When “Hope” Becomes “Nope” – Copyright Infringement

Despite its appearance, this is not a political article, although with enough prompting, I would be glad to write one. ;) In a bizarre twist of fate, Shepard Fairey, the creator of the iconic “Hope” poster of the then-Senator Obama, was sentenced to 2 years of probation for copyright infringement and tampering with evidence, required to provide 300 hours of community service, and fined $25,000. As part of the civil case settled last year, Fairey was also required to pay the AP news service $1.6 million and 50% of future “Hope” poster profits. During the proceedings, investigators discovered that Fairey had grossly under-represented his profits on sales of “Hope” related items. It seems that “Hope” was based on a completely false premise – that Fairey had NOT infringed upon the rights of others. Another reminder that some things are not what they appear to be…

AP believed that Fairey had used a photo, taken by an AP photographer, Mannie Garcia, in 2006, as the foundation for the famous “Hope” poster. AP sued Fairey for copyright infringement. And with an apparent sense of righteous indignation, Fairey countersued. Unfortunately for Fairey, the ensuing investigation showed that he had lied regarding which image he relied on to create the “Hope” poster, and destroyed evidence related to the case. Fairey admitted his mistakes in court and issued a statement on his website today.

Hope

Fairey became an overnight success and earned over $1 million from “Hope” poster sales. Fairey’s newfound fame undoubtedly helped him land other lucrative contracts as well. The “Hope” poster was the most iconic symbol of the 2008 Presidential campaign, and perhaps the single most popular political icon of all time. Some even credit Fairey’s “Hope” poster with helping Obama win the election by transforming him into a cultural icon for American’s youth, attracting this elusive constituency to polling booths in record numbers, and increasing campaign donations – quite a lofty set of accolades for an artist, or anyone else for that matter. Fairey’s Obama icon spawned a series of “Hope” styled images of other celebrities, and websites such as “obamiconme,” which enabled anyone to upload a photo and easily create their own “Hope” like image.This issue would likely never have seen the light of day had Fairey simply acknowledged the source of his image and was reasonable in sharing his profits with AP – rather ironic considering some of the campaign’s messages.

A few months ago, I wrote an article outlining how I, and many others, believe Pinterest has run afoul of the Digital Millennium Copyright Act, by enabling people to store others’ full size photos on Pinterest’s servers and distribute those images without the permission of the owners. Some argued that such policies fell under the guidelines of “fair use.” I believe that the preponderance of digital images available on the internet, and the internet’s paradigm of “free,” heavily influences (often incorrectly) many people’s thoughts regarding intellectual property and what actions they can and cannot perform relative to the photographs of others. There were some very “lively” debates on this and many other forums regarding the topic of copyright issues, and they are far from over. Fairey’s commentary gives us some insights into how he and many others view these matters.

As the Fairey/AP case shows, we are not free to do what we wish with others’ photos. There are laws that cover these issues and courts that will enforce them. The money associated with this case was likely the least of AP’s concerns. Making sure that AP sent a clear, unmistakable message to others that might think to misuse its photos or other content in the future? Priceless… I suspect we have not seen the last of such lawsuits. And just in case you are wondering, my use of this image does indeed fall under the guidelines of “fair use!” ;)

Comments

  1. September 8, 2012 at 1:16 am

    Hi Bob,
    Thanks for continuing to be an advocate for photographers’ rights to their images captured digitally or through film. Few people realize the time that goes into a great photograph. People often ask me, “How did you get that great photograph?” Often my response goes something like this, “Well, I spent an hour standing on that beach taking photos waiting for the light to be just right.”, or “I came back to this location over and over again to get the lighting/setting/colors perfect. That’s just the taking of the photo, then there is the hours going through your captured images and making them exactly how you want the image to look in post-processing.
    In this age of the internet and instant access it is easy to forget the work that goes into creating a work of art.
    Thanks again, Jason

  2. September 8, 2012 at 2:58 am

    Good points in the article. I’ve been a “victim” of copyright theft, nothing unusual in SE-Asia. Check this out: http://goo.gl/M9eT2 They not only stole my photos from the site of the company I work for, they splattered the photo with their own watermark. You can still see the originals though – I wasn’t even angry when I saw it, it’s just ridiculous.

