Friday, February 20, 2009

What is copyright infringement?

[UPDATED WITH NEW LINKS] In the newest edition of Obe Lincoln, I take on the hot topic of copyright infringement as it pertains to the Shepard Fairey Obama HOPE poster.

I drew the above picture freehand, obviously copying the Shepard Fairey Obama HOPE poster, which copied Mannie Garcia's (or the AP's) photo. I changed the image to add Baxter Orr's SARS mask. I used ink pens that weren't the same color as the Fairey poster, so I put it on Photoshop to adjust the colors to be closer to Fairey's colors (and to deal with the shortcomings of my crappy scanner). Any difference between this image and Fairey's image is a result of my failure to draw it perfectly freehand, not a result of a conscious attempt to make a significant transformation.

So, am I guilty of copyright infringement?

If you haven't been following the AP/Garcia v Fairey copyright lawsuit(s?), then you're missing out. I'm not a lawyer, but it's pretty fascinating stuff in terms of the questions that arise about art, photography, copyright, ownership, access, appropriation, theft, hypocrisy, consistency, ethics, greed, and creation. Not a bad list, eh? Check it out:

AP threatens to sue Fairey.
Fairey sues the AP.
Fairey's Obey Giant website.
Fairey on Charlie Rose.
Hypocrisy? Fairey threatens to sue Orr.
Orr had appropriated and changed Obey Giant with a SARS mask.
A discussion on copyright and fair use law.
The law.
More discussion on the law.
A blogging copyright lawyer weighs in.
Another blogging copyright lawyer weighs in.
The debate is on,
And on,
And on,
And on,
And on.
And then there's parody. One of the landmark cases about parody is Leibovitz v Paramount Pictures, in which the Naked Gun 33&1/3 parody of the pregnant Demi Moore Vanity Fair cover was upheld as fair use.
Here are a few other interesting cases.
And if all that doesn't have you confused yet, check out this article that points out that parody is protected, but satire is not. I hope the writer of that article, Jesse Walker, won't mind if I quote this insightful analysis:

"In the press or the academy, it's considered normal for more than one interpretation of a piece of art to coexist. In a courtroom, only one interpretation will enjoy the blessing of the law, and there's no guarantee that a judge playing critic for a day will agree with [the defendant's] subtle analysis."


Dewy24 said...

Nice post Linky.

Dan said...

This from a guy who hasn't posted since the primaries.

Let's just say that I have a dog in this fight so I'm being careful about what I write on a public forum.

akboognish said...

I think you have a good argument for parody.

For folks who don't know what's going on (all those links are tough): Dan is combining Fairey's (arguably) copyrighted-infringing image of Obama with Orr's sars mask which Fairey himself claimed was a copyright violation (because Orr placed it originally on Fairey's Giant image, itself the subject of a previous copyright battle).

I think it qualifies as parody because it's directly attacking the copyright infringement by Fairey (AP Obama photo) with a copyright infringement of Fairey (sars mask) in a piece that infringes on both copyrights (if they are copyrighted at all).

I think parody is a stronger argument than just fair use, because I don't know if I'd say that this is a significant enough transformation of either piece (the sars mask is arguably being used in exactly the same way that Orr himself used it, for example).

Regardless, this is a great piece of art and commentary. Bravo!

Dan said...

Alright, I'll fix the damn links.

Parody was what I was going for. I was trying to avoid significant transformations other than the natural artistic ones that occur when doing an original piece in a new medium, without actually transforming from the first image (photoshop, tracing, etc). I was trying to question as many of the questionable elements of both situations and the law at the same time. It's probably copyright infringement according to the law, but is probably exempt from liability since it qualifies as a parody under the fair use law. Or so, it would seem. Copyright infringement law is at least as confusing as Kant's Critique of Pure Reason to the layperson.

Thanks for the bravo.

Dan said...

This image was mentioned on

Dan said...

and on