Cultural Diversity and Inclusion in the Arts in New York State’s Southern Tier
This month, a few controversies came up, both dealing with President Obama’s image (or the perception of his portrayal). I was interested in these controversies mainly because they have to do with artists’ rights.
This is going to get long, so this post will only be about the Fairey/Associated Press squabble. The next post will be about the New York Post editorial cartoon.
Here’s the photo, at left, poster, along with the poster that Fairey acknowledges he made from it:
I am most intrigued by this controversy because of the question of which artists’ rights are worth protecting more. Current U.S. copyright law gives the right to create copies or derivative works exclusively to the copyright holder. But, in order not to become too stifling on the actions of people who do not own the copyright, it permits works to be used, without the rights holder’s permission, under the “fair use doctrine.” Section 107 of the copyright law spells out four factors that judges must use in determining whether a use of copyrighted work is fair:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The idea is that a copyright holder can’t exert unreasonably stifling control over the work; rather, they are limited to what the lawmakers and judges consider reasonable. (The problem is, since not every example of fair use is spelled out in the law, it means judges have to decide on a case-by-case basis. So, in some disputes, the “little guy” may have a valid fair use rationale, but not the energy to take such a dispute to court. So if you choose to reproduce a work under the fair use doctrine, it is smart to understand your rationale, and perhaps even declare it, when you appropriate works protected by copyright.)
The similarities between the two works are striking, as are the differences. To my eye, it looks like Fairey took the AP’s image of Obama that used millions of colors (in an additive color process), knocked out the background, enlarged it, and rendered much of its lightness and darkness values using only dark red, dark blue and light blue over an off-white background (in a subtractive color process), at least as a starting point before adorning the image with other changes.
(That’s assuming that he painted it on a beige background; if he used computer-designed stencils based on a screen representation in software, then it would be a process that started in an additive color process, but eventually was done in a subtractive color process.)
I don’t know how Fairey did it, but if I were going to do it, I’d open the source image on a computer program, and convert it to four colors using some sort of threshold for the conversion (say, the darkest 25% will be black, the lightest 25% will be white, and the midtones will be the two other grays). Then I’d smooth it out so it didn’t look so algorithmic. Then I’d change the darkest color to dark blue ink, the dark midtones to red ink, the lighter midtones to light blue ink, and the white to no ink.) .
I’m not saying that’s Fairey’s process. But other people that think algorithmically have come up with a way to quickly do the same thing to any image instantly. Paste Magazine’s Obamicon.Me made it easy to make some similar (though simple) art of myself using a picture I had laying around on my hard drive:
The side of my face was overexposed, so there wasn’t a lot of detail in that part of my face for the algorithm to process; still, the interface that Paste Magazine provided divided the 4 colors into lightness and darkness regions of 25% each; since each image is different, those numbers won’t work for every image, but they’re great starting points. I tweaked the sliders a bit to get to something I liked (I wanted my eyes to be dark blue). It looked kind of yucky, but the last step smoothed it out, making it a lot easier to look at.
I don’t know what Shepard Fairey does to make his images, but I would imagine that a judge considering the case might want to take that into account.
It’s interesting that Fairey and his lawyer, Anthony Falzone, executive director of the Fair Use Project at Stanford University, consider the AP photograph represented in the Obama poster “fair use”; that acknowledges that it is necessarily a copy or derivative work of the AP image used, and indeed could not exist at all without the AP image as a source, rather than being a wholly original work.
So, I’ll play judge based on the four “fair use” factors from 17 USC 107:
1) The purpose and character of use, including whether it’s commercial or for nonprofit educational purposes: I think it’s neither commercial nor nonprofit educational. Fairey makes no profit on the image, but it’s not both nonprofit and educational, because it has no educational purpose. At the same time, it’s not used to promote a product or service, which makes it not commercial. Its purpose is to promote Obama. It’s not as if there’s a compelling interest for the law to allow Fairey to use that specific image of Obama in order to promote him, or that Fairey’s ability to promote Obama through a derivative work of art would be significantly or unreasonably squelched by the AP denying permission to use the image. The Obama campaign, with whom Fairey worked when he made the poster, should have had access to a pile of great Obama images that they owned the rights to. Fairey could have used any of those images (or met with Obama to create a new source photograph of his own) in order to make the image. One point for the AP.
2) The nature of the copyrighted work: It is a (rather ordinary) news photograph. It is supposed to represent reality. The AP has a very strong interest in its work not being used to promote anything, as it is trying to present itself as an objective, neutral reporter of news. That’s why it, and other news organizations, tend to have strict policies on third parties using its images for promotional purposes. One point for the AP. (But the AP is asking for compensation, which weakens my supposition that they don’t want third parties to use the image for a valiant reason… it could be they just don’t want them to use them without paying. That would set a weird precedent for journalists who are trying to be objective.)
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: both Fairey and the AP agree that the AP image was the source for the brightness and darkness values used in the image. Even though Fairey made some changes, the biggest content change (aside from the simplification of lightness and darkness values) was discarding or replacing the background, which, arguably, means he kept the most significant parts of the image, while discarding the least significant part. One more point for the AP.
4) The effect of the use upon the potential market for or value of the copyrighted work:
I don’t think the use negatively affects the market for, or value of, the news image. (It’s an old image from 2006. It would be valuable as a file image, but there’s rarely a need to use a file image of the President, since he is around cameras all the time, so its value as file art would be pretty low. If anything, the controversy has made the image more valuable. One point for Fairey. But, the controversy also made the image into a visual aid about the controversy, giving newspapers and art/law textbook writers a fair use rationale to use the image for free, thus making the market for the image larger, but eliminating its value to zero for that purpose. Since that market would not exist without the controversy, I don’t think that its value of zero is a problem. No point for the AP.
Jason’s opinion: The purpose of fair use law is to protect speech or publication that would otherwise not be possible, while allowing copyright holders to keep a reasonable number of rights specified in copyright law. Could Shepard Fairey, an internationally famous artist with connections to the Obama campaign, after talking to the campaign and being encouraged by them to make a poster, have promoted Obama without using the AP image? Yes. There’s no reason for him to trample on the rights of the copyright holders. Fairey’s use of the AP image was not fair, I think.
Additional note: It’s entirely possible that the AP doesn’t have the rights to the image in the first place. The photographer, Mannie Garcia, said in a Feb. 5 interview at Photo Business News and Forum that he never signed away the copyright to the AP. So, my reasoning above should be understood as supposing that AP actually owns the rights to the image.