruin a photo if placed carelessly. Indeed, with a semi-transparent giant piece of text (and maybe Comic Sans as a font) written straight across the image, many people won’t bother looking at the image for more than a second. I have been applying watermarks (or, to be more precise, signatures) to my images for some time now, but I use a different philosophy by making it an integral part of each image, almost as if it was there in the original scene.
He has written up a tutorial on how you can make your watermark look like part of your photo. It’s a pretty time-intensive process, but could be useful for sharing fine-art photography online.
The UK government issued an updated copyright policy statement today that’s intended to modernize copyright law in a digital era. But here’s where those traditionally protected under copyright — authors, poets, artists, photographers and so forth — begin to cringe: sweeping definitions of “orphan works” and Extended Collective Licensing could allow companies to buy chunks of content without compensating original authors. Read more…
It’s difficult to ignore the fact that photographers are finding it harder to get paid for their work now more than ever, but a recent altercation between concert photographer Dan DeSlover and the band Alter Bridge took on a different dynamic — criticizing a photographer for asking to get paid. Read more…
Clockwise from top left: Jay Lee's original photograph, a screenshot of Google Image Search results, and a screenshot of Candice Schwager's website showing the image being used
After discovering that multiple websites had used one of his photos without permission, photographer Jay Lee began sending out DMCA takedown notifications to web hosts in an attempt to protect his copyright. One of the websites was owned by a woman named Candice Schwager, who had 14 of her sites temporarily taken offline as a result of the takedown request. Turns out Schwager is involved in both helping represent special needs children and helping a man named Louis Guthrie get elected as County Sheriff. This is where the story gets weird. Read more…
How do you go about demanding payment from a local newspaper if you discover that they’ve infringed upon your copyright? Blogger Duane Lester of All American Blogger recently found an article of his reprinted nearly verbatim, typos and all, by the Oregon Times Observer in Oregon, Missouri. He then decided to pay a visit to the newspapers offices with a letter in hand to demand payment from the editor face to face. The video above shows how the confrontation unfolded.