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 20th
and 21st 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:
- 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.
- 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).
- 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.)
- 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).
- 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.