The Obama poster goes to court

Comparison of obama photos to Fairey poster
Comparison of obama photos to Fairey poster

Maybe I’m weird, but I’m really excited about the prospect of high profile copyright/fair use litigation. As the New York Times reports, the Associated Press sued street artist Shepard Fairey over the Obama “Hope” poster, which was based on a shot by former A.P. freelance photographer Mannie Garcia.

A few weeks ago, I started the Wikipedia article on the poster. It ended up on the Main Page for “Did you know?” on inauguration day, and while it was there another editor, Dforest, pointed me to something very interesting: this Flickr photo by stevesimula (shown above). When I wrote the article, it was thought (and reported) that the lower shot (a Reuters photo by Jim Young) was the basis for Fairey’s poster. But stevesimula had convincingly demonstrated the true source, which apparently was known only to Fairey (and probably some of his crew), some of the Obama people, and whatever isolated netizens might have noticed. (I investigated some rumors that an art forum had found it months earlier, but couldn’t verify that.)

This was getting interesting, but beyond what was allowed on Wikipedia without violating the ban on Original Research. Long story short, I started a Wikinews article on the photo source, and a tip from Dforest and me (that the photo was from A.P., which we found with led photographer Tom Gralish to find a copy of the original that included metadata, identifying the photographer. If we’d just been a little smarter, we might have beaten Gralish to the punch and broken a story of national import.

Now A.P. has sued Fairey (who didn’t profit directly from Obama poster sales, but no doubt has seen a huge surge in interest in his other for-profit work) for violating its copyright. Fairey, assisted by a Stanford law proffesor among others, is suing back, seeking a declaratory judgment that the poster is fair use. To make it even better, Mannie Garcia claims he actually owns the copyright, because of the terms of his A.P. contract.

I’m a big supporter of fair use, but this is an interesting case of pushing the boundaries. The main reason I’m ambivalent is the way Fairey handled it… he originally appropriated the image with no attempt at crediting Garcia. Fairey has obviously benefitted tremendously (if not directly, in terms of profit) from the image, but has also dramatically increased the value of the original. His work is also essentially a political statement, something fair use is supposed to protect and allow. But the hybrid nature of Fairey’s commercial street art (controversial even within the street art scene) complicates things. Either you’re doing this essentially anti-authoritarian street art that is based on grafitti culture, or you’re running an art business. If it’s the former, go ahead and break the rules you disagree with or don’t care about, but don’t expect to be making the big bucks mass-producing and selling your designs. If it’s the latter, you should at least have the decency to credit other artists whose work you use for your own.

I’m really rooting for Garcia, here. From all the snippets I’ve read, he seems gracious and thoughtful. From the Times:

“I don’t condone people taking things, just because they can, off the Internet,” Mr. Garcia said. “But in this case I think it’s a very unique situation.”

He added, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”

But I’m also rooting for Fairey, or at least for the entrenchment of liberal fair use rights.

Can you copyright a bonsai?

Besides Wikipedia, my main hobbies are bonsai and photography. Sometimes I combine all three, taking pictures of bonsai and uploading them to Wikimedia Commons. So the question I have is, does styling a bonsai create a copyright? Can I take a photo of someone’s tree and do what I want with it (e.g., license it freely on Commons), or do I need the owner’s permission?

At first blush, the answer would seem to be yes, bonsai is eligible for copyright. It is a form of visual art, often compared to sculpture. A good bonsai is distinctive, demonstrating the creative vision of the artist who made it.

On the other hand, it is a living thing, and a core principle of bonsai is that it is never finished and always subject to change; according the U.S. Copyright Office, “Copyright protection subsists from the time the work is created in fixed form.” What is meant by fixed form? A bonsai’s form is never truly fixed (in the same way that one’s face is never fixed but develops over time), but (like a face) a well-styled bonsai may be recognizable in the same general form over the course of decades, or even centuries. That’s more than can be said of many traditional works of art, which for some media may deteriorate beyond recognition in just 10 or 20 years. But bonsai typically evolved to a roughly “final” form over the course of many years. When, during this process, is a copyright created? If photograph a bonsai one year and it’s very different the next, I essentially took a snapshot of something that was not at the time in a fixed form. But if I take a picture one year and the bonsai is basically the same the next, does that mean it was copyrighted? Does keeping a bonsai as it lives and grows generate a continual series of copyrights, such that the centuries-old trees that get handed down from generation to generation can never go out of copyright as long as they are alive?

