Monday, November 16, 2015

Derivative-Work Liability - Copyright Infringement?


Our colleagues over at Photo District News ran an insightful piece "Found: The Photo That Shepard Fairey Use For His Obama Poster, 1/15/09) about how a photograph by Reuters staff photographer Jim Young was alledgedly used to create the derivative work, as noted below:

The image above is a well studied look, by Mike Cramer, dissecting the image with before and after (and inbetween) details, and the Philadephia News blog here dissects how this came to be.

The question is though, did Fairey seek permission? Did he need to?

(Continued after the Jump)


So, for the first question - When asked by Photo Business News if Fairey had licensed the right to produce a derivative work from the Reuters image, Reuters North American Director of Photography Gary Hershorn said "The image that certainly has become iconic did so without us knowing he used a Reuters photograph as the basis for the artwork. We learned that yesterday like everyone else."

That sounds like a problem for Fairey.

Reuters' blog writes about this - Iconic Obama poster based on Reuters photo, but doesn't address the legality of the use.

So, does copyright protection extend to this?

to wit:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
Wikipedia here has some good insights into this issue. Fairey says he based it on a Flickr photo, but, to date, he hasn't identified which one. Is that a cover for a willfully deceptive statement because he knew he based it on a Reuters image? Or, was this an "innocent infringement" because someone took the Reuters-owned image, stripped the metadata/credit line, and posted it to Flickr as their own? Herein lies one of the many challenges that Orphan Works will bring about, and, frankly, one that opponents of an expansive Orphan Works bill should be using for such an iconic image. Or, with a democratic Congress, maybe not.

Which brings me to my next question - what will Reuters do? It is Reuters' prerogative to litigate, reach a settlement, or do nothing. I am of the opinion that they will do nothing, and that if they did something, Fairey is judgement proof, so why do it? Because it's the right thing? To set a precedent? To defend their rights? It is Reuters' sole and exclusive right to choose to pursue this, or to decide not to - period. Perhaps the solution is that all future uses of the work must carry a credit "© 2007 Reuters & David Fairey"? I think that that alone would be a fair and reasonable resolution to this matter, but, it does fit the "will work for photo credit" issue that has its' own set of problems. In the end, there's no easy answer.

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