Hillary Paine

Digital Imagery, Copyright and Fair Use:

Shepard v The Associated Press

(http://www.aphotoeditor.com/2009/01/27/the-obama-hope-poster/)

What is at stake for digital imagery and why does it matter to you?

IDT 555

Prof. Meghan Dougherty

3 May 2009

The 2008 Presidential Election is one that will go down in history

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for a number of reasons. Even today, there is one firestorm sparked by

the campaign that is still burning strong. It is that of the “HOPE”

poster created by artist Shepard Fairey. A bit of a spark in his own

right, Fairey created the poster at the request of the Obama campaign

and could never have imagined it would gain the momentum that it

has. It is now as a visual icon, associated with Obama’s campaign

victory by people across the globe. The controversy here lies within

the origins of the image. The Associated Press (AP) claims that they

own the copyright for the photograph that was used in creating the

poster. For this reason, they are calling Fairey’s work an infringement

on their work. Fairey claims that his basis for use of the image is

covered under Fair Use Doctrine of Copyright Law and the First

Amendment.

Looking more closely at this controversy, we see that there are

two strong sides to this argument, those who believe that this is fair

use, and those who believe that this is infringement. What lies

between these two opposing sides is the law. There is legislation in

place to protect copyright holders, just the same as there is legislation

in place to protect the use of copyrighted materials. As there is not a

preset determination of either, each case is decided on an individual

basis. Deciding upon a case such as Fairey v The AP may not seem to

have a great effect on society as a whole. The fact is, this case could

potentially take away some of our First Amendment rights.

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 What we will look at in depth is digital imagery on the Internet as

it pertains to copyright and fair use. We will first explore exactly what

a digital image is, how it comes to life and how this changes traditional

copyright standards. To most, the Internet may seem to have

exploited imagery by making it readily available to many users. We

will come to find that this innate exposure to the masses has actually

helped to launch artists and their imagery farther and faster than ever

before. What we will divulge here is that within current copyright and

fair use guidelines, there is a balance between protecting and

exposing. Both are things that need to be achieved, in moderation.

Using the example of the Fairey case will help us to understand

that there is a need to keep fair use at the helm of creativity. Our First

Amendment rights depend on the proper representation of fair use and

copyright law. Limiting the use of imagery and information will only

keep everyone the same level of thinking. The eventual outcome of

limiting fair use further would be a state of stagnant information.

Ethically speaking, fair use is the loophole that keeps us moving

forward, taking the information that we have already discovered and

moving it along to the next level.

Lastly, we will look at ways to educate society on fair use

guidelines and introduce some available resources that achieve this.

There are many ways in which people misuse information on a daily

basis, mainly because they do not know what the guidelines are, let

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alone where to find them. Looking forward at such a large topic, it is

important to learn about the process of obtaining information, creative

works and knowledge properly. If we pass this information along, we

can all move forward at a better rate. Collectively, we can all benefit

from fair use and copyright laws; we just need to learn how.

History

First things first, what does copyright mean? According to the

Oxford English Dictionary, copyright is defined as “the exclusive right

given by law for a certain term of years to an author, composer,

designer, etc. to print, publish, and sell copies of his original work”

(Heller, 2004). Breaking this down, we see the need for laws in order

for copyright to have meaning. The United States began legislation as

early as 1790. Revisions were made over the years up until the

Copyright Revision Act of 1976 was passed. Taking 20 years to get

through Congress, this was the most elaborate attempt to date, to

protect creative works (Lin & Atkin, 2007). To qualify for this

protection, materials need to be fixed in a tangible medium and must

be original (“U.S. Copyright Office,” 2008)

The 1976 Act also wrote into law a fair use doctrine, and established

the set of four criteria in which others could make use of copyrighted

work. The criteria are:

1.) The purpose and character of the use, including whether such

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 use is of commercial nature or is for nonprofit, educational

purposes:

2.) The nature of the copyrighted work;

3.) The amount and sustainability of the portion used in relation to

the copyrighted work as a whole; and

4.) The effect of the use upon the potential market for or value of

the copyrighted [Copyright Act, 17 U.S.C. S107 (2008)]

(“Committee on Intellectual Property Rights,

2008).

