UPDATE: We’re Changing the date for Fair Use in Art and Craft Day to May 1st, so we all have more time to work on our projects.

Tonight I was talking to my brother about the recent revelation that the AP is suing Shepard Fairey over his derivative use of one of their photos in creating his iconic HOPE poster. We were both upset at what is obviously an attack on fair use. (I wrote about fair use last spring, and there’s a nice article explaining it on the Stanford University web site. Essentially it is part of copyright law that allows limited use of others’ copyrighted work). We feel that Fairey’s poster is a clear example of the Transformative Factor of fair use. Here’s a description of that factor from the Stanford University Web Site.

  • Has the material you have taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights and understandings?In a parody, for example, the parodist transforms the original by holding it up to ridicule. Purposes such as scholarship, research or education may also qualify as transformative uses because the work is the subject of review or commentary.

EXAMPLE: Roger borrows several quotes from the speech given by the CEO of a logging company. Roger prints these quotes under photos of old-growth redwoods in his environmental newsletter. By juxtaposing the quotes with the photos of endangered trees, Roger has transformed the remarks from their original purpose and used them to create a new insight. The copying would probably be permitted as a fair use.

(Photo of Fairey poster Flickr by user Steve Rhodes, CC, Some Rights Reserved.)

We’re hoping a groundswell of support for fair use and Fairey might be created by actually exercising fair use. So we’re inviting you to do just that:

On May 1st post to Flickr, your blog, facebook or anywhere else, a picture of art or craft you created exercising the transformative factor of fair use in the spirit of Shepard Fairey.

What can you do until then?

  • Work on your craft or art
  • Spread the word by linking, or tweeting to this blog post. (Here’s a short sentence you can easily tweet):Creating transformative work for Celebrate Fair Use in Art and Craft Day: May 1st, 2009. http://tinyurl.com/fairday

  • Sign up for the facebook event.
Announcing Celebrate Fair Use in Art and Craft Day

9 thoughts on “Announcing Celebrate Fair Use in Art and Craft Day

  • February 5, 2009 at 6:26 am

    You might want to think about what is really fair play. I am a professional fine arts artist and photographer. To me, personally, there is absolutely no fair play by anyone who uses any part of any of my images for anything that results in monetary gain for them. Personal use is a different thing of course.

    But when I think about the long hours I put in developing a painting, do the initial studies and drawing, then the painting itself, I don't think anyone has to right to take any part of it for commercial use.

    Currently, I have a piece that has been juried into several art shows. It was based on a photograph that I took and the whole design and execution is entirely my own. In less than two months since it began to be shown, numerous “look-alike” images have sprung up and one artist even went so far as to say that his intrepretation was the first. I had to prove the photograph was mine, the initial drawings and all the studies were mine. Fortunately some of my artist friends saw this work in early stages and could verify that it was my work. So what's fair about this? Nothing. And this kind of “transformative” work goes on all of the time and is extremely common.

    You might feel the same way about some of your original knit or crochet designs if they showed up as someone else's work with maybe just a minor change.

    Like a lot of other things, what's fair is in the eye of the beholder.

  • February 5, 2009 at 7:51 am

    I think the key to this whole post is that it isn't just a MINOR change; the point is to change the meaning or idea of the work as a whole, using the original work as a jumping off point.

  • February 5, 2009 at 9:49 am

    Hi Jan–thanks so much for your thoughtful post. I'm sorry that you have had to waste creative energy defending your intellectual property. It's something that I do understand as a designer, but it doesn't mean I don't support fair use. I agree that the *transformative* factor of the work needs to be absolutely clear. My brother and I were chatting more about this and he said:

    “One's use of a work should be truly transformative — not just a few tweaks here and there, but a change that really makes it different enough from the original that it's not simply derivative. Make the work your own: just like the HOPE poster is Shepard Fairey's.”

    I agree with him–I wouldn't want my right to make transformative works restricted. If we as artists are going to retain our rights to fair use we need to exercise it properly. While what's fair may seem like it's in the eye of the beholder there is important copyright law to protect fair use.

    A side note about Shepard Fairey–he did not profit from his use of the photograph. He donated any money he received to the Obama campaign. (Not so of the many 'bootleggers' of his image: http://www.boingboing.net/2009/02/04/ap-tries-t…)

    Again, Jan, I'm so glad you took the time to comment. I look forward to continuing the conversation.



  • February 5, 2009 at 4:53 pm

    I think Fairey is a talented guy. That said, is his work really “transformative?” Those rules above are very broad and open to interpretation. If I apply one photoshop filter to another's photo, let's say that creates an effect similar to that of the fairey poster, is that “transformed?” If Fairey planned to make money off those images, which he has undoubtedly, he should have sought permission to use the photo. If that didn't work, he could have drawn his own headshot of Obama or found another photographer that would grant permission. Like I suggested earlier, if he wasn't making money on it, that's a totally different story. But we are entering an age where information, words, songs, music, designs, etc. are going to be our main means of production. If we open it up so that anyone can take another's creation and re-color/re-package it for profit, then we are diluting the value of everyone's work and putting our future in jeopardy.

  • February 5, 2009 at 8:14 pm

    Hi Amanda, thank you so much for taking the time to comment. I agree that
    it's often hard to interpret the copyright rules, but I feel pretty strongly
    in the case of Fairey that the work is transformative. I do, however agree
    with you. He should have sought permission to use the photo. I see no reason
    why he should not have. I read an interesting article today which quotes the
    photographer as saying he didn't even recognize the work as being derived
    from his photo, which certainly speaks to its transformative value:
    http://tinyurl.com/d7vp93. I have to disagree with the idea that
    transformative work dilutes the value of the original. I think in many cases
    it can attract positive attention to the original. Think about hearing a
    great parody before you knew an original song. Wouldn't you want to seek out
    the original and hear it too?

    Again–I appreciate your taking part in the discussion and I look forward to
    hearing more of your thoughts.

  • February 17, 2009 at 4:42 pm

    Funny — I just clicked through to your brother's site — “I provide data analysis and high throughput data management for scientific applications.” sounds an awful lot like what Leo does… Great minds run in small circles…. or something like that.

  • February 17, 2009 at 5:12 pm

    In stitchcraft, we're definitely grappling with these ideas every day. Constrained, as we are, by the human body, there's really only so many ways a sweater can go, only so many ways an armscye can be shaped. What constitutes “copying” and what constitutes original? Typically, I crunch my numbers from scratch. But what about designers that use software to aid in design? Or what if I use the geometry of someone else's armscye for a pattern I am working on?

    For the non-yarny: If I read 10 recipes (or 100 recipes) for apple pie and take (what _in my view_ is) the best from each, have I truly created a new recipe? Can their ever be a recipe for apple pie that isn't merely derivative?

    As to the Shepard Fairey thing — if the AP image were artistically/emotionally/politically “the same thing” as the Shepard Fairey image, then everyone would be running around with IT on the back of their cars and across their chests, and on their Facebook avatars, and clearly they are not.

  • February 18, 2009 at 10:44 am

    I would have to support this example as fair use…plus even though this article doesnt mention it-the original photographer did not have issue with the derived work

  • February 18, 2009 at 6:44 pm

    I would have to support this example as fair use…plus even though this article doesnt mention it-the original photographer did not have issue with the derived work

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