The thin line between fair use and infringement

As a representational artist, over the years I have done art from photographic sources, Both my own and others. I have recently, begun to wonder what the true meaning of copyright is and what is myth. I always worked from the guide line that if you change it 30% or more you are not infringing on the original authors rights. WRONG there is no magic percentage that lets you of the hook. Copyright is all about intent. The intent of the originator and the intent of the copier.

Right now, playing out on the world stage is a case that touches on this. It seems that an artist Shepard Fairy created a poster entitled "Hope" of President Obama during his campaign. He used an AP photo, by M. Garcia, of the President as the bases of his poster . For me this is a timely topic. Because I do agree with Fairy that an artist can use a photo under the fair use clause in the Copyright laws. http://www.copyright.gov/fls/fl102.html Although, he did more than look at an image and interpret it into a different medium. He took the image into his computer and posterized it in photo shop and added a few additional elements.

Mostly, as an artist I have found images to work from based on need or necessity, not having availability to see or witness an event or subject matter. This artist (Fairy) just copied the image. I think that it is a skinny hair he is splitting. Here is his argument as I hear it. . . Intent, the intent of the original photo was to document the public figure in a factual news setting. Intent, the intent of the poster was to create an emotional image to mark the message of President Obama's campaign. Here in lies the rub, the copyright laws as they play out in the real world are subject to interpretation by people (judges and lawyers). How do you judge the intent of the artist? Both the originator and the user? Who can say that the originator did not want to convey a message of hope inherent in the expression captured in the original photo? How can you say that the future president was thinking hope and not just remembering a pleasant memory? So this is the thin line we all travel in the artist world post internet. We can all find images of anything simply by googling a thought. Bam! there it is, hundreds of thousands of images and pages to look at. Instantly. So the trap is there, the intent, that only we know, and fair use, that is subject to interpretation. So what are we to do?

One online group I belong to adheres to the "get permission first" or simply use only your own photographs to work from. That is probably the safest course of action, but it is not the only way to go. In investigating copyright laws I have come to understand a little. Unauthorized copying of an image, a book, essay, cd, dvd, etc., is an infringement, no question. But if I look at an image and draw it by hand, am I "copying" it or am I building on the image to go further, to add to the image. A photograph is a moment in time captured by a mechanical devise with a human hand and eye guiding it. A drawing is an interpretation of that moment, as long as the drawer does not trace or project the image verbatim, how is that a copyright infringement? And then there is intent. Do I, as an artist want to make a painting of a photograph? Or do I want to use the photograph for information to create a painting? So in the latter case the photo becomes research, which is allowed under the copyright act. More in the context of scientific copyrights, but I think that a case can be made for the visual arts as well. Copyrights are meant to protect the author/artist from having monetary gains unfairly taken from them. But the copyright laws are not meant to stop creativity. Once and image comes into the world it exist, and by existing it is there for all to see and to incorporate into their reality. Van Gogh could not have painted like he did if Monet had not painted like he did. Art and images feed on each other, and with the internet the speed by which they feed off of each other is gaining momentum.

A poster for a campaign, a photo for a news story, one can not exist without the other, now. The bottom line no matter how the Fairy case goes, both Mr Fairy and Mr. Garcia, have received tremendous publicity and the value of both images has risen. I believe that ultimately this will be settled by a cash settlement and that all parties involved will use this 'fame' to further their careers. This is the greater reward for the parties involved with this copyright case. This reward could not or would not be as great if it were not for the internet, the same entity that created the case. I am sure that Fairy found Garcia's image on line and took it and used it as the bases for his poster. Without the internet he would have had to find a photo print and scan it into and without PhotoShop® he would have had to drawn and image or photographically enhanced it in a dark room. So, if Fairy had use an more obscure photo or (and he does) a more obscure person to create a poster would this even be a subject? And, how many times a day is someone without a national stage downloading and using internet images? The internet has, by its very nature, created this perplexing dilemma.

The only solution for us in the visual arts is to self police. We need to try to use images we have permission to use, or our own photos, or interpret images the old school way by drawing by hand using the eye to hand filter. I do not say that we close our eyes to the images out there to see and build upon, but we do need to be vigilant in our "fair" use of those images. For most of us we cruise under the radar, far from the national stage. Most of us would love to have the problem of Fairy, because ultimately (though not always) copyright issues happen because someone has made money from someone else's image. Making money is a problem I would like to have!