Now that the photographer of the image in the Obama poster has been found (here) fair-use debate can begin in earnest.
Photographer Mannie Garcia had this to say over on Tom Gralish’s Philadelphia Inquirer photographer blog:
“Of the iconic poster he said, ‘I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture. I thought, ‘that’s familiar.’ I would see it and say that’s cool, but it did keep sticking in my head.’ He was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.'”
“I talked with him again this morning, and he is still proud his photo is the basis of the painting that now hangs in the National Portrait Gallery, a part of the Smithsonian Institution, in Washington, DC – the first portrait of the new president to enter the national collection.”
I followed a post by Carolyn E. Wright of the photo attorney blog where she brings up “thin copyright- where there is not much original copyrightable expression in a particular work” (here) to a discussion on Madisonian.net (here) where a commenter (Bruce Boyden) has this to say:
“The third and most difficult question is whether the copyrightable elements in the photo have been infringed by the poster.”
“To figure out the answer to that, you have to do more than just hold the images side by side. That’s because there’s a lot about the photo that is not the creative work of the photographer and therefore not copyrightable — and copying that stuff is not infringement. E.g., Obama’s face. Drawing Obama’s face does not infringe on this photo.”
“Once you’ve figured out the creative bits that the photographer contributed to the photo, the next step is to figure out if *those bits* have been substantially copied by the poster. ”
and Carolyn had a comment earlier in the thread where she says:
“It’s a common excuse for copyright infringement – the photo wasn’t anything special and anyone could have shot it. That begs the question – then why didn’t they?”
The Art Law blog has more (here) including this tidbit:
“”This would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose… campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there’d be a strong argument for market harm”
which leads to this from Time magazine (here):
“I would think Fairey would not have much trouble proving that it was his pulsing three-color reinterpretation of the Obama photo that elevated it from press conference news photo to icon.”
and finally a bunch of law professors get in on the debate (here):
“changes in color and style have been held not fair use before, see Rogers v. Koons”
I am of course fascinated by the debate… you may not be.