So, it looks like the artist behind the iconic poster of Barack Obama actually did use an A.P. image as a template to create it. Still, there’s a lot to discuss about copyright infringement, Fair Use, etc.

However, first the details from the NY Times:

The A.P. claimed in January that Mr. Fairey owed them credit and compensation for using the photograph. But in February Mr. Fairey sued The A.P., seeking a declaratory judgment that the poster did not infringe on the agency’s copyrights, and that he was entitled to the image under the “fair use” exception of the copyright law. The A.P. countersued in March, saying that Mr. Fairey misappropriated its rights.

Mr. Fairey told The A.P. — and his own lawyers — that he used a shot from an event about Darfur at the National Press Club in Washington event where Mr. Obama was seated next to George Clooney. Instead, the photograph he used was a solo image of Mr. Obama’s head, tilted in intense concentration. Mr. Fairey admitted that in the subsequent months following the suit and countersuit, Mr. Fairey destroyed evidence and created false documents to cover up the real source.

“In an attempt to conceal my mistake, I submitted false images and deleted other images,” Mr. Fairey said in a statement. “I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”

Yes, Fairey lying about this was wrong, stupid, etc. Shame on him for that. But, as the title suggests, that doesn’t make his use of the photo copyright infringement.

Let’s look at The A.P.’s actual claim. They’re saying that you can’t create ANYTHING that uses their content as mere reference material without paying them. They’ve done similar things with bloggers in the past, and their policies are, in a word, nuts. Because they literally expect people to pay to use even a tiny snippet of their writing or posting a picture. Actually, I’m probably in violation of their terms of use right now for using the photo at the top, but that’s where Fair Use comes in…

The government describes it as such…

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Now, there are 4 basic ways that Fair Use can be applied to any given case, and my guess is that Fairey is using the following as his way out, “The effect of the use upon the potential market for, or value of, the copyrighted work.” What that means is that the use of the copyrighted material doesn’t negatively impact the value of the image.

And here’s where the true irony of this case comes in…nobody even knew about that Obama photo before Fairey made it famous. So he created the market for The A.P., not the other way around.

But wait…there’s more!

Apparently, there’s confusion as to whether The A.P. even owns the photograph!

Again, from NY Times…

Complicating the legal battle, in July, the freelance photographer, Mannie Garcia, filed court papers in July saying that he was the one who was owned the copyright of the 2006 photo; Mr. Garcia’s assignment was to photograph Mr. Clooney, and he contended that he never assigned his copyright rights to The A.P.

So let me get this straight…The A.P. told somebody to photograph Clooney but they’re claiming that ANY photograph taken during that time belongs to them?

Hmmm….pot meet kettle. Kettle, pot. I’m sure you two have a lot to discuss. Maybe you can talk a little about this guy while you’re at it.

Bernie Madoff being pinned to the wall by a huge, farting bull…which is supposed to represent Wall Street.

All from the mind of Chinese artist Chen Wenling.

I mean, come on…that is AWESOME!

A question…if you had to create a sculpture that summed up what happened last year…what would it look like and why?

(Photo: BBC)

And not only that, my sister’s boyfriend wrote the issue! He’s Zeb Wells and he’s mentioned further down in the following excerpt from USA Today:

On Jan. 14, Marvel Comics is releasing a special issue of Amazing Spider-Man #583 with Obama depicted on the cover. Inside are five pages of the two teaming up and even a fist-bump between Spidey and the new president.

“It was a natural after we learned the new president is a Spider-Man fan,” says Marvel editor in chief Joe Quesada about reports that Obama once collected Spider-Man comics. “We thought, ‘Fantastic! We have a comic-book geek in the White House.’ ”

The White House transition team did not respond to a question about the extent of Obama’s comic-book geekiness, but Obama did mention Spider-Man during the campaign, primarily at children-oriented events. And during an Entertainment Weekly pop culture survey, Obama said Batman and Spider-Man were his top superheroes because of their “inner turmoil.” (John McCain picked Batman.)

In the story by Zeb Wells, Todd Nauck and Frank D’Armata, Spider-Man stops the Chameleon from spoiling Obama’s swearing-in. At one point, Spider-Man says he mistook Vice President-elect Joe Biden for the Vulture (a vintage Spider-Man villain).

One thing I can tell you that USA Today didn’t is that the transition team knew that this was going to happen and gave it the thumbs up. I won’t tell you who told me that, but maybe you can guess. :-)

In any event, here’s the cover…

And some inside pages…

Congrats Zeb!

Okay, who wants to make a predator made out of popsicle sticks?

UPDATE:
I can’t believe I didn’t think of the obvious Balloon Juice jokes.

John Cole will not be pleased.