February 5, 2009

Fair Use Basics & AP Accuses Obama Artist of Copyright Infringement

Sometimes my blogging days have themes, and today was all about Fair Use. First I came across a video on the basics from Daisy Whitney, then I stumbled across this story about the AP possibly accusing Obama artist Shepard Fairey of copyright infringement. Both have relevance for doc filmmakers and the images and footage they incorporate into their films, so read on...

Fair Use Principles at NATPE  

Crack new media reporter Daisy Whitney brings a bit of NATPE to you in the latest installment of the New Media Minute. She briefly covers the new media themes at the show, and the second half of her report is dedicated to fair use.

For those filmmakers who are just starting to dip their toe into the complicated pool that is fair use, her podcast is worth a listen. Whitney lays out some basic principles picked up from the good peeps at NATPE about how much other material a content creator can use in his or her own work.

She says the three basic questions to ask yourself are:  
-Did you need to use the work to make the point you’re making?
-Did you only use what you need?
-Is the connection clear between the work that you’re using and the point that your’e making?

Once you’ve gotten your feet wet and are ready to swim in deeper waters, check out the Documentary Filmmakers Statement of Best Practices in Fair Use, which delves further into the topic.

Shepard Fairey's Obama HOPE pic: Where to draw the line? 

Several pieces floating around about the fact that Fairey's now iconic image of Obama is based on an Associated Press photograph which was taken in April 2006 by Manny Garcia. It was snapped while he was on assignment for the AP at the National Press Club in Washington. 

From the Huffington Post:

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

"The Associated Press has determined that the photograph used int he poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement.

"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP." 

An earlier piece from Tech Dirt from January 26th traces the beginning of the story. According to the post, Garcia doens't have a problem with the fact that Fairey based his work on the photo. But that may not be enough. 

Still, there may be some unresolved questions here. Considering that the work was done for hire by the Associated Press, it's possible that the AP might actually own the copyright on the photo -- and we've already seen that the AP has, at times, had a somewhat twisted view  of copyright, especially when it comes to fair use. And, of course, with the Obama administration filling the Justice Department with big copyright supporters, perhaps the DoJ should begin investigating such infringement... 

This is a great real world example of why it's so important to find out who is the true owner of the rights to any and all works you want to use in your film. Sometimes, even if someone is willing to give you the footage or permission to use an image, they may not have the right to do so. It's like when a restaurant manager says, "Sure, you can shoot here all night!" and then the owner walks in and says, "What the the hell are you going? Get ouf of my restaurant!"