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.
Not too long ago, I was approached by a newspaper (Journal Le Droit, a large daily newspaper distributing print in the Ottawa-Hull area) asking if I would allow them to print a few of my pictures in an upcoming special feature on a nearby town, Rockland, Ontario. Having photographed much of Rockland in the past three years, I gladly accepted and figured that I could somewhat benefit from some exposure.
Just to make sure, I asked if they were offering monetary compensation. They responded that a photo-credit would be placed at the bottom of the image in lieu of payment. Why not? 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…
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.
If you’ve been following us for a while you may remember the Hope poster lawsuit we reported on in January of 2010. The case pitted artist Shepard Fairey against the AP and Mannie Garcia over a photograph Garcia had taken of President Obama. Fairey, who ultimately lost the case when he admitted to having destroyed and falsified evidence, was claiming that his poster fit the definition of fair use.
Today we have a similar issue of photographs that have been altered artistically, only the players have changed to music photographer Jim Marshall’s Estate vs. Thierry Guetta (Mr. Brainwash) and Google. Read more…
I’ve got a little story for you today, and a valuable lesson for photographers everywhere. On the Monday before last, a post that I wrote the week before started to go viral. I was receiving more traffic than I had ever experienced before, and from sites that I had never heard of. Fantastic. Only, along with the good news, we have some bad news. Read more…
Photo-sharing site Pinterest, the new darling of social media, has a copyright infringement cloud hanging over its head. The fact that anyone can upload and share copyrighted photographs through the site has prompted many sites — most notably Flickr — to ban “pinning” for copyrighted works. Up to this point, Pinterest has tried to avoid legal trouble by having a Terms of Service that places all the blame for copyright infringement on its users, but a new solution may be on the horizon: mandatory captions. Requiring users to comment on pinned photos may cause the sharing to be protected under “fair use” because it becomes the subject of “commentary”.
Nikon caused a stir this past weekend after it was revealed that a promo video shown during the D800′s launch in Bangkok actually contained footage that was both used without permission and that wasn’t even captured with a Nikon D800. After a recording of the promo was uploaded to YouTube in mid-February, people began coming forward with reports that Nikon had used their videos without permission. Read more…