    That said, I’m a big fan of Fairey’s work, ever since I saw “Exit Through the Gift Shop” – recommended for all aspiring artists – it’s the best documentary I’ve seen in years ;) I’m not saying what he did was right, but I do see his point of view he expresses in his commentary. Fair use is such a grey area, and over the years, we have seen a significant restriction in our rights in that area. Trying to hide evidence and lying was wrong, he admits to that, but I do agree with him that he has a strong fair use claim here. That head shot would have been only one in hundreds, probably forgotten years ago, were it not for Fairey’s own re-interpretation of it. He shouldn’t have lied, he should have given credit where credit is due, but personally, I consider the Hope campaign original enough to stand on its own, as something new.

    • September 8, 2012 at 7:34 am

      Csaba,
      Indeed I like Fairey’s style of work quite a bit. I disagree with him on practically everything he blathers on about, but his artwork is very catchy and interesting. Unfortunately, there are far too many ironies associated with this case, and he did nothing but set the notion of “fair use” back a few hundred years.
      And as I point out below, Fairey’s seems to have some serious double standards when others utilize his images under the concept of “fair use.” He sues them…
      Bob

      • September 8, 2012 at 11:29 am

        That puts things into perspective – I didn’t know he was so sue-happy when it comes to his own images. I was willing to give him a pass on this, his comment seemed sincere enough, but I don’t like people with double standards.

        Regardless of what we think of him, you brought up very important issues in your article. Thanks for sharing your thoughts, it’s always a pleasure to read articles here.
        Csaba

      • September 10, 2012 at 8:36 am

        He has also been sued by other photographers before and since. Moreover, he has licensed photos for his work well before the Hope poster, so he did in fact know better. He is a master manipulator of the media and will do whatever it takes to self-promote.

        Frustrating that so many believe in and support him, including excusing his actions, when there are so many other (outstanding) artists who don’t lie, cheat, or steal.

  3. 3
    ) Randall
    September 8, 2012 at 4:16 am

    Bob,

    You may have intended for this article to be politically neutral but It doesn’t come across that way. I personally find your defacing of this image offensive. I feel that it shows lack of respect for the image, the artist, the office of president, and the readers of mansurovs.com. It may have been a better idea just show the original image or perhaps write the article without using the image. That is just my opinion…

    – Randall

    • September 8, 2012 at 7:30 am

      Randall,

      Surely I must have offended someone else, as I can’t imagine that the list is complete! It is a rare day when my list of “offendees” is not much longer. Why not add baby seals and small children to the list? ;)

      It would seem that the “lack of respect” and offensive behavior was on Fairey’s part, for using the image from the AP and ying about , attempting to cover up his tracks, lying about the profits from the image, and seeking to deny AP a share of his “good fortune.” His righteous indignation at AP and countersuing the firm likely and acting like a “victim” didn’t do much for his credibility either, especially considering the damning circumstances. It would also be interesting to note what the Obama campaign’s use of this image was after they were made aware that AP had brought a suit against Fairey.

      Using Fairey’s mindset, I could argue that I my putting “Nope” on his “Hope” poster was a “Transformational” effort that turned it into something new and creative – a profound social statement captured with a single graphic that depicts the decision of a court on a landmark case and the profound irony associated with it – and therefore covered under the fair use clause.

      Another humorous aspect of this case that I didn’t mention is that Fairey has not been shy about aggressively suing others that parodied his work, calling them, “parasites.” I guess suing others is ok when they steal from you. When you steal from them, it seems to be a clear-cut case of “fair use.” Sure…

      I am sure the readers of Mansurovs are intelligent enough to understand the legal and ethical issues associated with this case and come to their own decision regarding the law, the crime, and the associated punishment.

      I like Fairey’s style of work quite a bit, even if I probably disagree with every one of his political opinions. If you want to see how firmly Fairey believes in fair use however, watch me steal one of his posters, modify it in some way, and collect a cool $1 million in profits after it becomes wildly popular. How long do you think it will be before he sues me? :)

      Bob

      • 8
        ) UncleDusty
        September 8, 2012 at 9:33 am

        Randall,
        Heaven help you if you ever browse through BV’s photostream. My guess is that he single-handedly formed the Tea Party just after posing for a photo with his arm around a life-sized Obama cardboard cutout, while wearing a “YES WE CAN” shirt, with a mannequin wearing the “Hope” t-shirt in the background; all in front of a place they call “The Obama Shop.” If we don’t put a stop to this propaganda, every photographer reading this site will end up voting for Romney.

