SHAY Elizabeth Shay Marina Blitshteyn University Writing 10 May 2011 Inspired By A Photograph The eyes are the

same. He stares far-off into the distance; pensive, his forehead slightly creased. The bold typeface across one of the images proclaims that he is the face of hope. For many during the 2008 United States Presidential election, the iconic poster, created by

Shepherd Fairey, of the then Presidential Candidate

Mannie Garcia/Associated Press

Obama, represented that hope. Few stopped to determine what had influenced the poster. Fewer even knew that

there was a photograph behind it. There was, however, and Shepard Fairey, later admitted that he had modeled the poster off of a photograph taken by Mannie Garcia, a photographer for the Associated Press at the time. Faireys admission that he had used the Associated Presss photograph without their permission began a firestorm of controversy. The Associated Press demanded that Fairey pay it some of the money he had earned from the sale of the posters. The organization felt that it was entitled to this payment based on the belief that Faireys poster violated copyright law. Fairey, who believed he was within his rights, hired a lawyer, and in a preemptive strike, filed a lawsuit against the Associated Press so that a federal judge could declare that he was not liable for copyright infringement (Kennedy). The ensuing court case communicated how serious the copyright issue has become in recent years. People have become unsure about what can be considered a plagiarism or violation of copyright law, and are more than ever

SHAY afraid to use and be influenced by the work of others. The term copyright is defined as a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work (ebooklaws.com). Robert Boynton, a prolific writer and director of New York Universitys

magazine journalism program, in The New York Times article The Tyranny of Copyright, states that Thomas Jefferson, who helped to shape much of the early copyright laws, favored providing just enough incentive to create, nothing more, and thereafter allowing ideas to flow freely as nature intended (Boynton 4). Today, however, copyright has become far more than just a motivating factor for artists and authors. It has become profit-driven, and this development has caused us to lose sight of its original purpose. The Fairey-Associated Press case is a perfect example of how far we have strayed from its original purpose. It is evident that the Associated Press took issue with Faireys use of the photograph, mainly because they were losing an opportunity to make money. The Associated press did not just want to settle with Fairey crediting them with the photograph, they were asking for monetary compensation (Kennedy). This greed for money is one of the main problems facing the copyright movement today. The situation is dire when artists are more concerned about compensation rather than just the sheer joy of creating their art forms. Boynton speaks about the permission culture which copyright law can create; that is a society in which the consumer will no longer own what they purchase, since they will be extremely restricted in what they do with it (Boynton, 3). If we move towards the place where the creator feels that they must be compensated in every possible way, then the permission culture will become even more of a reality today. This permission culture, will not only make consuming art difficult, but also inhibit innovation and creativity.

SHAY In her essay Creative Sampling: New Rules for New Media, Melinda White, a Ph.D. candidate in the Media, Art and Text program at the University Of Virginia, observes

that Creative work comes both from the moment, but, inevitably, also from our great pool of memory (White, 2). This pool of memory can only exist if artists are willing to allow their work to inspire others. In the permission culture, stringent restrictions are placed on the use of ones work and thus the pool of memory is compromised. Malcolm Gladwell, a bestselling author, highlighted, in Annals of Culture: Something Borrowed, an article he wrote about plagiarism after having someone plagiarize one of his articles, that the constitution only called for the right to be assigned to the authors for a limited time (Gladwell, 6). This is interesting since, in this present day, the right to a piece of work is usually assigned to the author for life and then after his or her death for an additional period of 70 years to his or her heirs. This change is only one of the restrictions in copyright law that seems to be profitmotivated. Corporations, artists and their heirs are allowed to have exclusive ownership of a work for a longer time, thus increasing the amount of income they can make. Unfortunately, as Boynton, points out, policies such as these have had the effect of drastically increasing the amount of material entering the public domain (Boynton, 4). This means that there is less in todays and no doubt in tomorrows pool of memory. The inventors, artists and authors of today will find themselves with not much works to influence them. White is indeed right; Intellectual property rights.... [can] hinder creativity (White, 3). If he had abided by all the existing intellectual property laws, Fairey would probably have never created the poster. One might argue that he could simply have sought permission from the owners of the photograph prior to using it. Before condemning Fairey, however, it is relevant to examine the processes artists must follow when using the work of another. In his book The Future of Ideas: The Fate of the Commons in a Connected World. Lawrence Lessig, a professor of law at Stanford University and a staunch proponent of the copy left

