IP Law: Inspiration Photos and Intellectual Property

Full disclosure: I know nothing about intellectual property law. I didn't take IP in law school. I only squeaked by in my Law in the Information Age class because I knew the origin of the computing term "bug." None of the following may be construed as legal advice.

Yesterday Randy Kennedy's article Artist Files Lawsuit Against the A.P. Over Obama Image in the New York Times directly addressed a concern that artists, particularly quilt artists raise constantly. If an artist uses another person's photo as inspiration for a work, what sort of permission do they need from the photographer?

Mr. Fairey’s lawyers, including Anthony T. Falzone, the executive director of the Fair Use Project and a law lecturer at Stanford University, contend in the suit that Mr. Fairey used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message” from that of the shot Mr. Garcia took.
The suit asks the judge to declare that Mr. Fairey’s work is protected under fair-use exceptions to copyright law, which allow limited use of copyrighted materials for purposes like criticism or comment.
“Fairey did not do anything wrong,” said Julie A. Ahrens, associate director of the Fair Use Project and another of Mr. Fairey’s lawyers, in a statement on Monday. “He should not have to put up with misguided threats from The A.P.”

While the average artist isn't threatened with legal action, even amateur artists are issued such vehement, and probably inaccurate, warnings by their instructors.

For example, a couple of Mondays ago I took a quilting class with renowned fiber artist Katie Pasquini Masopust. We used pictures she had clipped from magazines as the jumping off point for every exercise in the class. Then she warned us that if we made any quilt based on a photograph we needed the photographer's permission. Of course, she had removed all identifying information from the images we were given so we couldn't track down the publication it was printed in, much less whoever held the right to the photo. If this were one of those law school exam essays where you're supposed to find all the potential parties and causes of action in a fact pattern the instructor who clipped all the pictures and used them in a class for which she was paid may well have been the property rights infringer. Certainly she was the Napster to each student's individual download. But I digress.

Ms. Pasquini Masopust's class was all about abstraction. The point of each exercise was to transform an image of a real thing into a design with varying degrees of abstraction. In other words, the whole point was to make a final design that was NOT a copy of the original. To paraphrase Mr. Falzone, each student "used the photograph only as a reference and transformed it into a 'stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message' from that of the" inspiration photograph. Here are my examples from the class:


This was supposed to be one step from realism to abstraction. I can definitely see a resemblance between that photo and my design. My design in some ways owes its composition to the eye of the photographer.


This was a few more steps from realism to abstraction. If I didn't tell you I based this design on this photo, no one would know. Now, just because you wouldn't be able to prove I infringed on someone's property rights doesn't mean I didn't. But if degree of transformation is a factor, I think this one passes that test with flying colors.

Now, for Ms. Pasquini Masopust's purposes there is an easy work around: base your work on your own photographs. This is fine, to the extent that you have access to the subject matter you'd like to depict. The point of Ms. Pasquini Masopust's designs is not to comment on appropriation.

But the point of some art is appropriation. The best example of an Appropriation Artist (this Wikipedia article has a nice summary of appropriation in art throughout history) I can think of is Richard Prince (here's his homepage and here's a Wikipedia entry). Prince actually took photographs of photographs from magazine advertisements. According to Wikipedia,

His image, ‘Untitled (Cowboy), a rephotograph constructed from cigarette advertisements, was the first ‘photograph’ to raise more than $1 million at auction when it was sold at Christie's New York in 2005, despite violating numerous copyright laws.

This type of art, while not heavy on the transformation factor of fair use is pretty heavy on the criticism or comment factor.

Now back to Shepard Fairey's Obama portrait. Unlike Prince, Fairey's intent did not seem to be to comment on the act of appropriating itself or any of the myriad intentions that artists have put forth to justify appropriation in their work. His intent seems to be straight forward support of Obama's candidacy for President of the United States. Now, if we hold to the Katie Pasquini Masopust (and I'm just using her as an exemplar - I've heard the same advice from lots of other instructors) school of art, Shepard Fairey should have taken his camera and photographed Barack Obama himself. Now, Mr. Fairey probably had the means to do just that. But what if a poor, cameraless artist in some political backwater where the Obama campaign didn't visit wanted to make a portrait of Obama? Does their inability to capture the subject in person render that subject out of bounds? I hope not.

While I understand art teachers feel a need to protect their students from unwittingly breaking the law, a little information can be a dangerous thing. In the world of intellectual property I hear they call it a chilling effect. A teacher's good intentions lead to students' self-censorship which hampers their perfectly legitimate free expression.

Free the Quilters!

Just a Reminder: I know nothing about intellectual property law. None of the preceding may be construed as legal advice.

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