        All jokes aside, while in school I always appreciated it, and tended to listen more when professors remained politically neutral on subjects. I think Bob has done a great job of that on this topic as you seem to be just as puzzled about his political views as I.

        Best Wishes,
        UncleDusty

      • 9
        ) Randall
        September 8, 2012 at 9:57 am

        Bob,

        All I am saying is you could use a little more tact. Your website is read by all strata of society. Im sure I am not the only person in the world that would find that image offensive. And yes as soon as any artist proves to be a deadbeat I think their work should become public domain free to be mocked by others. In fact I am printing some t shirts to sell right now in my basement using this same image but Obama is made to look like the joker. Completely original of course…

        • September 8, 2012 at 10:40 am

          Randall,
          Unfortunately, we live in a society today where many are “offended” by the fact that some people actually disagree with their opinions. I have little sympathy for such notions. People are indeed entitled to their opinions – whether I, you, or anyone else agrees with them.
          “Nope” was the judgment of both the civil and criminal cases associated with Fairey’s theft of Garcia’s image. If I recall correctly, Fairey was also “offended” that AP thought to actually sue him for what turned out to be a true case of theft.
          What I find offensive is that Fairey portrayed himself in such a glowing light, lied about the entire affair, and tried to shaft AP. That is not only offensive, but illegal as well…
          Bob

          • September 9, 2012 at 3:43 am

            Amen, Bob. I have to say I completely agree with you on this. True freedom is being able to express any view and then inviting debate or reproach -but NOT reprisal, as so often seems to be the case these days. It never used to be this bad. People could just speak their mind and air their views without being held hostage to the present-day terrorism on our language that is political correctness. Nowadays, unless you agree with someone else’s view, they’ll try and beat you into submission until you do. Often enough, the offence that people take says something (if not more) about them than it does about the alleged offender. :)

    • 25
      ) carl
      September 17, 2012 at 11:28 am

      +5

  4. 4
    ) David
    September 8, 2012 at 6:51 am

    @ Randall,

    This has nothing to do with politics unless you feel the POTUS supports copy right infringement. This was a well written review of the case; please stop looking for reasons to be offended.

    • September 8, 2012 at 7:17 am

      @David,
      Well put….

      @Randall,
      His “fair use” was a commercial endeavor, designed to make money as well as supporting a presidential candidate he favors.
      I don’t think the fair use laws were ever intended to allow someone to appropriate another’s copyrighted, artistic property, as their own, with the intent to make a commercial product.
      Do you give permission for anyone to just take your images, without your consent and with out attribution and do with them as they please?
      If you’re in this business to make a living, I expect the answer is a resounding NO…

  5. 12
    ) J. C.
    September 8, 2012 at 1:00 pm

    It is a touchy subject , but I think it was handled well. If someone for example would had ventured on to this page and not read the article more than likely they would had thought this was an anti-Obama piece. Bob doesn’t get political on this, his writing is about an important piece of contemporary art that although inspirational and very influential is now marred by the greedy and deceitful endeavours of its creator.

  6. 13
    ) EnPassant
    September 9, 2012 at 3:32 am

    Oh my… Copyright law and the large army of lawyers in USA… Not that it surprises me in a country where a photographer (David LaChapelle) can claim compensation for a music video (Rihanna – S&M) inspired by a series of his photos. And England is not far behind were the cliché red Londonbus in a B/W photo of Big Ben now it seems is under copyright of one company, at least for selling tea: http://foglerrubinoff.com/IP-Current-Newsletters/A-Big-Red-Bus-Copyright.html

    All these claims of infringment in intellectual property are really going too far. I have several times stumbled on cases where photographers claimed to be copied just because someone else later took a similar photo of the same motif from almost exactly the same position. Even when the look of the photos were completely different with different light.

    What this in the end will lead to is that everything made and owned by man will be copyrighted. People will have copyright of not only their own image but also photos of their house, car, boat and pets! Photos from urban areas will be impossible to publish without a lot of permissions. Only things remaining to take pictures of will be wild nature and animals. That is until some companies claim they have researched the complete structure of plants and animals and therefore own their copyrights. By that time photography as of today will be dead.