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movement, outlines some of these legal processes. For example, the director of a movie who would like to use a piece of recognizable artwork in one of his scenes must justify to a lawyer why the art should be used. Lessig laments that the lawyers have become the ones who decide, what can be in the story (Lessig). Besides the fact that the permission may be denied, often-large sums of money must be paid to the original artist. For a street artist, like Fairey, paying the Associated Press to use their photograph would not just be an inconvenience; it would probably be unaffordable. Even though the opportunity exists for one to use certain pieces of work, the option is often effectively limited to the wealthy. That is a fledgling author will probably not be able to put a print of a famous painting on the cover of his book, even if it adds to his work of art, simply because of the expense. On the other hand, a wealthy and established author will be able to afford this and more. Average people like Fairey, often cannot afford a lawyer to give them the appropriate legal advice, let alone the fees for using copyrighted work in their own. Thus, copyright laws are often elitist and sometimes limit certain creative endeavors to only large corporations and the wealthy. This is not what the copyright movement should be doing. If it was created to encourage creativity, why should it do this only for a few? The fact that copyright laws are said to inhibit creativity implies that it is a largely unoriginal process. White subscribes to this view and believes that all our creations are shaped by our experiences (White, 2). Naturally then, we must question if someone should be prosecuted for breaching copyright law, when someone whose creations may not be totally original influences his or her creations. If there is indeed no originality, then how can anyone legitimately be given a copyright? It is not fair to allow someone to copyright his or her unoriginal work, and then refuse others the opportunity to use it. Fairey, however, did not believe that he was liable for breeching copyright law at all. He was convinced that his creation of the poster, could be classified as a transformative use

SHAY of the photograph, and thus under fair use laws he would not need to seek permission from the owner of the photograph before using it (Kennedy). The term transformative has not as yet been clarified. In fact, many had hoped that the Fairey-Associated Press controversy, would help to define clearly what works could be considered to be transformative.

Currently, the best way one can understand what is meant by the term transformative is by answering the following questions; Has the material you have taken from the original work been transformed by adding new expression or meaning? And was value added to the original by creating new information, new aesthetics, new insights, and understandings? (fairuse.stanford.edu). These two questions can be analyzed and answered in the context of Faireys work. If the poster were to be considered transformative, it would perhaps be in the new meaning and use he created for the image. Faireys captions below the image of Obama add new meaning and dimension to the picture. Where before Obamas face was that of someone simply focusing, his face became contemplative and eyes that once stared at the speaker became those that stare into a hopeful future. While Garcias photograph was probably just to illustrate the occurrences at an event, Faireys work was a political statement; it had emotional appeal. Fairey transformed a regular photograph into a new work of true art. The ability of Fairey to accomplish this is perhaps testament to the power of creativity. Perhaps, however, one may say that the poster cannot be transformative because of the obvious similarity between it and the poster. This opinion, however, brings up other pertinent issues, namely whether or not a photograph should even be copyrighted. Lessig mentions that, in photographys infancy, courts had to decide if photographers should be obligated to get permission from any subject they were taking a picture of (Lessig). The decision was that photographers needed no such permission. As a result, today we have a vast body of photographers, both amateur and professional, who are able to take pictures

