Copyrights & Orphan Works

There’s an absolutely fascinating blog entry over at Myartspace by Brian Sherwin.  Apparently someone tracked down the source photo that Shepard Fairey used for his Obama “Hope” poster.

 ©2009 Steve Simula

Michael Cramer went off in search of the original photo and found one by Reuters photographer Jim Young.  Looked like a pretty good match, and when informed about it Young didn’t seem to mind the usage and wasn’t going to do anything about it.  Then Michael Sherer reported in Time magazine that the actual source photo was from freelance photographer Mannie Garcia, who might feel differently about the whole thing as he intends to contact Shepard.

Read the original posting for all the details, including a good exploration of how the proposed Orphan Works Bill would effect similar cases.  If you’re not familiar with the Orphan Works Bill (which hasn’t passed yet) the nutshell version is that someone could find your artwork or photo on the web and us it for, say, a Camel cigarette ad.  They can say they made an “reasonably diligent” attempt to find you but couldn’t so the work is now considered “orphaned” and they could use it without paying you.  Not cool.  Many refer to this bill as “corporate theft” because right now when you create something it’s just automatically yours, but if the bill passes you would have to pay pricey copyright fees to register and protect every single image (painting, photo, sketch — even songs and videos) you create from being “orphaned.”  Learn more (prepare to be pissed off):  Corporate Theft – The Orphan Works Bill.

This copyright stuff is a hot topic for artists and photographers — many of us work together, or take our own photographs, or source stuff we find on Google, and many of us do all three.  A pretty big chunk of my career has been referencing famous Old Master paintings and wotnot, so this kind of thing is something I pay a lot of attention to.

UPDATE:  Mannie Garcia might be relaxed about the usage but apparently Associated Press isn’t — they’re suing Fairey.  (More here too.)  Plus, a brief but interesting discussion on “All Things Considered” on NPR, and a defense of Fairey on SuperTouch.

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One response to “Copyrights & Orphan Works

  1. We know that Shepard Fairey willfully infringed on the photograph. He has made clear in interviews that he found the image on Google. He has willfully admitted that he acknowledges that he infringed on the copyright of the photograph. We know that he created a stencil over an enlarged printed off copy of the photograph he found online based on interviews and articles about the poster. There is room for the photographer to take action. If the jury sided with the photographer the damages would either be actual damage plus the infringer’s profits or statutory damages of up to $150,000. Since the Obama campaign profited from the image the case could get nasty if it were to happen. It might be hard to prove that the Obama campaign willfully infringed on the photograph. On the other hand it is within reason to claim that they had to have known because of the media coverage about the poster and the statements Fairey made about the poster.

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