Wednesday, January 21, 2009

Shepard Fairey: Obey Copyright

(There is an update on this story near the bottom)

According to Reuters a blogger has discovered the source material of Shepard Fairey’s image of President Barack Obama titled ’Hope’. Michael Cramer took it upon himself to discover the identity of the photographer who took the Obama photo that Fairey had used as a resource for the now “iconic” poster. Fairey has openly stated that he found the images while searching for Obama image on Google. Cramer eventually found a match-- a photograph of Obama taken by Reuter’s veteran photographer Jim Young.

According to the Reuters article the photographer does not care that Shepard Fairey used his photograph without permission, stating, “I’m honored, but I’m glad it didn’t come out until after the campaign,“, he went on to say, “I think even if I had known it was mine, I would have kept quiet. It would be just my little secret.” I’m not sure what Young is implying with his statement-- perhaps he thinks that Obama would have lost support from the art community had it been revealed at that time?

On one hand you can say that Jim Young is being admirable. However, on the other hand you can say that he is being foolish-- working against his profession. After all, there has been heated debate about potential Orphan Works legislation for years now. Over 60 visual art and photography organizations have stood against Orphan Works legislation.

Thus, the issue concerning Fairey’s use of Jim Young’s image without permission or credit is a perfect example of how Orphan Works legislation can harm artists if it is passed at some point in the form we have come to know it. Needless to say, I feel that it is of the utmost importance that the needs of so many creative professionals be acknowledged. In other words, the issue is not about Young taking this alleged infringement by Shepard Fairey with a grain of salt-- the issue is that this could have happened to any visual artist, any photographer, anyone. You.

This is why it is important for works by living artists to remain protected. The current legal repercussions for copyright infringement should remain intact so that creators can adequately defend their copyright protected works and receive the compensation they deserve when their rights are infringed upon. This is why Jim Young-- assuming he holds the copyright for the image-- should consider using what has happened as a way to gain momentum concerning the debate over copyright.

Having some knowledge of Shepard Fairey’s history of alleged copyright infringement and examples of him settling out of court I knew in my gut that eventually the truth would come to light. I was not the only one with concern. Now that the truth is free-- or allegedly free-- I can only hope that those involved will do the right thing. What do I hope for?

*I hope that Shepard Fairey will think twice before using random images that he finds.
*I hope that Shepard Fairey will respect the rights of fellow artists and serve as an example for upholding and respecting copyright laws.
*I hope that the present form of Orphan Works legislation is never passed and that people use this story as an example of why it is dangerous to creative professionals.
*I hope that people can set their emotive support for the ‘Hope’ poster aside in order to see that this is an issue of artist rights.
*I hope that the media will notice that this is the perfect time to discuss the rights of artists and legislation that may harm those rights.
*I hope that President Barack Obama will be a true champion of the arts and protect the rights of the creative community-- rights that we need in order to be productive and successful.
*If there is anything to this story-- even if Jim Young refuses to defend his copyright-- I hope that President Barack Obama will reject any further “help” from Shepard Fairey as a sign of solidarity with hundreds of organizations and millions of artists, art buyers, and artist rights advocates who support copyright protection.

Let us pretend that Jim Young was infuriated with Shepard Fairey. Let us assume that he wanted to defend his copyright and seek damages from the controversial artist. I’m not a lawyer, but I do have some basic understanding of copyright law based on conversations I’ve had with attorneys and other individuals who work closely with copyright issues. My opinion is that this would be a case of copyright infringement due to several factors:

* Making copies of a work that is based on a copyright protected image is copyright infringement unless the artist has permission from the photographer to utilize his photograph within the context of the artwork. In this case Shepard Fairey and his business partners should have had permission from Jim Young before distributing posters derived from Young’s photograph of Obama.

* Fair Use can only protect an artist like Shepard Fairey to a certain point. Fair Use is acceptable when an artwork is copied for purposes of criticism, comment, news reporting, teaching, scholarship, and research. However, the right-- the Fair Use defense-- is not absolute. I think printing thousands of posters involving the image is well beyond Fair Use. The issue is not that Fairey used an image of Obama-- his First Amendment rights allows him to do so-- the issue is that he did not seek permission from the photographer from which his image was base.

Since Shepard Fairey worked closely with companies that distributed the image-- and since Fairey technically runs a company-- the venture was predominately a commercial one regardless if “all of the money” was donated to the Obama campaign. After all, someone profited off of it. There are even reports that Shepard Fairey sold Urban Outfitters exclusive rights to some of the merchandise. All of this would come out if Shepard Fairey had to defend his Fair Use of Jim Young’s Obama photograph. In this scenario the photographer could take action against Shepard Fairey and others who helped promote and sell the image.

If this issue were to go to trial the jury would consider the potential value or market of the original work-- in this case Jim Young‘s photograph. In this scenario jurors would decide whether the alleged infringement sought to supplant or divert sales away from the original work. One could say that Shepard Fairey intentionally diverted attention away from Young’ photo of Obama-- he did not give the photographer credit nor did he ask permission. The court would decide if Shepard Fairey’s ‘Hope’ suppressed the market or value of Jim Young’s photograph.