There have been revisions and additions made in recent years in

attempt to keep up with technology. The Sonny Bono Copyright

extension Act of 1998 as well as the Digital Millennium Copyright Act

(DMCA) of 1998 both stirred social and legal conflict. The Sonny Bono

extension act added 20 years to copyrighted materials, altering the

1976 Act’s lifetime plus 50 year term to increase to lifetime of the

copyright holder plus an additional 70 years (Lin & Atkin, 2007). The

DMCA sought to bring international treaties of copyright up to speed.

It also heightens penalties for copyright infringement on the Internet.

No provision is more important for this argument than Section

106a of Copyright Act entitled the Works of Visual Art: Rights of

Attribution and Integrity, 1990. This act for the first time covered what

were called moral rights (Heller, 2004). Works of visual art that were

covered under this are act single copies of painting, drawing, print,

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photograph, or sculptural work. There is also an exception made for

multiple copies of a limited edition of fewer than 200 numbered copies

(Heller, 2004). The act gave artists the right to be named, not to be

named when they were not involved, and protection against

“modifications and destructions that are prejudicial to the artists’

honor or reputation” (Heller, 2004).

All of this said, when fair use does not cover the extend of the

work that you are looking to use; you can always seek out permission

of the copyright holder to use the work. Many people assume that just

because something is protected by law that they have to leave it alone

completely when there are processes in place by the U.S. Copyright

Office that can help a user find the copyright holder and help to attain

their permission for use of work. Since there are not set standards for

fair use, or set numbers of words that can be taken, “in cases of doubt,

The Copyright Office recommends that permission be obtained”

(2008).

Digital Image and Copyright

It is also key to define the term digital image. A digital image

refers to a two dimensional piece of work that is stored in binary code

(Hirtle, 2003). Images have moved to digital medias for preservation,

convenience, and accessibility. Since there have not been registration

notice requirements for copyright protection since 1989, most

information is protected as soon as it is created. (Hirtle, 2003). This

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includes digital images. The DMCA of 1998 explicitly allows libraries

and archives to make up to three copies of a work for “preservation

purposes” whether they are text, image or sound (Hirtle, 2003).

The problem is that digital imagery coupled with the Internet can

make images more readily accessible to the masses. “The fact that the

images may be easily available does not automatically mean they can

be reproduced and reused without permission” (CONFU, 1996). Images

that were created in other mediums and then transferred into binary

code are protected just the same as works created in binary code. The

digital image of the work may be a reproduction. Protection of

reproductions is another facet of the exclusive rights held by the

copyright owner (Hirtle, 2003). Therefore, works that are digitally

produced are still protected under copyright laws and subject to fair

use.

It is important to remember that copyright was not created to put

ideas in a lockbox. The background information here tends to make us

feel limited and restricted. “Copyright assures authors the right to

their original expression, but encourages others to build freely upon

the ideas and information conveyed by a work” (Snow, 1996).

The Argument

There is no question here that the Hope poster was derived from

the AP photo in question. We can all see in the illustration on the cover

page, this image was directly derived from the photo. The question in

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this case lies within the rights of the parties involved. Is Fairey’s use of

the image legal under the fair use doctrine? Fairey’s camp claims that

the original photo was only used as a reference and transformed it into

a “stunning, abstract and idealized visual image that created a

powerful new meaning and conveys a radically different message”

(Kennedy, 2009).