    Photographers who claim a very extended copyright are therefore cutting off the very branch they are themselves sitting on. Straight use of a photo should of course be under copyright as of today. However when a photo is altered in such a way that it no longer look like a photo or the photo is only a small piece of a work of art we are getting closer to the situation with sampling in music.

    So the question is not if but how much Fairey infringed on the copyright of Garcias photo? Not devaluating the strength of Garcias original photo what really makes this poster is its strong graphics. I am sure there must excist such a lot of photos of Obama that there must be hundreds if not thousands of similar portraits that could be used instead. In fact if Fairey was such close to the Obamacamp he could propably have gotten a presspass to some speach and taken a lot of photos himself and had several good shots to choose from when making his poster. Because of this I personally don’t think the photographers contribution to the poster is such great, maybe 10%.

    Not knowing all details I assume Fairey downloaded the photo into his computer and used it to make his poster inside the computer as well. But what if he had done it the oldfashioned analog way using the photo as a model? He could have used different techniques like drawing and painting or even cutting out pieces of colored paper to produce the poster looking more or less exactly the same. Would that also be a copyright infringement?

    While thinking about that I will remind that many famous artists copied or was inspired by photos. Here is one exemple by Salvador Dali, The Butterfly Race: http://www.ogallerie.com/auctions/2007-08/080712.jpg
    The original photo of the horse Une de Mai was taken by the photographer Einar Andersson, who revenged by painting Dali’s butterflies on his original photography!

    We also have the case of collages that often uses a lot of small pieces of other peoples creations of various kind to create a new piece of art. How to judge them? And does it matter if they are made inside the computer or by hand?

    While the position in USA seem to be there is always a copyright infringement if only the smallest piece of someone elses work is being used without permisson, even style, in other parts of the West European world it is (still I might add…) not considered a break of copyright if the new piece of art in a considerable way have changed the original.

    Fact is too much copyright is just a hindrance for both creativity and development.

    And to avoid misunderstanding I am not in any way defending Fairey and his actions. I think he acted quite stupidly first stealing a photo from a wellknown photographer backed by one of the biggest news bureaus and all his other actions when he instead could propably have bought the rights for a usable photo very cheap or even got it for free from some Obama-supporter. But as usual the astronomical damage sentence is from a non-USA perspective completely not understandable. And how can sombody get probation for what in other countries would be a civil case? I can only shake my head…

    Sorry for not singing the gospel like others. I am beleiving one should look on things from different perspectives and not only the own one.

    • September 9, 2012 at 9:17 am

      EnPassant,

      No need to apologize – honest discussions that cover the range of opinions and perspectives are always welcome. Your comments are well-written and you raise a number of excellent points.

      “Too far?” Perhaps in some cases. Probably not enough in others. I will agree that there are indeed cases where copyright laws are used in some absurd ways. Some of the “look and feel” arguments by Apple and others border on asinine, as if an “ok” button is a subject for a patent. At least once a month, you might hear me go on a tirade against such nonsense. Here’s one case that I found completely bizarre and we probably agree on – an artist merely taking a photo from the same location and filtering out all the colors apart from red in an English bus: http://www.petapixel.com/2012/01/25/create-a-similarly-composed-photo-in-the-uk-risk-copyright-infringement/

      And yet copyright laws can be changed with enough prodding and proactive efforts by concerned citizens. We continue to see this dynamic played out across a variety of subject matters. It is difficult to find the “perfect balance” associated with copyright laws, since much of one’s perspective depends on where one stands. Photographers and news agencies are likely high-fiving each other regarding the Fairey/AP case. Painters and other such artists are probably lighting up the forums with expletives and cries of “foul.” Over time, one can only hope that “rational” minds prevail in such debates and the laws are modified to reflect standards that are reasonable and just, and cover the realities of changing technologies. If I had my choice (and I do!), I would rather live in a nation where the copyright/intellectual property laws were a bit stricter than one in which they were lax. Property rights are fundamental to a free nation, even if they don’t always yield “perfect” results.

