Archive for May 2009

27 May, 2009 | Posted by: photosource

Are Your Copyrights Protected?

by Joel Hecker, Esq

A primary purpose of estate planning is to insure that assets and property are distributed as intended. Although laws vary from state to state, one general concept is universal: the more organized you are, the easier it is for your executor to marshal your assets and to make sure your wishes are honored in a timely fashion.

By the very nature of a professional photographer’s work and creative efforts, one of the most valuable assets is ownership of copyrights to his or her body of work. Although copyright is an “intellectual,” as opposed to a “physical”asset, for estate purposes, it is treated in the same way as any other asset.

Copyright is a bundle of “intellectual” property rights, which include the rights to reproduce, distribute, display, and perform the copyrighted work, and prepare derivative works based upon it. It does not include the original work which is a “physical” asset. Therefore, while you may identify your particular works as part of bequeaths in your Will, that does not necessarily include the rights under copyright to the works, which are separate assets.

Accordingly, for example, you may leave original prints, chromes or digital files to one person, and the right to make reproductions and commercially exploit the photos (copyright rights) to someone else. Moreover, the right to receive royalties on your work usually flows from copyright ownership and not from ownership of the original.

Take a moment to think about whether you know how many copyrights you own and which, if any, copyrights are registered with the Copyright Office in Washington D.C. If you cannot identify what your copyrights are, or the location of the original negatives, chromes and/or digital files from which reproductions can be made, think of the problems you will be causing your executor!


The simple answer is to get organized. This should encompass all relevant information, including a list of all your intellectual property, either by individual images, or category of work, or by job or assignment. Information about subject matter, date of creation, date of first publication, or registration information with the Copyright Office, all known uses of the images, all payments received, if it is subject to any licenses (including stock photo agreements), what royalties are due and when should be made available. The physical location of the work should also be accessible. Any appraisal or valuation that you have (or might want to obtain) would be very helpful.

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06 May, 2009 | Posted by: photosource

Obama Hope Poster

Is it Copyright Infringement?

By Joel Hecker, Esq.

A new case
in the United States District Court of New York, Shepard Fairey v. The Associated Press, may be the basis for an important “transformative” analysis of fair use. It concerns Fairey’s creation of an illustration of President Obama which was used in a series of posters, the most widely known of which is the “Hope Poster.”

Shepard Fairey is a 39-year-old artist who lives and works in Los Angeles. He copies part or all of existing photographs or artwork, a practice he calls “visual reference.” Photographers consider this “appropriation art” to be blatant copyright infringement.

AP, a not-for-profit membership cooperative corporation, is one of the largest news organizations in the world.

The Underlying Photo

One unusual aspect of the case is that the underlying photo used by Fairey is in dispute. Mannie Garcia, a professional photographer employed by AP, created a series of images at a 2006 event about Darfur held at the National Press Club. The actor George Clooney was sitting beside the then Senator Obama.
Fairey claims he used a cropped version of a photo of both Clooney and Obama. AP claims the underlying photo, also taken by Garcia, is only of Obama and, when overlayed onto Fairey’s illustration, shows the two are exactly the same.

The Posters

Fairey claims his illustration and posters were part of a series of iconic works he created to support the presidential candidacy of Obama.
The first one, Obama Progress, is identified by Fairey as an abstract graphic rendition of Obama gazing up and to the viewer’s right, colored in a palette of red, white and blue, with the word “Progress” in capital letters beneath the image of Obama. Fairey then created a second poster with his same illustration, which became known as Obama Hope since the word “Hope” replaced “Progress.” By the summer of 2008, Obama Hope had become, according to Fairey, a “ubiquitous symbol” of Obama’s candidacy and pervasive presence across America.

The third poster, entitled “Obama Hope Mural,” was created for an art exhibition held in Denver during the Democratic National Convention, in conjunction with Obama’s nomination for President. The fourth poster, Be The Change, has the Obama illustration flanked by images of the United States Capital Building and White House with a cheering crowd beneath the illustration.
Immediately following the election, Fairey created a fifth image, entitled Yes We Did with the Obama illustration in the upper center with additional visual elements. Finally, on January 17, 2009, a large-format, hand stenciled collage incorporating the Hope poster with other visual material, was unveiled at the Smithsonian Institute’s National Portrait Gallery in Washington, D.C.
Fairey’s Complaint
The lawsuit seeks a declaratory judgment that Fairey’s illustration of Obama and posters incorporating this illustration constitute fair use under the Copyright Act and do not infringe any AP copyright.
Fairey claims that he used the Garcia photo of Obama and Clooney solely as a visual reference, which transformed the literal depiction contained in the photo into a “stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph.”

Fairey further claims that th e original photo previously published depicted a factual occurrence, while his image was fictional and highly creative, that only a portion of the photo was used (with Clooney cropped out), and therefore the amount of the taking was reasonable.
Finally, Fairey claims use of the photo in the illustration imposed no significant or recognizable harm to the Garcia photo, or any market for, or derivative of, it. In fact, to the contrary, Fairey claims the posters have greatly enhanced the value of the photo.

AP’s Counterclaims

On March 11, 2009 AP filed its answer to the complaint, as well as counterclaims for direct and contributory copyright infringement. The gist of the counterclaims is that Fairey was fully aware that the Garcia photo used was copyrighted, and that Fairey copied all the distinctive and unequivocally recognizable elements of the photo in their entire detail (including the heart and essence of it), as well as its patriotic theme.
AP also alleges that Fairey’s profits on his illustrations already exceed $400,000, with a great deal more expected. AP further claims that Fairey has a prior history of wilful disregard for the property rights of others and cites numerous instances of his misappropriating works from other artists. These acts and the failure to give any attribution to the original creator, says AP, constitute a consistent pattern of copyright infringement by Fairey and proves Fairey was acting in “bad faith.”
AP compares these claims to Fairey’s highly sophisticated understanding of licensing and a highly protective copyright protection program of his copyright and trademarks, as well as his work. AP alleges specific examples to support this contention.
AP also contends that Fairey’s copyright registration certificates for his various Obama works constitute a fraud upon the Copyright Office, since he did not acknowledge that the illustrations are derived from the Garcia pre-existing work. Therefore, according to AP, these registrations should be cancelled.

This case has the potential for far reaching importance in interpreting the concept of fair use in copyright as it applies to appropriation art. At the moment, it is unclear how far an artist can go when using copyrighted work in the name of art without it being considered to be copyright infringement.

Most interested photographers believe that this direct taking of Garcia’s photo constitutes copyright infringement, and that this is not even a close call. In any event the case will be watched closely by the photography and artistic community because it may determine how far someone who is, or claims to be, an artist can use an existing copyrighted photograph as reference for new art.

© Joel L. Hecker, 2009

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com.