All the photos of Mike Tyson’s face in the Internet copyright news arena this past week carried me back to the not-too-distant past when another face was ubiquitous there—President Obama’s. Tyson’s facial tatoo had found its way to the face of an actor in the newly released movie “The Hangover Part II.” About two years ago, a facial expression, now famous, was everywhere in much the same way due to the Obama Hope poster copyright controversy. This controversy arose when a work of art was created based on a photo of Obama. The work was titled “Hope.” Its creator was a well-known graphic artist, Shepard Fairey.
We are all copiers at times, whether our preferred media is print, video (YouTube for example), or a blog. And what is there for us less well-known copiers to learn from these two copyright-related newsworthy examples?
Both faces belong to celebrities. Obama is more of a nontraditional celebrity. He is not a movie star, but he is definitely in the public eye, and his face could be said to be something of an icon now. Both Tyson and Obama might claim in certain cases a right of publicity, if not a copyright on their face. And no doubt the cases were brought forward and gained notoriety because the faces are so much a part of our culture. In both cases, the faces depicted added the perceived value to the works that spawned the public interest in them. That perceived value gave the suing parties the incentive and a good argument that the infringements affected their ability to benefit financially from their valuable works.
The first obvious question is WHO is doing the suing? Was it Tyson and was it Obama who threatened legal action for use of their face? The perceived value of the art created is tied to the faces, but the accuser in each case turns out to be someone other than the man behind the face. Tyson himself is in the movie in question. He had no reason to take the movie company to task. Since Obama could benefit politically from the popularity of the artist’s portrayal of his image, he also was without reason to bring suit for the use of his image in this case.
The person who had their face or some aspect of it captured or copied was in neither case the person who claimed infringement of rights. In both cases someone other than the subject of the art claimed infringement by the person who added something to the original creation—who made a derivative of it. In Obama’s case, a photographer named Mannie Garcia snapped an Associated Press photo of his expression and the photo became a popular copyrightable element. In the Mike Tyson case an artist named S. Victor Whitmill created a tatoo image on Tyson’s face and thus the tatoo became a popular copyrightable element.
In both cases the copyright owners claimed the abuser had created a derivative of their original work. Under U.S. Copyright Law, the copyright owner has the exculsive right to create derivatives. Fairey created a derivative of the Associated Press photo in another medium. He created a graphic art poster of Obama based on the photo snapped by Mannie Garcia and claimed by Associated Press. Warner Brothers included in their movie “The Hangover Part II” screenshots of an actor bearing a tatoo identical to the one created by Whitmill. Both parties accused of infringing were said to have published a derivative of the original work created without the express permission of the creator and/or copyright owner—the copyright owner claiming infringement in the Tyson case being Whitmill and in the Fairey case being Associated Press.
The lesson for us as self-publishers is to be sure before copying anything into our published works, whether these works be blogs, books, multimedia, or visual presentations of any kind, to consider who created each of the copyrightable elements that may have gone into the creation or production of the work we are copying. We should also consider the value placed on each separate component of the work by their separate creators or by the persons who have commissioned these creators to create the separate elements.
Let’s face it, although the risks of being sued for infringement may be low, the prospect of facing down an angry copyright owner is disturbing enough to keep most informed publishers from making derivatives of copyrighted works without permission. And it pays to consider all copyrighted elements related to the value of the work and who has a stake in each of them before using it without all required permissions lest we have to . . . “face” the music.
Copyright © 2011 Integrated Writer Services, LLC. All Rights Reserved. For permission to excerpt content from this blog, contact Joyce Miller via our Contact Us form.
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