For my part, I’ve assumed that bonsai are not eligible for copyright. Mainly, I do this because there is no tradition within the bonsai community of claiming copyright for bonsai, only for particularly (fixed) pictures of them. If anyone has a more definitive answer, or informed thoughts on the matter, please let me know.

Libraries and copyfraud

For the last week, I’ve been exchanging emails with curators at the Huntington Library about their use policies for digital images. For the Darwin Day 2009 Main Page effort on Wikipedia, I’ve been putting together a list of portraits of Darwin. Although a number of websites have significant collections of Darwin images, there isn’t any single comprehensive collection. One interesting shot I came across is an 1881 photograph, possibly the last one before Darwin’s death, that was allegedly “rediscovered” in the mid-1990s when a copy was donated to the Huntington. Press releases and exhibition descriptions invite people to contact the Huntington to request images, so I requested the Darwin photo. The response I got was typical of how libraries and archives deal with digital copies of rare public domain material.

The Huntington quoted distribution fees for the digital files (different sizes, different prices), and also asked for specific descriptions of how the image would be used, so that the library could give explicit permission for each use. Had I wanted to use it for more than just publicity (e.g., in a publication) more fees would apply. Apparently the curators were not used to the kind of response they got back from me: I politely but forcefully called them out for abusing the public domain and called their policy of attempting to exert copyright control over a public domain image “unconscionable”.

In the exchange that followed, I tried to explain why the library has neither the moral nor legal right to pretend authority over the image (although, I pointed out, charging fees for distribution is fine, even if their fees are pretty steep). A Curatorial Assistant, and then a Curator, tried to explain to me that the Huntington actually has generous lending policies (you don’t “lend” a PD digital image, I replied), that while the original is PD, using the digital file is “fair use” that library has the right to enforce (fair use, by definition, only applies to copyrighted works, I replied), that having the physical copy entails the right to grant, or not, permission to use reproductions (see Bridgeman v. Corel, I replied), that other libraries and museums do the same thing (that doesn’t make it right, I replied), that big corporations might use it without giving the library a cut if they didn’t claim rights (nevertheless, claiming such rights is called copyfraud and it’s a crime, I replied), and finally that I should contact the Yale libraries and museums and see if they do things any differently (a return to the earlier “everyone else does it” argument with a pinch of ad hominem for good measure, to which I see no point in replying).

Unfortunately, the Curator is right that copyfraud is standard operating procedure for libraries and archives. Still, I think it’s productive to point out the problem each time one encounters it; sooner or later, these institutions will start to get with the program.

As an aside, the copyright status of this image is rather convoluted. The original is from 1881. The photographer, Herbert Rose Barraud, died in 1896. The version shown here (originally; now lost) is a postcard from 1908 or soon after, making it unquestionably public domain. It comes from the delightful site Darwiniana, a catalog of the reproductions and reinterpretations of Darwin’s image that proliferated in the wake of his spreading fame. Apparently, when the image was “rediscovered” in a donation to the Huntington, they thought it had never been published and was one of but two copies; a short article about the photograph appeared in Scientific American in 1995. Had it actually never been published until then, it would arguably be under copyright until 2047 because of the awful Copyright Act of 1976. I say “arguably” because of the vague definition of “publish” and the rules for copyright transfer (“transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright”) combined with the fact that another copy exists would seem to indicate that, at the very least, the Huntington has no place claming copyright. Paradoxically, publishing it for the first time in 1995 would have extended the copyright to 2047 but would have made the Huntington and/or Scientific American into violators of the copyright of whoever actually owned it (which would likely be indeterminable). But if it had remained unpublished, it would be public domain. I’m still unclear about whether it would have been public domain before 2002, when the perpetual copyright window of the 1976 law closed.

UPDATE – My thanks to the others who’ve linked to and discussed this post:

How are your Wikimedia Commons photos being used elsewhere?

I don’t know about yours, but I do have some idea of how mine are being used.

Google searches for my name and my username reveal a lot more instances than I was aware of, especially for news article illustrations.

In the “license, schmicense” category, I found this article from The Jerusalem Post, which takes a recent photo of mine (either from Flickr or Wikipedia, but more likely Wikipedia) as simply says “Photo: Courtesy:Ragesoss”.

