A lot of my day job involves work about copyright. That is why you will notice that I am now so careful about using only free and fair use images and giving credit. It’s made me paranoid. But also, I really didn’t know much in the past. I thought, for example, I could take anything from Wikipedia and it was okay. It turns out, that’s not true. All images on the site are free, but most of them require attribution. I’ve just taken to providing attribution regardless, because I like giving people credit. I’m grateful that I can use their work to provide a better experience for my readers.
But last night, I was thinking about the Barack Obama “Hope” poster, which was created by Shepard Fairey. It’s a beautiful design. And after thousands of parodies, beyond the visual idea, it is clearly hard to render well. But back in 2009, I was listening to Fresh Air, and Mannie Garcia was being interviewed. He was a photographer for the Associated Press, and it turned out that Fairey had used one of Garcia’s photos as the basis of the “Hope” poster. It was because there was a legal battle going on: how dare Fairey “steal” Garcia’s work!
As a legal matter, I think what Fairey did was entirely in keeping with the letter and spirit of fair use. Garcia had taken thousands of photos. He didn’t recognize that Fairey had used his image because Fairey hadn’t. Fairey used a small part of one of his images and made something totally new. But Fairey knew the slippery legal foundation of all this because he tried to hide the source of his poster. That was stupid, but probably standard operating procedure, because the way the law works, if everyone had a good enough lawyer, nothing would ever be created.
The way it worked out, Fairey and the AP made a settlement where they would share the royalties going forward. I believe Garcia was squeezed out of the deal all together. Think about that. Fairey takes a small part of an endless supply of photographs that the AP publishes, each of which has negligible marginal value. He turns it into something that is not only of great cultural important but also of great financial value. And he has to share the profits from that. This is rent seeking, pure and simple. This isn’t about art. The AP hired Garcia because they wanted photos to go with an event that was being covered. This is just a big business forcing an innovative small business to pay it money. It is a kind of protection racket for big corporations.
But what bugged me in the interview was that Garcia was offended at the idea Fairey would just go online and look for images — that he did not “condone people taking things, just because they can, off the Internet.” The nature of all art is acquisition. But in the visual arts, it’s totally out of hand. No one would ever be sued for using the phrase, “Colorless green ideas sleep furiously.” Yet that is exactly what happened in the case of the “Hope” poster. In fact, it was even worse, because that particular element of that particular photo is not nearly as memorable — and creative — as Chomsky’s sentence.
The original purpose of copyright was to encourage the creative arts. It has been a long time since that’s been true. Now copyright discourages the creative arts. All copyright really encourages is the promotion of things that look salable and legal action against creative workers. It’s sad. And it means that creativity has been corporatized. It’s just another sign of an empire in decline.
Afterword: Copyright and Fair Use
It’s amusing that Fairey couldn’t use part of the original image to make his iconic poster. But Wikipedia can now use his poster — a far greater creative achievement — under fair use.