The original photograph seen here was taken by photographer

Mannie Garcia on assignment for the AP in 2006

(“The Associated Press,” 2009). Here, Obama

and George Clooney are residing on a panel

concerning genocide in Darfur. The intention of

Garcia’s work was to report news, both globally with the panel, and

nationally with the presidential candidate. By the time that Fairey

happened upon the image via Google Image searching, Garcia had

long forgotten about it. “I’ve been on the campaign trail for twenty

something months, so I would see the artwork, I would photograph it,

and think what is this image? But it didn’t snap. It never occurred to

me it was my picture. I thought ‘that’s familiar.’ “ Mannie Garcia of the

image (“A Photo Editor,” 2009). (Above image credit to www.poketo.com)

There are two things that could have been done differently in this

case that could have prevented legal action. The first of which, would

have been Fairey shooting his own photo of Obama and using that to

create a poster. The second is permission; if Fairey had asked to

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reference the photo there would not be a case.

Defendant and Counterclaim Plaintiff, Shepard Fairey, Obey

Giant Art INC.

“When the street artist and guerilla marketer Shepard Fairey got

word form the Obama campaign that they would welcome his

contribution to the campaign, he knew he wanted to create: a

phenomenon” (Booth, 2008). Phenomenon indeed, Fairey’s work has

always been somewhat controversial. In February 2009 alone he not

only opened a 20 year retrospective show of his work entitled,

“Shepard Fairey: Supply and Demand” at the Institute of Contemporary

Art in Boston, he was in court fighting an arrest associated with graffiti

charges (Howard, 2009). As if this weren’t enough he also filed a suit

against the AP claiming fair use of their image in the Hope poster.

Fairey’s legal team, The Stanford Law School Center for Internet and

Society happen to be pioneers in the field of fair use (“The Associated

Press,” 2009).

The week leading up to the counterclaim, Fairey’s lawyers were

involved in settlement talks with the AP and their team of lawyers.

They were close to resolving the issue amicably, designating that any

monetary settlement would benefit the AP Emergency Relief Fund

(Kennedy, 2009). It seems that Fairey and his team of lawyers decided

that the settlement was “a suppression of an artist’s freedom of

expression” when they terminated talks on Friday, only to file a claim in

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the U.S. District Court in Manhattan the following Monday, February 9th

(“The Associated Press,” 2009).

Aside from the legalities of the case, it seems that Fairey and his

legal team have one main priority in mind, fair use. They are fighting

to keep our rights to creativity and freedom of expression alive and

well.

Plaintiffs, The Associated Press

“AP believes it is crucial to protect photographers, who are

creators and artists. Their work should not be misappropriated by

others” (“The Associated Press,” 2009). The AP claims that they are

standing up for the rights of their photographers because they are

artists just the same as Fairey. The problem with their case is that they

seem to have a motive. Even though in their talks of settlement, they

were looking to give any monetary resolve to a charitable cause, the

basis of their claim is monetary compensation. There were not talks of

crediting Garcia for his work in the original piece, nor was there talk of

crediting themselves with the Hope poster, they just wanted to get

their cut or the profits.

It is interesting that the AP has used contracted photographers

for as long as they have been around, yet they only buy their images,

and go on to make money for themselves. That does not support their

claim of supporting their photographers as artists. This was the case

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with the Garcia image, taking the image in question while working as a

contractor for the AP. “I was not a staffer, and did not sign any

contract” (Karp, 2009). According to Garcia, he is not looking at any

lawsuits. “I know artists like to look at things; they see things and they

make stuff. It’s a really cool piece of work. I wouldn’t mind getting a

signed litho or something from the artist to put up on my wall” (“A

Photo Editor,” 2009).

It seems that the AP and their lawsuit just want to be monetarily

compensated for use of the work. The underlying question remains;

would the AP still care about infringement if Fairey’s image was not

making money?

Applicable Fair Use Guidelines:

As we have read, Section 17 USC 107 lays out the four criteria for

a fair use defense (2009). The AP is claiming that the fourth criteria

concerning market value will carry their case to victory. Looking at it

from the Plaintiff’s side of the argument, they may have won this

battle. What we need to examine for full value in the market is the

worth of the image before it was referenced by Fairey. Clearly, the

image itself was not a commodity for Garcia or the AP prior to the

release of the poster. What needs to be taken into consideration here

is the transformative nature of the poster and who is responsible for

the new market value.

