BY THOMAS HUTHWAITE

What do George Bush, Bob Dylan, and Shepard Fairey have in common? It sounds like the start to a bad joke, but potential copyright infringement is no laughing matter – particularly when trying to make a name for oneself as an original artist.

Here are three cautionary tales…

“Hope”

In 2008, street artist Shepard Fairey created an iconic image for Obama’s presidential election campaign. Fairey was already known for his use of repetition in street art (notably his “OBEY” poster featuring wrestler Andre the Giant), but this was taken to the next level with his blue and red image of Obama above the word “HOPE”.

The image went viral online and by October 2008, Fairey claimed to have printed the image on 300,000 physical posters, 1 million stickers, clothing and other items, not to mention the number of downloads of a free printable digital version. Fairey reportedly cited his inspiration as being a contemporary take on a well-known JFK portrait, or the image of President Lincoln on the five dollar note.

Barack Obama won the election, and Fairey became an internet sensation. But Fairey’s story became even more sensational in 2009 when he was accused of basing his image on an Associated Press photograph taken by Mannie Garcia in 2006. Associated Press sued for copyright infringement, while Fairey sought a declaration that his use of the photograph was protected by the doctrine of “fair use”.

In October 2009 and in the light of damning discovery documents, Fairey admitted that he had based his poster on the Associated Press photograph, and that he fabricated and destroyed evidence to hide that fact. With a finding of infringement likely, Fairey and Associated Press reached a confidential out of court settlement agreement in January 2011.

Fairey was later charged in a criminal suit with destruction of evidence and sentenced to 300 hours of community service and a US$25,000 fine.

Associated Press photograph and Fairey’s poster

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 “Drawn Blank”

In late 2011, Bob Dylan exhibited the first of a series of paintings entitled “Drawn Blank”. The exhibition’s description was a “visual journal of travels in Japan, China, Vietnam, and Korea” with “first-hand depictions of people, street scenes, architecture and landscape”.

Within days, internet chatter revealed what appeared to be the true source of Dylan’s paintings. One painting, called “Opium”, was almost identical to a photo by Léon Busy (1915). Another, entitled “Trade”, is a replica of a photo by Henri Cartier-Bresson (1948). These are just two examples of several alleged copies:

Perhaps Dylan had ‘drawn a creative blank’ himself, and the exhibition title should have tipped us off. However, there have been no further repercussions for Dylan’s apparent copying, except perhaps a public loss of respect for his works.

Léon Busy photograph and Dylan’s painting ‘Opium.’

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Henri Cartier-Bresson photograph and Dylan’s painting ‘Trade.’

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“Art of Leadership”

It’s now mid-2014, and the gist of this article should signpost the irony of George Bush’s exhibition title. Instead of taking a lesson from the above case studies or leading by example, Bush also found himself the centre of controversy.

Bush gave detailed explanations of how he chose to paint each of the political figureheads shown in his exhibition. He explained having painted his father George H.W. Bush with a “gesture of compassion”, and Angela Merkel as being a “sympathetic portrait”.

But critics have now identified that many of Bush’s images are uncannily similar to the very first result of a Google images search. Here’s a visual example:

There seems to be little excuse for Bush, who once had access to all of the leaders in his exhibition, and certainly could have obtained an original photograph (or live sitting) of his own father. While being caught out must have caused some embarrassment, no further action has been taken against Bush.

Associated Press photo and Bush painting

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Armin Linnartz photo and Bush painting

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Take home messages

  • Do not copy existing copyright works or substantial parts of those works. Google search results and online images are not always “free” images in that they might well (and often do) attract copyright protection.
  • Create an original work, using inspiration where necessary. If you are drawing on some form of inspiration, carefully check and acknowledge your sources where required.
  • If you want to use a copyright work outright, ask the owner for permission. Without the owner’s permission, direct copying of a work is likely to amount to copyright infringement.
  • If you want to share your work, but think it’s difficult, talk to someone about using a Creative Commons license. They’re easy to understand, simple to apply, and provide clarity for all involved.
  • Lastly, be honest about your inspiration. If you are using someone else’s image – even if only as ‘inspiration’ – chances are that you will be found out!

*The above images are reproduced in accordance with section 42 of the New Zealand Copyright Act 1994: Fair dealing for the purposes of criticism, review, or reporting.

Thomas Huthwaite is an Associate at Baldwins Intellectual Property, an intellectual property patent attorney firm

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