The HOPE poster & copyright infringements

Story by Loftus Viljoen

This iconic poster, based on an Associated Press photo, was used for the 2008 bid for presidency

Over the last couple of months we had the opportunity to travel between cities and had a look at the so-called “graffiti” in Newtown Johannesburg and the efforts that the City of Johannesburg is making to revive decaying buildings in the inner-city.

What is “graffiti?"

Writing or drawings that are scribbled or spray painted illicitly on public places, walls or surfaces [or private property] are described as “graffiti” and has been in existence since ancient times in the Roman and Greek history. Graffiti may consist of words or sketches and may also express underlying social and political messages and a whole genre of artistic expression is based upon spray paint graffiti styles. In the 20^th and 21^st Centuries paint and mostly spray paint and marker pens have become the tools of the graffiti artists. In South Africa, as is the case in many countries all over the world, marking or painting property without the consent of the owner is regarded as defacement and vandalism and punishable as a crime. Sometimes graffiti is also used to mark a territory or to serve as an indicator of gang-related activities.  There are many different types and styles of graffiti and it is a rapidly developing art form but the artistic value of the “graffiti art” may be contested by many local authorities or it may be protected. 

The origin of the word “graffiti” denotes illegal activities, but when a local authority like the City of Johannesburg [for example], for the purposes of the promotion of tourism  of the inner city, commissions the painting of “graffiti” on walls or other surfaces in public places such art are not graffiti anymore but mural art. No person in his right mind would like to claim copyright on any graffiti which was brought on public or private property without permission or consent. As a general rule graffiti is a criminal act and therefore not protected by copyright.

In recent times we have seen some Facebook users stealing photos [or in some cases portions of photos] posted/published by other photographers and then pass it off as their own photos in their own albums. As a photographer you would like people to ask for permission to use your photo and give you recognition for using it and that you are compensated for the use. We have also seen that the subjects and composition in certain photos are copied and used in graffiti as well as in authorized wall posters.

Copyright exists on all photos and the proprietor or owner of the copyright is South Africa is defined by the Copyright Act of 1978, but normally [bearing in mind all the definitions in the Act and the exclusions] the photographer is the owner of the copyright. The Act also uses the definition “author” and says in respect of a photograph “means the person who is responsible for the composition of the photograph”. A published photo is copyright protected for 50 years.

Quite often photographers take stunning images of landscapes, sunsets,  wildlife, action, portraits etc…etc… and these photos are later then used as the basis or source for paintings, posters, artwork, graphic designs and so forth. Sometimes only portions of these photos are used for the subsequent “artwork”.

This brings us to the Obama “HOPE” poster: round about 2006/7 a photographer of the Associated Press, Mannie Garcia, took a couple of photos of Senator Obama [as he was then] with and without the actor George Clooney with the American flag as backdrop.

 Looking at the photo one can see that the composition gives us a very striking and powerful image of Obama’s face.

Emerging from the skateboarding scene a graphic designer and illustrator is Shepard Fairey  who used a sticker campaign called “OBEY” with his artwork “Andrè the Giant” which were fixed to stop signs and other places.  These images were appropriated from Weekly World News but his claim to fame was more recently when he used the AP photograph of then Senator Obama to create the HOPE poster. Although the Obama campaign officially disavowed any involvement in the creation or popularization of the poster, Fairey has commented in interviews that he was in communication with campaign officials during the period immediately following the poster's release when the original version was called “PROGRESS" where after it was changed to "HOPE," and that within weeks of its release, the campaign requested that he issue (and legally disseminate) a new version, keeping the powerful image of Obama's face but captioning it with the word "HOPE". The campaign openly embraced the revised poster along with two additional Fairey posters that featured the words "CHANGE" and "VOTE".  Fairey made his money by selling nearly a million of these stickers and posters during Obama’s campaign. Quite a number of these HOPE posters were also sold on E-Bay.

Photos by freelance photographer Mannie Garcia/Associated Press

In February 2008, Fairey received a letter of thanks from Obama for his contribution to the campaign. The letter stated:

“I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can change the status-quo. Your images have a profound effect on people, whether seen in a gallery or on a stop sign. I am privileged to be a part of your artwork and proud to have your support. I wish you continued success and creativity.– Barack Obama, February 22, 2008^”

Fairey had the reputation to use images of other people’s work without permission or compensation but when artists started to use his same techniques he threatened them with legal action as a violation of his trademark or “copyright”. 

Photographer Mannie Garcia recognised his composition of the Obama photo in the HOPE poster and believed he had the copyright and ownership thereof and  claimed compensation and credit for using his photo. However the photos were commissioned by Associated Press and they entered the fray. Fairey then sued AP for declaratory order that his use of the photo was “fair use” and he was entitled to use it. However, AP countersued saying the uncredited, uncompensated use of its picture both violated copyright laws and was a threat to journalism. Fairey fabricated evidence in support of his claims and were exposed.

AP and Fairey  then settled their copyright infringement claims against each other in 2011 and agreed that they would work together in projects using AP’s photos.

Fairey also agreed not to use another AP photograph in his work without obtaining a license, and the two sides agreed to share the profits of posters and merchandise bearing the 'HOPE' image.

A financial settlement also was reached, the terms of which were not disclosed, though Fairey said that he 'paid the AP an amount that I believe made it whole for the harm associated with my spoliation and fabrication of evidence.’

Fairey faces a 6 month jail term for not telling the truth in Court.

Recently there was a similar case in the UK regarding the specific backdrop of the London landscape with the London buses and using selective colouring as part of the photo where the UK courts found that the “composition” is copyrighted and thus the photo as such was copyright protected.

I foresee that more and more photographers will come to fore to protect their  photos against copyright infringements but, a word of warning, if you want to protect your copyright make sure that you have the ownership of it. A photographer should get “model releases” or “building releases” and/or the necessary permissions to take photos of certain paces and subjects and in many cases your photos will not be published unless you can provide those “releases”and, if you are a graphic designer using photos to do your designing from make sure that you have the written permission to use the photo or the composition or the person/s in that photo.  And, another word of warning, check the terms and conditions for uploading photos on Facebook or any social networks as you may be licensing Facebook’s users to publish and re-publish your photos despite marking your photo “copyright protected”. 

Facebook states:

·  Sharing Your Content and Information


You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and  application settings. In addition:

1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and  application settings:  you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
3. When you use an application, your content and information is shared with the application.  We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information.  (To learn more about Platform, read our Privacy Policy and Platform Page.)
4. When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).
    

Google for example has strict copyright protect policies and underwrites the protection of copyright and if you find an infringement of one or more of your photos you should notify them.

©2012.