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 “The goal of copyright , to promote science and the useful arts, is

generally furthered by the creation of transformative works” (Jennings,

2002). Transformative here meaning adds something new, with

different character or further purpose, altering the first wit new

message, meaning or expression Jennings, 2002). In the past we have

seen that courts rule simply changing the medium from the original

does not qualify the new work as transformative and thus is not ruled

as fair use. We need to look at the origins of the Garcia photo as a

point of reference for Fairey’s work. It is clearly recognizable when

compared side by side that the AP’s image is the underlying work.

What Fairey has done here is transformed the image from a literal

depiction of the then presidential candidate into an iconic image with

inspiring aesthetic. The “powerful new meaning” (“Stanford Report,”

2009) that Fairey’s poster conveys truly is transformative of the

original intention of the Garcia photograph.

Looking more closely at these new aesthetics, we are also

looking at a new meaning as part of the transformative defense. The

new medium of creation also ensues an entirely different angle, color

pallet and message. The high contrast red white and blue “went viral

overnight, appearing on everything from posters to T-shirts to the

cover of Time Magazine (“MTVnews, “2009). These changes all

contributed to the popularity of the image, which in turn affected the

market value substantially. I would venture to guess that before

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Fairey’s work was released, no one had approached the AP for use of

the Garcia image to put on a T-Shirt.

Speaking to market value and transformative nature in the same,

it is important to mention that Fairey was commissioned by Time

Magazine before the image was even campaign approved to use for

the cover of their Person of the Year issue (Stetler, 2008). The poster

gained so much momentum that the president himself sent a letter to

Fairey thanking him for his contribution to the campaign (Booth, 2008).

A reproduction of Fairey’s image has since been donated to the

Smithsonian Institute to become a part of the National Portrait Gallery

permanent collection (“Stanford Report,” 2009). Garcia has not yet

made mention of offers to put his photo into the National Portrait

Gallery.

Looking at the sustainability issue of fair use, there is also a

portion of the original photo that can be recognized in the Obama

poster. One question that is still looming around this case is to

whether the “copyrightable elements in the photo have been infringed

by the poster” (“A Photo Editor,” 2009). According to A Photo Editor dot

com, there is much more to the Garcia photograph that is not

considered creative work. This means that certain aspects of the

photo are not copyrightable (2009). Thus limiting the amount of

material that was copyrightable and in turn infringed upon.

The nature of the copyrighted work here could sway the

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argument either way. Garcia took the photo for news purposes. Since

the AP image was published in news periodicals, this may help the

argument for fair use, as the “artist’s expression has already occurred”

(Jennings, 2002). Fairey was looking to inspire, support and

ultimately use his creative voice to enhance the campaign of

presidential candidate Barack Obama. Analyzing the AP’s image taken

by Garcia, it does not adhere to any of the same motives as the Hope

poster.

Looking at this from the point of view of the AP, they have a

strong case here for copyright infringement. “…when someone is

making money they have little if any chance of mounting a successful

fair use defense” (“IPWatchdog,” 2009). The nature of their counter

claim in traditional copyright law may be enough to throw Fairey’s case

out completely. “Just like painters cannot take the works of

photographers and reproduce them, the works of painters and artists

cannot be taken and turned into mass produced posters and pictures

(“IPWatchdog,” 2009).

There is also a strong argument here that is outlined in section

106a of the 1990 Works of Visual Arts Act, The AP has sole right to the

photograph that Garcia took (pending they in fact own the copyright),

and they have grounds to say that “modifications” made to the work

may prejudice the artist (Heller, 2004). Seeing as Fairey did not get

permission from the AP or Garcia, the copyright holder here has a base

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to say that the use of the image was neither educational, nor nonprofit

(“U.S. Copyright Office,” 2009).

