If the AP does in fact own the copyright, Fairey's going to lose. It's that simple.

oleeb,

If Fairey was a poor photographer, and had taken the original photo and had it copyrighted in order to sell it for royalties, and A.P. had one of their artists make a poster using his photo, and the poster sold like hotcakes, and they didn't give Fairey a cent, and Fairey sued them, would you call Fairey "scummy" for doing that?

But you are right that A.P. has the stronger hand. Rogers v. Koons comes to mind, where the photographer won and the artist lost, even though the artist argued his "product" was a parody (which anyone who really knows Koons' work knows is true.) The court found it too similar. That Koons removed the copyright label before using the image was an important factor and hurt him, seen as knowledge of bad intent. (And anyone who knows Koons' work also knows he might have such intent--he's intent on making a sort of parody of such pop images, so the photographer might not give permission when he figured it wasn't exactly a totally laudatory use being requested.)

I do not think the public understands how the copyright laws infringe on free speech and education in this country.

I think it was in the eighties when the Congress, just as Disney was to lose copyright on some older movies, passed a horrendous law, giving the copyright laws extensions that our founding fathers would never have endorsed.

Our country needs a free flow of information. Alas, if one dislikes the suit by AP, what about someone else who appropriates the new take on the photo.

I am less concerned about this matter. The news service and the painter should reach some agreement unless their attorneys are idiots, which is not unheard of.

We should have free access to everyone who has written something less than thirty years old. It should be on the internet. Accessible to all.

"I do not think the public understands how the copyright laws infringe on free speech and education in this country."

1. I don't think those who oppose copyright laws -- such as you -- have read the Constitution, which such laws implement.

2. I doubt very much that those who oppose copyright laws, in behalf of "free flow of information," have themselves suffered copyright infringement, thus haven't a clue what it feels like.

3. I don't at all doubt that were such person's copyrights infringed, they would be squealing like stuck pigs.

In short: know what you're talking about on the issue, before you decide it's "cool" to take, and or give away for free, OTHER people's properties.

Sure, but I don't recall anywhere in the Constitution where it states that corporations are permitted to exist, much less to own property - real or intellectual. Scalia's snowjob in a landmark case regarding corporate personhood notwithstanding.
And since Walt has been in his grave for lo these FORTY-TWO YEARS, I think he's safely past risking starvation.
How Michael Eisner was ever entitled to a cut of the royalties from Walt's work I simply do not understand - he is not and never was an artist.

Personally, I believe that patents and copyrights should be the property of the human persons whose work resulted in them, and should not be transferable with the possible exception of heirs, and certainly not in perpetuity. I would like to see an end to the practice whereby actual inventors and people who develop patentable processes are governed by employment contracts stipulating that any and all patents shall be sold to the employer for a meager sum($1.00 in the case I'm familiar with).

Good grief it isn't as if he used the photo in a photomontage, he used it as a reference for an original illustration.

If AP wins this, commercial illustration will be impossible. Anyone can now say, "hey your drawing looks like a picture of an apple I took 20 years ago," even it it isn't. How many illustrations have there been of famous people using photos as references? Millions! Now will AP be going after the artist that does the pen and ink sketches of WSJs writers? Textbook illustrators that draw famous people from old news photos?

Hey, they should SUE EVERY ARTIST THAT EVER BASED AN ILLUSTRATION, PAINTING OR LITHOGRAPH ON A PHOTO. It's like suing writers for using a sentence fragment that was used in another book. "Hey, I used 'dark stormy night' first!!"

It's Bullshit.

My .02¢ less attroney fees.

Fairey is definitely in the wrong here.

He made a derivative work and not only distributed but sold it, without attribution to make matters worse (I was not actually aware it was not original art myself.) Whether he did so for personal profit is by and large irrelevant.

We can be of many minds about the current state of copyright enforcement, licensing, royalties, corporate holdings, right of modification, intellectual property, software patents and so on*, but I think it is unequivocally inexcusable to not attribute the original work/artist.

* As you might guess, I am not a big fan.

Is that really what he did? Just color it in? Or re-draw it somewhat (I have to say, the angles look slightly different to me. One of the big issues in this case is going to be the elements of the photograph that are, in fact, "original," and how the picture was taken and composed. That will be an interesting deposition, particularly because often with digital cameras several frames are shot over the space of a couple of seconds. The author is only protected insofar as his authorship.

The reason that the above matters is because fair use is a defense to infringement, which by definition is the copying of original expression. The less taken, the better the defense. And that's before getting to the transformative use issue. Given the way a lot of these cases have come out, I can really see both sides of this one. There will be no injunction (or there shouldn't be) because of the rather unique nature of the derivative work. Damages is a different story. It's a close case.

Not to burst your bubble, but there are two Koons cases. Koons won the second one on precisely the kind of argument that you're making--that street art has its own language of appropriation, which changes the message of the underlying work. He (or the much maligned-suits) learned their lessons, in other words.

This is an interesting situation and I'll be interested to see how it plays out.

I support, to a broad extent, copyright laws and the need to protect artist's original works, other intellectual properties, etc.; however, I see this situation as very different in that we're talking about a public official and I can't get this out of my mind--My understanding is that the original photo was taken while Obama, as an elected official, was conducting the people's business during an official proceeding. So who, in fact, does the image belong to?

If I had to settle on any one person, organization or collective body, it would be the citizens.

Going further and as a hypothetical, what if the photo was taken during an official proceeding where the exact same image/pose was also videotaped, either by another news agency or a government employee? Someone can correct me if I'm wrong, but I'm assuming the same image or an extremely similiar image could be obtained using a frame by frame isolation of video. Then, who would own it? But I digress, I'm probably being as clear as mud here...

In any case, post rec'd and I agree the AP's actions and the claim on the image is petty and I hope they lose.

A solid grounding in copyright law, beginning with knowing what the statutes actually say, is a prerequisite to intelligent discussion of the matter.

That includes adhearance to the statutory -- not the Internet -- definition of "fair use".

And NEVER trust those who believe "information should be free" for truthful statement of the ACTUAL law.

And NEVER let them near YOUR copyrights, unless you want them "freed" for the for-profit use by others, beginning with those who argue that (OTHERS' THAN TEHIR) information should be free.