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freely and create art from whatever subject they wish. It is ironic, therefore, that the exact art form, which was threatened by copyright laws, now endorses them. The photograph is a capturing of a moment, a still-image of a particular pose. The events and people that grace the photographers images do not belong to him. What the photographer is given a copyright over then, is the framing of a context, pose or an event. However, anyone can capture the same events on camera. The moment that Mannie Garcia captured could have, in fact, been also taken by a myriad of other photographers. In fact, another photograph was originally falsely identified as the source of Faireys inspiration due to similarities between the two photographs (Kennedy). The features that made the poster identifiable to the picture were indeed the subject of the photo itself, Obama. It was not Mannie Garcia who told Obama to place his head in that position, or look up in the way he did. Garcia simply replicated what already existed. In other words, it can be proposed that Fairey did not do much differently than Garcia in replicating what already existed. A photographer such as Garcia is an artist in the same way Fairey is, and it is only fair to treat them the same. Interestingly, the Fairey-Associated Press controversy was accompanied by the Garcia-Associated Press contention. Mr. Garcia stated that it was he that owned the photograph, rather than the Associated Press, since his contract with the associated press did not stipulate that they would gain ownership of any photographs he took (Kennedy). Garcia made it clear that he was not a supporter of plagiarism but also said that he was so proud of the photograph and that Fairey did what he did artistically with it, and the effect its had (Kennedy). Perhaps Garcia, like Jonathan Lethem, a noted author who wrote The Ecstasy of Influence an essay that defends plagiarism, understands the beauty of second use (Lethem, 64). That is he can appreciate that things, including art forms such as photography, can be used in multiple times and ways both after its original use has passed or even when it is still relevant. It is crucial to remember, that Fairey could not have accomplished his iconic poster,

SHAY without the work of Garcia, and perhaps even more astounding, Garcias photograph would arguably not have achieved as much fame and respect as it did without the work of Fairey. Faireys work is not just his; it is a hybrid, collaboration between photographer and graphic artist. Most proponents of the copy left movement (that is those who take issue with the copyright movement, at least in its present form) would also argue that Garcias work does

not belong exclusively to him either. In the gift economy mentioned by Lethem, a creation does not belong to the artist, author or inventor alone. On the contrary, in the gift economy a word such as mine gives way to one such as our. In the gift economy, copyright does not restrict the use of others work or stem the flow of ideas indefinitely; it only enhances the flow of ideas. Jeffersons claim that when an individual releases their creation to the public, it forces itself into the possession of others (Jefferson) implies that creating ones work for the public is an inherently sharing experience. The numerous restrictions that todays copyright laws advocate for, often deny rather than promote this sharing. Perhaps what we all need to do is to evaluate seriously whether or not the copyright movement is going in the right direction, and if it is not determine how to rectify this. This is the goal that many of those in the copy left movement have tried to fulfill. Lethem even goes so far as to question if the term copyright should even be used. He proposes that copyright is not in any sense of the word a moral right. He believes that it is a governmentgranted monopoly on the use of creative results - thus he believes a more befitting term is usemonopoly (64). There are, however, alternatives to todays copyright laws. For example, the Creative Commons organization offers authors and artists the opportunity to make their work more accessible to the public. Instead of all rights reserved, the Creative Commons offers some rights reserved. An option such as the Creative Commons License allows an artist, author or inventor to feel that their work will be protected, while enhancing

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the sharing experience. Another option is for artists and authors to release their work into the public domain. Lawrence Lessig released one of his books using this method; in essence, he practiced what he advocates for. Perhaps if more people release their work in this way, there will be fewer controversies like the Fairey-Associated Press one and people will be more empowered to be influenced. Interestingly, the Fairey-Associated Press controversy concluded two years after it all began, when the Fairey and the Associated Press agreed to a secret financial settlement and to collaborate on future projects. While the settlement is less than ideal in this authors opinion, it is encouraging to see that there will be further collaboration between the two parties. More of this collaboration will be needed if creativity is to thrive in a world with increasingly restricting copyright laws. The copyright movement no doubt has its place. What is of concern is that we have lost sight of its original purpose. Copyright has often become an excuse for people to be selfish and money hungry. Authors and artists should realize that when they create works of art, poetry, literature and music, they create them to be shared with the world. This world can accommodate both Garcias photograph and Faireys poster. There is no need for one to be chosen over the other. Indeed, Faireys work can be seen as an improvement upon Garcias work, another step in the creative process. Most people, who think of ideas, have in some way been able to do this because of the lessons they learned from the work of others. It is hypocrisy to hold with tightened fists the art and ideas that would never exist without the foresight of those before to let go of their own.