The Hope poster has become so popular that a signed poster

sold on eBay in May of 2008 for $5900 (Booth, 2009). This is just one

example of how Fairey is profiting from the use of this photograph. He

is selling silk screens from his website starting at $50 each

(“MTVnews,” 2009). Proceeds from the posters are said to be going

toward a larger statewide poster campaign. The big picture here, this

“skate-punk with a secretary” is raking in big bucks for an image that

he created without notice to who he referenced in the process (Booth,

2009).

On the behalf of the campaign, Fairey was asked to create a work

based on “a photograph that they held the rights to”

(“IPWatchdog,”2009). This way they would not have to go through

litigation pending a controversy such as this. IPWatchdog dot com also

points out that it is not surprising that Fairey decided to take this issue

to court, pointing out that with the Stanford University Fair Use Project

as his defense team, he will never pay a penny to appeal to the highest

levels possible (2009). The years and resources that this would take

are being donated pro bono is the quest to further their cause.

A ruling against Fairey here could open the floodgates for all

creative avenues to come down on fair use as a whole. Take for

instance music. 2 Live Crew was sued on the basis that they sampled

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instrumentals from Roy Orbison’s “Oh, Pretty Woman”, although the

lyrics were all but different (Dailey, 2005). In this case, the court ruled

the use of his instrumentals and minimal lyrics fair use under the

standards of the 1976 Act. The court ruled that the use was parody

and commentary, even though it was commercial in nature. This gives

the Fairey camp hope that a similar determination can be made in their

defense. Only time will tell how the courts decide. What we need to

“Hope” for is that the principles of Fairey and fair use stay alive, and

keep us moving ahead.

The Digital Dilemma

What we have at stake here is of monumental proportion. Just as

copyright was conceived to protect our “free flow of ideas” it has also

is many ways hindered that flow (Lin and Atkin, 2007). As the public,

within a democracy we need to fully understand what is at stake here.

There are many deeper issues here that we can’t even begin to divulge

including, but not limited to, the public domain, Intellectual property

and issues of international copyright standards. What we need to

navigate properly for the existence of fair use guidelines is the

Internet.

It is no surprise that the advent of the Internet has deepened the

confusion about copyright protection. As we know, digital information

is more readily available to everyone at a faster speed. Lin and Atkin

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quote Shih Ray Ku in defining for us what the digital dilemma is. “The

combination of the Internet and digital technology presents copyright

law with what has been described as a digital dilemma. On one hand,

digital technology makes it possible to make an unlimited number of

perfect copies of music, books, or videos in digital form, and through

the Internet individuals may distribute works around the world at the

speed of light” (2007).

This representation of the current state of technology and

protection could not be more accurate. We already understand the

process of digital imagery, how the Internet has complicated the issue

of copyright. What we need moving forward is an understanding of the

ethics involved in doing, for example, what Shepard Fairey did in

finding the image of reference, “grabbed a news photograph of the

candidate off the Internet” (Booth, 2009). As a student, I am guilty of

this on a frequent basis, yet I am all but covered under fair use, as

nothing that I reference either visually or otherwise could turn a

commercial profit. Fairey on the other hand, had profit in mind,

whether or not is was his priority can never be proven, but he stood to

turn a profit for the work regardless.

“Thumbnails” for instance are widely exploited by web sites.

These imprecise copies of low resolution, scaled down images are

generally used as a reference device (Jennings, 2002). Google Image

searches are used for every reason under the sun, including research

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and personal purposes. Thumbnail images such as those produced

through a Google Image search can exploit the rights of copyright

holders in many ways (Jennings, 2002). Ethically, I believe that visual

tools such as thumbnails, when used properly, are a step in the right

direction for copyright as well as visual art.

Many thumbnails can be covered under fair use practices as

transformative, since they are smaller and serve a different purpose

than the original images intended use (Jennings, 2002). Even still, the

use of a thumbnail image can promote the free flow of thinking that

copyright has intended. This is because they are more accessible than

some copyrighted images. The DMCA required some Internet service

providers to remove content even if it was protected under existing

copyright law (Sender & Decherney, 2007). This is the opposite effect

of what regulations should have when it comes to access to ideas and

images.

