Fair use and art as interpretation

Apparently the AP is going after the artist who created a poster of Obama based on one of their photographs. From TechCrunch:

    The Associated Press is on the wrong [side] of a fair use argument again. It is actually going after artist Shepard Fairey for his iconic Obama poster, which it recently discovered was based on an AP news photograph by Mannie Garcia. The poster is clearly based on that photograph (see comparison at left), but this is exactly the kind of use of copyrighted works that is meant to be protected.

    The poster is art. The image it is based on has been sufficiently transformed that even the AP did not know it owned the copyright to the underlying work until a few weeks ago. And Fairey says he hasn’t made any money from the poster, although others have . . .

    . . . Fair use is under attack, and the AP is leading the charge. Artists like Fairey take copyrighted images and reinterpret them all the time. Many argue that is what art is. Fairey’s Obama poster certainly made a bigger impact on our culture than the original image, which he reportedly found by doing a Google image search.


I have to side with TechCrunch here, who has officially banned the AP from their website for just this kind of thing. It’s not a copy, it’s an interpretation, and a pretty good one at that — personal politics aside. Thoughts?

Fairey’s poster spawned the Obamicon tool from Paste Magazine. I messed around with it and created the following:


About pcNielsen
Paul Nielsen founded The Aesthetic Elevator late in 2005. He owns a piece of paper, located somewhere in his house (not on the wall), stating that he earned a B.F.A. from the University of Nebraska around about 2001. While there, he studied studied architecture, graphic design and ceramics, graduating with a degree in studio art. Paul presently serves as communications manager for a small non-profit doing their print design and marketing. He spends as much time sculpting in his studio as possible — which is not nearly enough. Visit his website at pcNielsen.com.

4 Responses to Fair use and art as interpretation

  1. Tim J. says:

    I think it’s pretty clearly a case of fair use. There is obviously some genuine interpretation of the photo going on, and the photo was used as a reference – a source of information – rather than being copied.

    The AP might just see the chance for a quick buck, but I think it more likely that they want to intimidate other artists who might be thinking of doing something similar.

  2. suburbanlife says:

    I also think this is an example of fair use – it is an interpretation, generally messed with a fair bit. On the other hand, this posterized way of working an image is nothing new – 30 years ago I posterized and silkscreened in red white and blue an photographic portrait of myself after messing with the negative in the darkroom and making posterized effects in printing the negative. It amuses me that this technique is considered as something novel with those much younger than myself who have little cultural reference memory. Andy Warhol also used source photos made by others in many of his works. If he were a practising artist these days, he’d be a sitting duck for lawsuits of all kinds,
    Really, with the common availability of image altering technologies, anyone can take someone else’s image and alter it creatively. The question of copyright is gradually being weakened by the ubiquity of technologies with which to make easy alterations that are then considered extensions of an image, or departure from the image original. G

  3. We must answer the following riddle: When is a photograph no longer a photograph?

    Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.

    The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.

    There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.

    Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.

    Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.

    The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.

    Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other–all remain perfectly distinct and identical to the original.

    Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction–but photographic nonetheless.

    We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.


  4. pNielsen says:

    Thanks for the link Lloyd.

    I can’t make a comparison to the case you’ve cited though since there are no images attached to the link. However, it’s not just a matter of posterization and color change in Shepard’s image, where the background and composition are significantly different than photograph. The angle of the face, the position within the frame (thereby showing more of the tie and allowing space to add a button) are significantly different.

    Further, how many other images out there could be so similar to the AP photo? Frankly, it’s not the most unique composition, and thousands of photographs are taken of candidates on the campaign trail.

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