There has been a lot of discussion over the last little while about “fair use” of image content online and off. This discussion, which has been ongoing for a while now, was sparked off again by the Associated Press who have made an aggressive run at artist Shepard Fairey for a very popular poster that was “inspired” by a photo originally captured by AP Photographer Mannie Garcia. For more details on this story I encourage you to check out this TechCrunch post on the subject.
While debating the importance of an easily understood and clear definition for fair use, one that reflects the changes on the web today is a very important discussion, I’d like make another observation and then ask you a question.
The AP decided with razor sharp confidence that the image above was created using one of their photographers works. I suspect they used some pretty impressive technology to accomplish this, the kind of technology that is provided by companies like Toronto’s own Idee or Israel based PicScout, which technology was used or if it was either of these companies I am not sure, but I doubt AP would launch a lawsuit without the evidence they felt they needed to do so, right or wrong. These image recognition technologies scour the web on behalf of their clients, the AP, Getty Images, Corbis, etc…and find where the images are used, the context they are used in, and even have the ability to identify images that have been heavily modified from their original look. Check out this Idee post on the Hope poster issue and see how their technology manages to specifically identify the poster as the AP image rather than another very similar image, its really quite cool and worth a look.
The fact remains now that conventional “fair use” no longer applies in the instance of a lot of different blogs where even the simple adsense implies commercial use and technologies out there are checking your sites and alerting the rights holders to any violations that are being made as it relates to use of their content. How the rights holders take action is also changing, they are becoming increasingly aggressive as the blog world rises to the top of news media and continues to prove that the traditional news media model no longer works. I would like to add traditional media is the market these agencies currently rely for almost all of their revenue, they are increasingly looking closer at the blog world and situations like the Hope Poster Debacle and earlier instances of attacks on fair use and non-commercial use will tragically continue to become more commonplace.
The good news is citizen journalism is an explosive area and powerful news resource. The twitpic photo of the Hudson plane crash is an excellent example of this. The wealth of user contributed and creative commons licensed content on the web is a great and steadily updated source photo content as well.
My question for you is; Where do you get the images you use online now, and does any of this have an impact on how you will source and use image content online?
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- Once Again, The AP Tries To Redefine Fair Use; Goes After Shepard Fairey For Obama Poster (techcrunch.com)
- Obama images and not-so-fair use? (nevillehobson.com)
- AP Alleges Iconic Shepard Fairey Poster Infringes Copyright (laist.com)
- AP Bullies Shepard Fairey Over Obama Poster [Art] (gawker.com)
- Copyright Infringement And Obama’s Iconic Campaign Poster (techdirt.com)
- Where Shepard Fairey Got that Obama Pose for the Poster (laist.com)
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Tags: AP, Associated Press, Citizen journalism, Creative Commons, Fair use, fotoglif, Getty Images, Hope poster, Israel, media, obama, photos
We must answer the following riddle: When is a photograph no longer a photograph?
Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.
The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.
There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.
Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.
Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.
The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.
Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other–all remain perfectly distinct and identical to the original.
Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction–but photographic nonetheless.
We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.
http://bulk.resource.org/courts.gov/c/F3/207/207.F3d.1119.98-16061.html
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