“The medium is the message” – Marshall McLuhan,  Understanding Media:

In reading recent news articles about artists, their appropriation of Internet photos, and lawsuits filed against them by their original owners, I find McLuhan’s words to ring true. What does it say about our culture when content is no longer considered valuable or attributed to its original creators? Everything is seemingly free on the Internet — photos, music, video, et.c. — and all a user has to do is hit right-click, “Save Target As”, and possess a copy for themselves.

When is the issue about Fair Use and when is it a case of piracy? Fair Use, is the legal framework, that allows use of copyright work within a certain framework such as criticism, commentary, news reporting, teaching, scholarship or research.

According to Cornell law, the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors”

The New York Times documented Shepherd Fairey’s fight against the Associated Press about the origins of his infamous Obama “Hope” poster: Was Fairey’s use of an AP photographer’s photograph to create his illustration  fair use? Imagine if Fairey hadn’t lied about the original photograph he used in the first place.  According to a quoted source, “the significant issue in fair use cases is whether the image has been transformed from the original.” Was Shepherd’s artwork a major transformation of the original work, the photograph? Did he elevate his artwork beyond the original photograph as to make the connection between the two unrecognizable? The AP has questioned that Fairey has profited from the Obama “Hope” poster and its endless reproductions on merchandise (via Wired Magazine).

The same issue could be said in the Portfolio Magazine article, “On the rights of Molotov Man: Appropriation and the art of context” by Joy Garnett and Susan Meiselas. An artist, Joy Garnett, had taken from the Internet a published photograph shot by Susan Meiselas to paint her own version of it. When confronted by Meiselas’s attorney, Garnett amended the work to credit Meiselas but refused to seek attribution from Meiselas for future reproductions, calling it unrealistic: “I would not, I said, agree to seek written approval from Susan anytime my painting might be reproduced some- .where. I thought this was too difficult a burden.” Garnett cited that Meiselas’s photograph had been bootlegged and recreated elsewhere — commercially and in public — and thus, felt, Garnett could co-opt the piece as it was in the public cultural realm. However, legally, Garnett and the other co-opters fall outside of Fair Use. Without Meiselas’s photojournalist contribution, there would have been no Molotov Man  to begin with. As an artist, Garnett had plans to exhibit her  Molotov Man painting in a commercial art gallery.

As a former graphic designer in the newspaper business, I have seen both perspectives of the original owner and the inspired artist and have faced this issue myself. In both cases above, I believe the inspired artworks weren’t transformative or a commentary on the original works that they became derived of. In art, the guidelines for Fair Use seems involved in making a comment or parody about another image or artwork. Also, Fair Use cases take into account the market value of copyrighted works and the intended use for the derived work. In both cases, Fairey and Garnett had intentions to make their artwork for-profit. In my line of work, if the artwork I create can still be pointed out and recognized to the original artwork, I always try to seek permission to include it or if not gained, remove it from my work.