      Fairey did indeed have options such as you suggested. For all we know, had Fairey been upfront with AP, it might have even allowed him to create his “Hope” poster with no strings attached (e.g. no associated payments). But we will never know since he chose another course, one that undercut his integrity and the many arguments associated with “fair use” that he championed. Personally, I find the appeals of some to use the property of others a bit hollow-sounding. If people are so creative, why don’t they simply start with a foundation of work that THEY developed, rather than using something from someone else? And yes, I understand the notion of artists “making statements on current culture,” but I find most of them to be more of an effort on their part to make an easy buck, rather than actually saying anything meaningful regarding the underlying culture at the heart of their work. My wife and I toured Andy Warhol’s (who was a Pittsburgh native) museum. I really tried, but I had a hard time understanding just what message I was supposed to interpret from Warhol’s iconic Campbell Soup and Elvis paintings. The only interpretation that clearly struck me was, “Andy was laughing all the way to the bank!” :) And while I do appreciate a variety of artwork, I have always believed that the “modern art” category is filled with people whose egos are out of sync with their abilities and that calling much is labeled as “art” is pretty generous, if not insulting to some extremely talented artists, such as Johannes Vermeer. Vermeer’s work always amazed me in that it accurately depicts extreme subtleties of light in tones and colors. ;) http://www.essentialvermeer.com/index.html

      The Fairey/AP case had me wondering about Warhol and what, if any, attribution, compensation, profit-sharing, etc. he provided to the some of the photographers whose work he used as the foundation of some of his paintings. I haven’t found anything yet, but will continue to do some digging. I may simply contact the Warhol Museum and ask some of the employees.

      However, I do find Fairey’s work very interesting and eye-catching. In some ways, it reminds me of the popular propaganda posters from the 1940s with an Orwellian “1984” look and feel. Now if he was only as creative and “fair-minded” regarding acknowledging the sources of his work… :)

      I don’t fault AP or the courts in this matter. As I suggested, Fairey could have avoided the entire melodrama and resulting fines, probation, etc. by simply asking permission of AP and being “fair” (hmm… seems to have been a huge motto of the previous and current Presidential campaign as I recall) about sharing in the benefits he reaped from using Garcia’s image.

      While we tend to focus our attention on the high profile cases such as Fairey/AP and Apple user interface suits, the sad truth is the majority of the world governments don’t respect or protect copyright and intellectual property rights. China in particular, is notorious for stealing the intellectual property created by companies in just about every other nation. If you are an entrepreneur toiling away in your basement on a new technology and trying to bring the associate product to market, who do you complain to when some Chinese entity steals your patented design? Probably no one. With a day job, and lacking an army of corporate lawyers, your ability to pursue any recourse is slim to none.

      With respect to the civil penalties, Fairey was simply required to share some of his historical and future profits with AP. Shame on him for not having the decency to at least ask AP for permission upfront and then lying about it. I suspect Fairey’s deceptive behavior and being richly rewarded in the marketplace based on his use of AP’s photo played a huge part in the civil award.

      Regarding Fairey’s probation and other criminal penalties, it is rather simple – we have laws regarding what happens when people lie under oath and tamper with evidence. We don’t take such issues lightly, since they are a fundamental part of our justice system. Fairey willingly and knowingly violated them. He is fortunate that he got off so lightly, all things considered. Making yourself a martyr and paragon of virtue standing up for the “rights of artists” around the globe, only to be found out to be a thief and having committed perjury is not the something we simply gloss over – regardless of the legal matter in question. Surely you wouldn’t suggest that people can simply attempt to blatantly deceive and insult the justice system and suffer no ramifications. Would you? What’s next? A United States Secretary of the Treasury that didn’t pay his taxes? :)

      Thanks for your thoughtful reply. I always enjoy feedback from people such as yourself that have obviously examined issues from a variety of different perspectives.

      Bob

  7. September 9, 2012 at 9:36 pm

    Interesting subject. I too, though, bristled at the political context on a site that I have grown to like so much…and that I view strictly as a photography blog. Many of us are just exhausted by the political rhetoric that is everywhere right now, and indeed pursue photography to escape it (among other things , of course). So without discounting any negative feedback about Bob’s post as “whiny” and “politically correct-obsessed” or “easily-offended”, I think it’s important to know why most of us log onto this site. It isn’t for a photo of the President, altered or not, or any frigging politician. It’s for photography. For me, though an interesting subject, this post was a miss.