Word Count: 2735

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Works Cited Boynton, Robert S. "The Tyranny of Copyright." The New York Times Magazine. 25 Jan. 2004. Massachusetts Institute of Technology. Web. 27 Mar. 2011. Boynton is examining the claims of the Copy Left, the movement against restrictive copyright laws, and how this controversy is impacting our society. He explains the Copy Lefts arguments emphasizing the importance of the public domain and the ways in which current copyright law is corrupted and inhibiting creativity. He also acknowledges the other perspective, that placing too much within the public domain removes incentive to create and cuts the creators short. Ultimately, he presents a few compromises the Copy Left has suggested, including their ultimate desire that copyright still exist but for a shorter period of time, thus still maintaining incentive to create while allowing creations to enter the public domain. The source is an article from the New York Times magazine, so it reaches a very broad audience, which is why the author gives so much background and makes things so clear. Gladwell, Malcom. "Annals of Culture: Something Borrowed." 22 Nov. 2004. The New Yorker. 28 Mar. 2011. Malcolm Gladwell discusses the idea of intellectual property in this article. He begins with using a Broadway play, Frozen, as an example. The playwright had written the play using information published by Gladwell as well as information from a magazine profile written by psychiatrist Dorothy Lewis without citing them as resources. The situation Gladwell calls attention to, is trying to understand when intellectual property is truly plagiarized or, more seriously, stolen. Essentially, although it is said that people are potentially

SHAY 10 committing a crime by plagiarizing it is sometimes difficult in creating a distinction between what is public knowledge; thus not owned by an individual, and what is someones original creation; thus intellectual property. The article uses legal cases within the music industry as other references. White, Melinda M. "Creative Sampling: New Rules for New Media." Multimodal @ Matx. 3 Dec. 2007. Web. 27 Mar. 2011. The essay by Melinda White, a Ph.D. candidate at the University of Virginia explores the issue of sampling. She outlines examples of works that have been sampled and analyzes if the author cited or gained permission for their use. White is not averse to crediting people for their work. In fact, she mentions one of her own works, in which she was permitted to sample under the terms of student use, but still felt ethically obligated to cite...[her] sources (White 11). She simply fears that Intellectual property rights [will]....hinder creativity (3). She also offers alternatives such as licensing with Creative Commons, an organization which offers artists the ability to reserve some rights rather than all rights. White has an interest in this topic, since she is a writer and has encountered the dilemma of sampling.

Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, Inc. 2001. 3-16. Web. In The Ecstasy of Influence, Lethem cites two sentences from Chapter 1 Free of Lawrence Lessigs The Future of Ideas, a book that delves deep into the issue of copyright. In Chapter 1, Lessig provides a concise, yet highly informative, overview of his opinion on the issue, which he develops through his motive of exploring the nature of

SHAY 11 copyright laws that he defines as the constraints on the practice of creativity (8). His central question is that of Why would we burden the creative process with rules that seem to have no connection to innovation and creativity (4)? Lessig introduces the topic by comparing copyright laws of the past to those of the present, noting the significant increase in strictness that is impinging on our freedom of creative reproduction. Writing freely and thoughtfully, Lessig supports his claims with a multitude of examples and quotations that work to illustrate the burden of creative control (4). Kennedy, Randy. "Artist Sues The A.P. Over Obama Image." The New York Times - Breaking News, World News & Multimedia. 20 Apr. 2011. Web. 20 Apr. 2011. Article outlining the lawsuit between Shepard Fairey and the Associated Press. Garcia, Mannie. 2006. Photograph. Ebooklaws. Web. 11 May 2011. http://www.ebooklaws.com/ Website giving brief background and definition of copyright laws. "Stanford Copyright & Fair Use - What Is Fair Use?" Stanford Copyright & Fair Use Center. Web.11 May 2011. A website giving a brief description of fair use encompasses.

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