Created in His Image

An artist has sued the Associated Press in order to preempt being sued. Shephard Fairey allegedly found this photograph by freelance photographer Mannie Garcia on the Internet and used it as the basis for his now famous "Hope" poster featuring President Barack Obama.

http://www.nytimes.com/2009/02/10/arts/design/10fair.html

I thought this article was relevant, given the discussion we had in class on Monday regarding whether it is legal to replicate photographs of the Statue of Liberty or the Brooklyn Bridge, etc., by taking new shots from the same angle, distance, and during the same conditions as famous photos. 

The A.P. had wanted Fairey to settle out of court and donate some of the earnings he received from his "Hope" poster to the A.P. Emergency Relief Fund, which supports A.P. journalists around the world who suffer personal losses due to natural disasters or conflicts. Shephard Fairey's lawyer contends that the photo was used merely as inspiration and that it falls under the "fair use" exceptions to copyright law.

If Anthony T. Falzone, Fairey's lawyer, were worth his salt, he would continue to scour the Internet for photographs of Obama, a political and public figure, that mirror Garcia's in terms of the angle, facial expression, and position of the head. The truth is, people who had earlier combed the Internet trying to find the photograph that inspired Fairey's piece of art came up with many such photos in the process. They had debated which one it was for a long time. That in and of itself could prove that Fairey used not just one, but many images as "inspiration." Alternatively, it could show in a court of law that the A.P. cannot prove with any real certainty which photo was the basis for the image on the poster. If they cannot do that, they cannot win their case.

Having worked in a medium in which artists used photographs as references daily and transformed the pictures into something more magical and inspiring than the original, I clearly (at the moment) fall on their the side in the debate. In addition, the fees that photographers expect other artists to pay simply to base new works on their images almost amounts to extortion. (I get that photographers need to protect their craft and make a living, but they need to be more reasonable in their expectations for compensation.) In the future, artists out there, always base your new piece of art on at least two different photographs. You will get in far less trouble with photo agencies.