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Monday, March 16, 2009

Digital photography complicates issue of "fair use."


The Wall Street Journal - Technology makes it easy to lift parts of someone else's music, video or other digital creations, tweak it, and call the result one's own. This usually causes no harm, but the case of a photo-turned-poster of Barack Obama is a reminder that just because technology makes something possible doesn't make it right.

Until the digital age, the common view of copyright law was that it served overreaching corporations against creative little guys. Groucho Marx once generated publicity for the Marx Brothers film "A Night in Casablanca" by playing on this cynicism. Warner Bros. asked for the plot of the film, fearing it would spoof its Humphrey Bogart classic, "Casablanca." Groucho Marx responded with a letter threatening a counterclaim against Warner for using the word "Brothers.

Now disputes are as likely to be little guy versus little guy, with artists and photographers split over the Obama case. One side defends poster artist Shepard Fairey, while the other cries foul on behalf of freelance photographer Mannie Garcia, who took a striking photo in 2006 while on assignment for the Associated Press of then Sen. Barack Obama gazing off to one side. Mr. Fairey discovered the photo on Google and used it, without crediting the photographer, to create the "Hope" poster. With Mr. Fairey's permission, the Obama campaign widely used this image to support the candidate.

Earlier this year, New York gallery organizer James Danziger was planning a show featuring Obama campaign art, including the Fairey poster. He wondered whose photo had been used, but Mr. Fairey refused to say. Online searching found it to be Mr. Garcia's photo. When the AP learned the poster was based on its photo, it sought standard licensing terms from Mr. Fairey, who refused. Instead, Mr. Fairey sued the AP, which has counterclaimed.

It's not clear who wins as a matter of law. The concept of "fair use" is broad, but photographers argue that the lighting, angle and much of the art of the poster, which seems to have been digitally created, was in the photo. Mr. Garcia, a veteran war photographer, worked hard for the image. "I'm on my knees, I'm down low, and I'm just trying to make a nice, clean head shot," he told National Public Radio. "I'm looking and waiting. I'm waiting for him to turn his head a little bit. . . . Boom. I was there. I was ready."http://online.wsj.com/article/SB123716866712036921.html

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