Posts Tagged ‘fairuse’

No Jail Time for Fairey, Artist Punished with Fine and Probation

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.”

Image credit: Shepard Fairey at the ICA by WBUR

Newspaper Agrees to Pay Woman $400 After Sparking Debate Over Fair Use

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.
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Copyright Suit Against Tumblr May Affect All Photo Sharing Sites

Back in 2006, a pornography publishing company named Perfect 10 attempted to sue Google over copyright infringement, claiming that the thumbnails displayed on Google’s image search did not fall under “fair use.” Ultimately, the Supreme Court wouldn’t even hear the case, allowing the ruling that thumbnails are fair use to stand and handing Perfect 10 yet another loss (they’ve sustained many in this area).
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How Much Pixelation is Needed Before a Photo Becomes ‘Transformed’?

In 2009 Andy Baio of — founder of and former CTO of Kickstarter — created Kind of Bloop, an 8-bit tribute album to the best-selling jazz album of all time, Kind of Blue by Miles Davis. While Baio meticulously licensed all the music he used to create the album, he released a pixelated version of the original album cover (top, second from left) without licensing it, believing it was different and low-res enough to be considered fair use. He was then sued by the photographer, Jay Maisel, who “felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated […]”.
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Photographer Victorious in Copyright Lawsuit Against Graffiti Artist

Turns out turning photographs into stencils isn’t transformative enough to be defended as “fair use”. In a case that has many similarities to the Shepard Fairey vs. AP legal battle, a judge ruled earlier this week against graffiti artist Thierry Guetta after Guetta (AKA Mr. Brainwash) had used a “stencil-ized” photo of Run DMC by Glen E. Friedman to promote an exhibition, concluding that Guetta’s piece didn’t differ enough from the original image to be considered fair use.

What are your thoughts on this issue? How much does a photograph need to be transformed before it is considered a new piece of art?

(via Boing Boing)

Image credits: Photograph of Run DMC by Glen E. Friedman

“Rephotographer” Richard Prince Loses Copyright Infringement Case

Update: The ruling has been overturned, and a judge has ruled that Prince’s usage is fair use.

Richard Prince, the artist who “rephotographed” a cigarette advertisement and had it sell for more than $1 million, has just lost a copyright infringement lawsuit after being sued by photographer Patrick Cariou. Prince had taken 41 photographs made by Cariou from the book Yes, Rasta, modified them in various ways (sometimes minor), and displayed them at a gallery exhibition as his own work (above is one of Cariou’s photos on the left with Prince’s piece on the right). The exhibition went on to generate over $10 million for Prince and the gallery.
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Photographer Claims Daily Mail Stole TwitPic Photos

Earlier this month, the Daily Mail published some photos taken at a Dalston polling station during the British General Election by Emily James of Just Do It.

James’ photos were originally uploaded via TwitPic. Later, they were republished on several other sites, including The Guardian and Times Online, initially without permission or compensation. However, The Guardian and Times both offered James retroactive compensation. The Times offered £250 for using one photo, along with a brief emailed apology for using the image without permission.

The Daily Mail, however, initially incorrectly credited the image to someone else, then removed the credit line altogether.  James sent them with an invoice for £1170 — a rate set at £130 and multiplied by three per image to compensate for their lack of knowledge or permission.

The picture editor at the Daily Mail responded, saying:

Thanks for the invoice.

Unfortunately we cannot pay the amount you have requested, these images were taken from twitpic and therefore placed in the public domain, also after consultation with Twitter they have always asked us to byline images by the username of the account holder.

We are more that happy to pay for the images but we’ll only be paying £40 per image.

James, aware of the difference between TwitPic and Twitter Terms of Service, responded to the Daily Mail:

I’m afraid that you are wrong about the terms of publishing on Twitpic. If you read the terms of service you will see that copyright is clearly retained by the poster:

Third parties who wish to reproduce posted images must contact the copyright holder and seek permission.

You should have contacted me if you wanted to use the photos, as every other news outlet did. had you done so, you might have been in a position to get the photos for £40’s each.

However you didn’t contact me, even though this would have been very easy to do, nor did you inform me that you had used them. Instead, I had to uncover that you had used them, that one of them was not credited even with the correct twitter account, and that none were credited as I would have asked them to be.