Marginal cases include the hundreds of Google hits for “ragesoss” come from World News Network websites. This organization runs thousands of online pseudo-newspapers, such as the West Virginia Star and Media Vietnam, that aggregate content from real news organizations. Stories at all of their portals link to World News pages that have teasers for the actual articles at the original sources. And I’ve found a bunch of my photographs as illustrations on these pages. See these:

Of course, my photographs are not the ones used by original articles. World News seems to have used almost every photo I uploaded from the February 4 Barack Obama rally in Hartford, to illustrate campaign news unrelated to the Hartford rally. In terms of photo credits (see the links), most of them they say “photo: Creative Commons / Ragesoss” or “photo: GNU / Ragesoss”. Nearly all of my photos on Wikimedia Commons are copyleft under GFDL and/or CC-by-sa, so non-specific credits like that do not constitute legitimate use under the terms of either license. The GFDL requires a link to the license (GFDL, not “GNU”), and CC-by-sa at least requires notice that the image is free to reuse as long as derivatives are issued under the same license (simply “Creative Commons” is not a license). It is also implicit with CC licenses that credits for my photos should include a link to my Commons userpage, since the author field on the image pages is typically a link titled “Ragesoss”, not just the text. (The third link above, among others I found, does link to the GFDL, although the photo has nothing to do with the article.)

Another major user of my photos is Associated Content, a commercial user-generated content site that pays contributors. AC is a mixed bag in terms of legitimate uses of photos, since individual contributors are responsible for selecting and crediting the illustratons for their articles. This one, which uses a photo of Ralph Nader, credits my shot as “credit: ragesoss/wikipedia copyright: ragesoss/GNU FDL 1.2”. It almost meets the basic requirements of the license (all it needs is a link to the text of the license), although a link to the source would preferable to simply mentioning Wikipedia. This one, on the other hand, just says “credit: Ragesoss copyright: Wikimedia Commons”.

Popular Science, in this article, lists the GFDL, but links it to the Wikipedia article on the license rather than the actual text.

The Bottle Bill Resource Guide links to my Commons userpage, but does not list the license or link to the image source.

Another partly-legit use is by LibraryThing, a book related site that uses several of my photos for authors (e.g., Dava Sobel). They include links back to the original image pages, but the site behaves erratically and sometimes insists on me signing in or creating an account to view the image details.

Unexpectedly, I also found several of my photos illustrating Encyclopedia Brittanica. See:

In each case, they provide a link to one of the licenses (GFDL 1.2 and CC-by-sa 3.0 unported, in these cases), although they don’t provide a userpage link. At least they seem to take the licenses seriously.

Of course, it’s much tougher to find out where my photos are being used without mentioning me at all. I suspect that the majority of uses don’t even attempt to assign credit or respect copyright. Most of the publications that are serious about copyright aren’t even willing to use copyleft licenses, preferring to get direct permission from the photographer (even if it means paying, often).

BibliOdyssey on Commons

Peacay of the amazing BibliOdyssey blog has joined Wikimedia Commons (after a bit of encouragement from me). BibliOdyssey, which focuses on scans of printed art, is quite an amazing blog; it serves as a continual reminder of just how big the web is, and how little of it the typical person ever sees. Hundreds of libraries and archives are digitizing thousands of fantastic images, and Peacay trawls through the wide web and finds the best of them.

Unfortunately (as I understand it), although most of the original versions of what Peacay showcases are public domain, the copyright status of most of the images are in that murky space between free and unfree. The United States is fortunate (or maybe unfortunate if you are a world class library) to have Bridgeman v. Corel (for now, at least), but in most countries, a “sweat of the brow” doctrine means that whoever scans the pages of a rare book can claim copyright on the scans, even if the original is public domain. Even in the United States, it is typical for libraries to assert copyright control over scans of public domain material they own (e.g., as the University of Oklahoma does on its wonderful, growing collection of history of science images). Of course, no one on the web pays much attention to such claims (whether they have legal force or not), but for many of the images on Commons, a re-user trying to publish nominally free images in the traditional publishing world will still have to go through the usual trials and tribulations to secure permissions.

Anyhow, check out the great image sets Peacay has uploaded so far, and hopefully we’ll see more in the future.