The same opposite effect was placed upon us with the Sonny

Bono extension act. “It will likely inhibit new forms of dissemination

through the use of new technology” (Lin & Atkin, 2007). The extension

is said to “limit the use of copyrighted material by interfering with

efforts to preserve history, cultural heritage and efforts to use that

heritage to educate our children” (Lin & Atkin, 2007). What this

extension will do is further restrict the public’s ability to gain access to

ideas, knowledge and intellectual property. This will inhibit our ability

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as a society to build upon the existing ideas for the greater good.

This example of the DMCA and the Sonny Bono Extension Act

regulation is ethically wrong. Although Fairey may end up losing his

court battle, he is fighting against protections that work to limit what

copyright was originally intended to do. “Copyright assures authors

the right to their original expression, but encourages others to build

freely upon the ideas and information conveyed by a work” (Snow,

1996). What this means to our society is that Fairey is right, it is

within our First Amendment rights to use works such as Garcia’s in

order to advance thinking and move the idea to the next level.

What we need to make a standard is fair use of information to

enable each other to advance upon the ideas and information

conveyed by work. In order to get there, we need a pre set standard of

educating each other in not only copyright standards, but the ethics

involved in taking information and building freely upon it.

Education

“Most educators are so unaware of how copyright and fair use

apply to their work” (Manzo, 2008). Being that this issue is not new,

there are already education systems in place that are teaching users

what the copyright standards are, what fair use is, and where to find

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resources and obtain information. One important point of reference

within the visual world is that of the Visual Resources Association

(VRA). Established in the 1980’s, the VRA was a collaboration of visual

resource curators who belonged to various different art associations

across the continent. The need for a general consensus in the world of

visual imagery was at the helm of the project. Although they were

rooted in the art historical perspective, they have embraced the image

needs of all disciplines and other formats of imagery (VRA, 2009).

In support of educating within the field, the VRA publishes a

scholarly journal and an online newsletter. Their “new and significant

role serving the public and contributing research to the broader field of

library and information science and educational technology” (VRA,

2007). “The organization as a whole has led the effort for public

understanding of issues on copyright and intellectual property rights,

protocols for dissemination of digital materials, standards of

cataloging, and the importance of providing a broad public access to

cultural information in the digital age” (VRA, 2007). The role of the

VRA is crucial to our First Amendment rights. They have taken the

issues at hand and found a way to try and educate the masses on

keeping those rights for our own advancement.

The VRA is currently working to become a foundation and

applying for IRS recognition as a non-profit. This would be a great step

toward universal education in the field.

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 Another tool in education for the free flow of information is a

company called Nolo, formerly known as Nolo Press out of Berkeley,

CA. Nolo is a publication that claims to be “Law for all”. In a 2004

version of one of their famous do it yourself guides to legality, Nolo

published a book on the Public Domain, concerning location and use of

non-copyrighted works (Fishman, 2004). IT is surprising the amount of

information that is within the Public Domain, and therefore accessible

to all without fear of penalty, or attachment of permission forms.

According to Fishman, the reason that we have copyright laws is

to, “encourage authors to create new works and thereby promote the

progress of human knowledge” (2004). I could not agree more, and

the knowledge that lies within the Nolo book is exactly what we need

to focus on to start that progression. This book outlines the history of

copyright and guides the users through their rights and freedoms given

to them with this protection. Nolo is also available 24 hours a day at

www.nolo.com, increasing even more our access to information.

As Manzo states, “there is an increasing need for accurate

information about the fair use and outside materials” (2008). With

resources such as the VRA and Nolo available to us on the internet, we

can begin to gain the knowledge that will help us process the rights

spelled out for us in the First Amendment as well as equip us with the

tools to move forward at a progressive pace.