James and the crew at Just Do It Films say they are still waiting for full payment and an apology.

This seems to be a similar issue that photojournalist Daniel Morel has with news agency AFP over whether images distributed over TwitPic and Twitter warrant free public distribution.

(via British Journal of Photography)

Photographer Wins $588 in Court, Al Gore’s Current TV Wants It Back

Former Vice President Al Gore’s company, Current TV is in a legal tussle with San Francisco photographer Ken Light over the rights to a photo Light took of a prison inmate. Current TV, which was recently in national headlines when two of its journalists were detained in North Korea, allegedly used Light’s image of a death row inmate without his permission. Light says the company posted his image on the Current TV site for several weeks without responding to the photographer’s requests for payment.

In order to expedite his case, Light took his case to the small claims court, and managed to win a suit against Current TV for unfair business practices in February. Light was awarded a small $588 to cover his court costs and small fee compensation for the image, which Light says was an amount most other users would have paid.

Light originally shot the image for an award-winning piece in The New Yorker about wrongfully convicted death row inmates. The image was bought and used in several other publications.

At the time of his win, Light told PDNPulse that he felt his win was a “victory on principle”:

“Maybe if we attacked in small claims court and won, some of these companies might be more careful,” Light concludes.

However, Light’s victory may be short lived. In a surprising move, Current TV has motioned for an appeal — they want their $588 back.

PDNPulse reports that Current TV has appealed to the San Francisco Superior Court, meaning that the media company may be investing much more into their defense. PDN notes that the company will be paying much more for the proceedings to happen, but it appears they are trying to defend their claim that the image was considered fair use and did not require permission or payment.

(via PDNPulse)

Public Art Lands Photog in Hot Water

In February 2008, Seattle-based photographer Mike Hipple received a letter from the lawyers of sculptor Jack Mackie that one of his stock photographs infringed upon Mackie’s copyright. Shown above, the photograph includes a portion of Mackie’s “Dance Steps on Broadway”, a public art piece created in 1979 with public funds.

Though the stock agency complied immediately with Mackie’s demands by removing the image and providing a settlement, Mackie is now suing Hipple for “copyright infringement and claiming the full measure of statutory damages, possibly $60,000 or more.” On the blog Hipple set up to collect defense fund donations, he states,

Now if this doesn’t qualify as fair use of the sculpture, I don’t know what does. “Fair Use” is a legal concept that allows a certain amount of copying of someone else’s work—you can get a fuller idea of how it works at the Stanford Fair Use Project website.

Think of it this way: if Mr. Mackie is correct and this isn’t fair use, then he can file a $60,000 law suit against anyone who, when strolling along Capitol Hill, thinks the dance steps are nice and takes a photo or video. He may not find you if you just leave the image on your camera or computer, but as soon as you post it to Facebook, Flickr, YouTube, etc., he can (and apparently will) sue you.

What do you think? Is this a case of copyright infringement or fair use?

(via A Photo Editor)

Image credit: Photo by Mike Hipple. Screenshot from Motion to Dismiss on Photo Attorney

Obama “Hope” Artist Faces Criminal Investigation Over Use of Photo

A judge announced this past Tuesday that artist Shepard Fairey is under criminal investigation for the improper use of Obama’s photograph in his iconic “Hope” poster. Fairey has spent months locked in a legal battle with the AP and photographer Mannie Garcia, who captured the original photograph. The AP demanded credit and compensation for the photograph, while Fairey believes his poster fits the definition of fair use.

The legal battle is actually a pretty complicated story. Fairey fired the opening shot by filing a lawsuit against the AP last February, asking for a ruling that his use of the photograph did not violate copyrights. Within a month the AP filed a suit of its own, claiming a violation of copyright.

The original photographer, Mannie Garcia, believes the copyright to the photograph is his own and not the APs, and was actually quoted saying,

If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.

However, in July 2009, Garcia joined in the legal battle, siding with the AP in claiming copyright infringement, while accusing the AP of wrongfully claiming copyright to the photograph he shot.

Fairey’s downfall came in October 2009, when he admitted that he had destroyed and falsified evidence in the case, writing on his website,

In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone,

As a result of this revelation, his lawyers announced that they would no longer represent him in this case, and Tuesday’s announcement is simply the latest installment of this long, complicated, and ugly case.

The moral of the story? Get permission folks!