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Friday, February 6, 2009

Trust In Art

Tom Jones

Creatives should respect each other. Tom Jones sings other people's songs. The albums credit the songwriters and publishers. Simple. It's called not stealing. How can someone who truly believes in creativity choose not to willingly give credit where due? If anybody'd follow the ol' golden rule, I'd think it'd be people who supposedly create personal expressions for public presentation.

A very cool cat wrote about Fairey's Obama campaign image and the legal dispute between the AP, who owns the original photograph that Fairey manipulated into the now incredibly famous image, and the artist. Fairey redily admits that he used the image, but won't give credit substantively. Nice. Nice message.

Now, legally, I know I'm ok doing what I do vis-a-vis the photographer and publisher because I'm not infringing on the right or ability of the image copyright owner to sell and reproduce for sale the original image. Fairey took some else's photo and directly and indirectly created and reproduced products for sale and claims it's ok under the guise of political action. True, the AP hadn't used the image themselves, but Fairey did find it online, so it was published. True, the AP is only taking reactionary measures now that the image is part of pop culture, but there's no time restriction to contest a copyright violation.

Is it fair use though? Well, Fairey's done it many times, trying to make money behind a thinly veiled attempt at social commentary, and not giving credit. It's called give and take. He's even copyrighted his own images that blatantly use someone else's with simply his famous "OBEY" logo on it for mass reproduction. Nice. Way to be.

Now it may be that Fairey has not yet financially profitted from the image directly. Then it would fall to those who are, like the publisher who included the poster image in a book about the campaign, to compensate the AP. It's just a mess that wouldn't have been created if he'd been upfront.

Any photographer or publisher who has a problem with my painting a portrait based on their photo, I'll respect to the utmost. I'll credit them, stop painting that specific portrait, license it, whatever within reason. Not because what I'm doing is wrong. Because giving due credit is right.


Tom Jones 02/06/09


m said...

I don't think affecting the creator of the source material's ability to profit off their piece is the only criteria though for violating copyright.

It's a pretty complex issue in my opinion. I've started a post on this issue too and have looked into it off and for years. It really interests me because I do a lot of portraits and I frequenty draw and paint from photos (often my own photos) rather than life or imagination (though I do the latter too).

From what I've read and understand (and I'm no expert) the two criteria for copyright infringement are using a work without permission from the copyright holder, and whether your piece would to the average viewer resemble the copyrighted source material.

Then if those criteria are in play, you could look to see if fair use applies as a defense, in which case you'd look at all four of the following criteria:

1. the purpose and character of the work (was it for personal profit or public good, was copyright ignored in bad faith)

2. the nature of the source material (was it a creative work itself etc.)

3. amount of the source material used/copied (a small piece of the entire work)

4. effect of "copied" work on the original piece's value and profitiability in the market, which is the point you cite in your post

Whether the piece is a parody or satire also affects the fair use issue. There is more leeway in such cases but there are still strict criteria involved even in those cases.

Here's the piece I got the above from. It's an interesting article that offers a pretty clear and thorough explanation and analysis of the issue (more clear than I've seen anywhere else) through the lens of a lawsuit against Jeff Koons.

Koons's case was pretty cut and dry it seems, given the criteria, but in general I think the issue is pretty complex. (Link below)

d.edlen said...

@msblog - You're right. I did simplify the legalities and I shouldn't have used the word "infringing". I should have said "harming". When I started out selling these pieces, I bought Crawford's "Legal Guide for the Visual Artist", which lays out the issue the same way you have.

As with all creative endeavors, legal issues are rarely clear-cut. It seems most published opinions believe fair use can only be determined on a case-by-case basis. Factors like how copyrightable the original was and a commonsense view are important details that flesh out the legal language as it is applied in particular cases.

All I can do is respond in good faith to any communication that comes my way about copyright infringement. Fairey apparently chooses time and time again to force the legal route as part of his persona, or he's just a jerk. And now he's been arrested for outstanding warrants. Great example. I'll do the opposite of him.

And I hope someday my wife will be able to take the photographs I base my paintings on!

Thanks for the comment!


m said...

I agree, with the law so much is about interpretation. I agree with taking the approach of erring on the side of caution instead of its opposite. And as you've made clear here, it's not just about caution as in CYA but also about respecting others' work and giving credit where it's due.

As for Fairey's work I haven't familiarized myself enough with his side of things (mainly I haven't heard his perspective and why he considers his work fair use of the source material or whatever else his reasoning is for his approach), so I can't form much of an opinion on that. Thanks for your response, appreciate it.

wicked said...

I'm really at odds with this whole thing. I understand his "political statement" and am all in favour of artistic rebellion, but I don't know this artist or his "statement" well enough. I need to do more research. it certainly has caused a cafuffle