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Conclusion

It is through many years of history that copyright has become

what it is today, a standard to base ourselves upon in hopes of forward

thinking. Since the invention of copyright law, technology has changed

substantially, leaving in the dust revisions and up to date standards of

protection. In the midst of trying to catch up with technology,

copyright regulations have begun to work against the original intent of

the practice, the free flow of ideas, each building upon the next.

The digital dilemma has also set us back in terms of freedoms, as

it has limited our access even further to copyrighted works with such

acts as the DCMA. What this means is that lawmakers are all but

appropriating users to attain these works illegally. Limiting our rights

will only make people gain access in ways that they are not supposed

to. When you tighten the grip on the free flow of information, it will not

stop people from trying, it will just push their focus elsewhere.

It is with current cases such as Fairey v The AP that we begin to

see what is truly at stake with these standards. Although to an

outsider, they see the artist as the one who is in the wrong, and they

see Mannie Garcia as the victim, with the Associated Press paying the

ultimate price. What is at stake if that were true is a little bit of our

freedoms. What the AP is suing for is the right to keep stringent

restrictions on artist and society alike. They are fighting for control of

their images as well as their assets and ultimately their bottom line.

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Companies such as this have the resources to keep cases such as this

in the appeals process for years on end.

What the AP doesn’t want you to think is that they might be

wrong. Even though in all honesty, Fairey should have asked for

permission to reference the photo. His fair use defense holds water

and stands up to the control that the AP is looking to forward. Fairey is

a pioneer to civil freedoms. Even though at first glance, it looks like he

is wrong, what his argument stands for in a continuum of freedom as

copyright laws originally intended. We can only hope that with the

Stanford University Fair Use Project behind his case, that he will make

some ground in copyright standards and set a president for fair use

within the legal framework.

With legal framework in hand, we can begin to regain some of

the liberties that have been confined due to recent attempts to “catch

up” with technology by lawmakers. It is in fact only through realizing

this whole process that we begin to see that more is a step in the

wrong direction when it comes to regulation of copyright. More here

just means more limitations and ultimately stifles the progress that we

have when we are allowed access to all information without regulation.

Fairey’s case has a chance to uphold our freedom of speech,

expression and press.

Aside from the case, which could take years to decide, it is

important that in the mean time, we are educating ourselves on the

23
practices at hand. Not only what the laws cover, but what they leave

out as well. It is not that we are looking for a way around them,

ethically, we owe it to ourselves to learn as much as we can about the

process. This way, we know exactly how we can progress and where

there is room for improvement. The free flow of ideas and information

scares a lot of people. If they were educated on these practices, it may

lessen their fears substantially.

My main hope in the current court battle of Fairey v The AP is

that Mannie Garcia is truly the copyright owner of the photo in

question. If this is the true, then the case will surely be moot as Garcia

is a big fan of Fairey’s piece and is happy to have been the source of

the image. In the words of Garcia himself, “I don’t condone people

taking things, just because they can, off the Internet, but in this case, I

think it’s a very unique situation (Kennedy, 2009). He added “If you

put the legal stuff away, I’m so proud of the photograph and that Fairey

did what he did artistically with it, and the effect that it has had”

(Kennedy, 2009).

We can all learn something from Mannie Garcia, he is more proud

of the use of his image, only wanting a lithograph of the image for his

wall, he doesn’t even care to fight about having his name mentioned in

the work.

According to Fairey, he posted the image up on his webpage in a

downloadable format. He claims that he has “no idea” how may

24
people have accessed the file for their own use. He also claims that he

charged for the first round of posters, approximately 950, to pay for

the rest, which were free (Booth, 2008). This doesn’t sound like

someone who is trying to rip anyone off, it sounds like someone who is

taking the ideas that exist and pushing them to the next level.

Bibliography

A Photo Editor. (2009, May 1). Retrieved April 2, 2009, from

http://www.aphotoeditor.com

Booth, W. (2008, May 18). Obama's On-the-Wall Endorsement.