  8. September 9, 2012 at 10:51 pm

    Mike,
    Thanks for the feedback. Photography is a multi-dimensional subject – artistic, technique, processing software, DSLR and lens technologies, accessory gear, strategy, travel, business, legal, etc. Unfortunately, the marketing, sales, business, and legal aspects of the trade are all too often overlooked, since most photographers enjoy the creative aspects of their trade far more. It is a sad truth that many excellent photographers struggle far more by the business and legal aspects of their trade than with the photography component.
    The Fairey/AP case just happened to highlight some of the copyright laws and how one person ran afoul of them in what turned out to be a high profile situation. It also reminds how important and influential photos and iconic images can be. Some credit the Marines raising the flag at Iwo Jima as playing a significant role in changing the morale during WWII. Someday, someone will get a Ph.D. studying the influence of Fairey’s “Hope” poster on the 2008 election. http://en.wikipedia.org/wiki/Raising_the_Flag_on_Iwo_Jima
    We attempt to “mix-up” the content a bit and touch on a variety of topics. Some are more popular than others, of course. I suspect that if someone had swiped one of your images and pocketed $1 million, however, you might have found this article a bit more interesting! ;)
    Bob

    • September 10, 2012 at 7:52 am

      Bob,
      Yeah, as I said, I do find the subject interesting, and even relevant on this blog. I guess I just depend on Mansurovs to take me away from all the intense politics of this current time, and it failed me. It doesn’t help that I support Obama and the photo , to me, even just to grab our attention , made me bristle. But the last think I’ll do on Mansurovs is debate politics so I hope we can just move on.
      Thanks,
      Mike

  9. September 10, 2012 at 3:00 pm

    Great post!

  10. 21
    ) AnonymousCoward
    September 10, 2012 at 9:39 pm

    I’m not an expert on fair use, so I’ll avoid that.

    I will say that it would have been difficult to “draw” (if that’s a better word) the poster of Obama without some sort of a reference photo. And unless I could get close enough to Obama to take my own photo, then I would have to depend on someone else’s photograph.

    He absolutely should have given credit to the AP when asked about the source photograph. He should not have lied about anything.

    As for this being a political post, I took the post to be non-political and solely about art and ownership. Until one of the comments said that the “nope” image was disrespectful to the president. Then I looked back at the image.
    I don’t think the author was trying to be political with the post, but the image certainly could be used political purposes (let’s just hope they share the profit with Bob if it ends up on a t-shirt).

    • September 11, 2012 at 5:09 am

      AC,
      Trust me, if I wanted to make any political statements, no one on this forum would have to think twice about whether they were/were not political – they would be very clear. There will always be those that don’t like the message and/or will feel “slighted” by anything other than a glowing reference to someone they admire.
      When my “Nope” poster makes it big, I will indeed cut AP in for a slice of the profits. Fairey? Not sure. Perhaps I will make the same legal argument as he did – that my work was “transformative” and created something totally “new and fresh” – or something like that… Wonder what he will think of it? :)
      Bob

  11. 23
    ) Mitchell
    September 11, 2012 at 12:27 pm

    I want to thank Bob for this article. The article is a tight discussion interesting origins of a now-iconic photograph. Bob is right to point out the outright theft and the subsequent the illegal conduct of Shepherd Fairey and the ramifications on all photographers.

    If one views everything through the lens of two political flavors, it’s easy to understand how some viewers would object to his revision of the text. But c’mon, the article is clearly about non-political, photgraphic issues. He has the right (and privilege) as the author to create content that contributes to the points he wishes to make.

    Great job, Bob.

  12. 24
    ) Mitchell
    September 11, 2012 at 12:27 pm

    I want to thank Bob for this article. The article is a tight discussion interesting origins of a now-iconic photograph. Bob is right to point out the outright theft and the subsequent the illegal conduct of Shepherd Fairey and the ramifications on all photographers.

    If one views everything through the lens of two political flavors, it’s easy to understand how some viewers would object to his revision of the text. But c’mon, the article is clearly about non-political, photgraphic issues. He has the right (and privilege) as the author to create content that contributes to the points he wishes to make.

    Again, great job Bob.

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