Washington Post.
Retrieved April 2, 2009, from http://www.washingtonpost.com

Committee on Intellectual Property Rights in the Emerging Information

Infrastructure. (2008). Copyrights and Fair Use. In Intellectual
Property in
the Information Age (pp. 31-52). Washington, DC: The National
Academies Press.

Committee on Intellectual Property Rights in the Emerging Information

Infrastructure. (2008). The Law of Copyrights. In Intellectual
Property in the
Information Age (pp. 13-30). Washington, DC: The National
Academies Press.

CONFU. (1996). A proposal For Educational Fair Use: Guidelines For

Digital Images.
The Conference of Fair Use. Retrieved March 16, 2009, from

25
Academic
Search Premier database.

Dailey, N. (2005). Freedom of Expression: Overzealous Copyright Bozos

and Other
Economies of Creativity. Journal of High Technology Law.

Heller, J. S. (2004). The Librarian's Copyright Companion. Buffalo, NY:

William S.
Hein & Co., Inc..

Hirtle, P. B. (2003). Digital Preservation and Copyright. Stanford

University
Libraries.
http://fairuse.staford.edu/commentary_and_analysis/2003_11_hir
tle/

Howard, H. (2009, February 22). Comings & Goings: A Solo Show for
Shepard Fairey.
New York Times, p. TR 2. Retrieved April 2, 2009, from proQuest
database.

Fishman, S. (2004). The Public Domain: How to Find & Use Copyright
Free Writings,
Music, Art & More. Berkeley, CA: Nolo.

Jennings, C. A. (2002). Report for Congress: Fair Use on the Internet.

Congressional
Research Service, 1-12.

Karp, B. (2009). Artist's 'HOPE' for Fair Use. Daily Record BlogSpot.
Retrieved
March 14, 2009, from
http://blogs.dailyrecord.com/photojournalist/2009
/02/09/artist-hope-for-fair-use/

Kennedy, R. (2009, February 10). Artist Sues The A.P. Over Obama
Image. The New
York Times, p. C 1. Retrieved March 18, 2009, from proQuest
database.

Kirsch, E., & Klett, A. (2009). US and European Courts Split Over Fair
Use. Managing
Intellectual Property, 186, 3-3. Retrieved March 18, 2009, from
Academic
Search Premier database.

26
Lin, C. A., & Atkin, D. J. (Eds.). (2007). Communication Technology and
Social
Change: Theory and Implications. Mahwah, NJ: Lawrence
Earlbaum
Associates, Publishers.

Manzo, K. K. (2008). Fair-Use Help For Internet On Its Way. Education

Week, 28,12.
Retrieved April 8, 2009, from Academic Search Premier database.

MTV News. (2009, May 1). Retrieved April 3, 2009, from

http://www.mtvnews.com

Nimmer, D. (2003). COPYRIGHT: Sacred Text, Technology and the

DMCA. Frederick,
MD: Aspen Publishers.

Sender, K., & Decherney, P. (2007). Defending Fair Use in the Age of
the Digital
Millennium Copyright Act. International Journal of
Communication, 1, 136-142.

Snow, M. (1996). Digital Images and Fair Use Web Sites. Architecture
Slide Library.
Retrieved March 20, 2009, from Academic Search Premier
database.

Stanford Report. (2009, May 2). Retrieved March 22, 2009, from
http://news.stanford.edu/news/2009/february18/shepard-fairey-
obama-
poster-021809.html

Stelter, B. (2008, December 22). Time Cover Sure Looks a Lot Like
Campaign Image.
New York Times, p. B 4. Retrieved April 3, 2009, from proQuest
database.

The Associated Press. (2009, February 10). From HOPE to BITTER: Artist
Shepard
Fairey Sues AP in Barack Obama Image Dispute. New York Daily
News.
Retrieved April 2, 2009, from http://www.nydailynews.com

U.S. Copyright Office. (2009, April 21). Retrieved March 18, 2009, from
http://www.copyright.gov/help/faq/faq-fairuse.htm

27
Visual Resources Association. (2009, April). Retrieved April 10, 2009,
from
http://www.vraweb.org

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