In a sense, both the artist and the photographer would be at the mercy of the jury. However, in cases like this the jury will think more about facts than law. So the fact that the portrait of Obama in Fairey’s ’Hope’ matches when flipped and placed over Young’s photograph would not bode well for Fairey’s defense of Fair Use in that scenario. It would be a case of Copyright versus the First Amendment. I will say that I think Jim Young would have a lot of support if he decided to take action. Personally I think he is obligated to take action if indeed he holds the rights to that specific images. There are many photography organizations and visual arts organization fighting against infringement like this due to ongoing Orphan Works legislation. It would be a major win for copyright supporters in the arts community.

*Copyright infringement does not have to be word-for-word copying-- it does not have to be literal. In fact, the total concept and feel of a work can also be protected by copyright. There is no specific percentage that needs to be reached before a work can be considered infringement. Since the placement of the face is exactly the same other than being flipped I think that it is possible that infringement occurred.

*One could claim that Shepard Fairey’s version of the photograph is a derivative work-- that Hope is derived from Jim Young’s photograph. However, the owner of a copyright protected work has the exclusive right to prepare derivative works and authorize others to do so. Thus, Shepard Fairey would have had to obtain permission from Jim Young in order to create, print, and distribute works derived from Young’s photograph of Obama.

*One could say that Shepard Fairey’s image is acceptable based on appropriation. However, appropriation-- a work that involves appropriating the property of someone else in order to claim it within his or her own work-- is hard to define and would most likely be up to a jury to decide. Appropriation is not a solid defense. Some artists have lost small fortunes over the issue.

In court the judge and jury would examine three points when observing an alleged violation of copyright infringement. First, they would find out if the artist had access to the work he or she infringed upon. Shepard Fairey had access to the image-- he admits that he found it online doing a Google search for Obama images. Second, they would examine if any copying had occurred by viewing the original work-- the photograph-- alongside the work that allegedly infringed upon the original work. Look at Michael Cramer discovery. Third, the jury would decide if the copying was substantial. Again, it would really boil down to how that specific jury felt at that specific time.

If Jim Young owns the copyright for the photograph and has officially registered it he would be able to pursue a copyright infringement lawsuit against Shepard Fairey easily. If the photograph is registered Young would be eligible for "statutory damages"-- meaning that Fairey would have a lot to lose in court. Young could possibly take action against Evolutionary Media Group as well for helping in the print and distribution process.

Shepard Fairey and Evolutionary Media Group printed over 300,000 posters (probably more) without permission from Jim Young-- assuming our imaginary jury sided with Young-- the story involving the mass printing and distribution of different versions of the poster is well documented online. The business partnership between Shepard Fairey and Evolutionary Media Group is also well documented online. Various quotes from Shepard Fairey, Yosi Sergant, and others would no doubt be heard in this scenario.

In this scenario I don’t know if Jim Young could target the Obama campaign organizers because they did not officially contract Shepard Fairey for the image-- depending on which article you read and at what date it was published. Needless to say, there are conflicting reports about Shepard Fairey‘s unofficial-official connection to the Obama campaign and fundraising. Recent articles state that Shepard Fairey was not contacted directly by the Obama campaign and that his work for the campaign was not “official“.

However, Maureen Callahan of the New York Post reported (on April 24th 2008) that Fairey had stated that he did not want to do something for the Obama campaign “without proper authorization”. Callahan also reported that Fairey worked closely with the Obama campaign communications director Scott Goodstein on the design of the poster.

A Wired article (from September 21st, 2008) quotes Shepard Fairey as saying that he did not want to be an “unwanted endorsement” for the Obama campaign. Thus, he waited for the “unofficial wink and nod to do the image.” which ended up being promoted heavily by the Obama campaign--- I’m sorry folks, that sounds official to me.

Oddly enough, in the same Wired article Fairey does not hide the fact that he drew some inspiration from Alberto Korda’s famous shot of revolutionary Che Guevara for his Obama image--- so why did he not give credit to Jim Young as well? The article goes on to say that Shepard Fairey was eventually contacted by the Obama campaign to create an “officially-approved” version including a campaign approved slogan, ‘Hope’, instead of ‘Progress’.

However, the same portrait, allegedly from Jim Young’s photo-- was used. The article also stated that the campaign desired Fairey to use a "campaign-approved" photo. If the Wired article is correct would that not mean that the Obama campaign is also responsible for the alleged copyright infringement of Jim Young’s photograph-- assuming that he owns the copyright and is willing to defend it? Keep in mind that the Obama campaign earned over $400,000 from Fairey’s Obama themed merchandise. I wonder how much Jim Young earns per year?

There are many contractions concerning stories about Shepard Fairey and his work with the Obama campaign. I’m certain that Michael Cramer’s discover will only add to the chaos. The truth may be forever buried under the rubble of regurgitated articles about Shepard Fairy’s ’Hope’ poster-- which I firmly believe was hyped by stealthy pr tactics instead of a grass roots initiative.

I don’t know if Jim Young owns the copyright to the photo. It may very well be owned by Reuters. It might be open to the public to use. However, what if that is note the case? What if it did not happen to Jim Young and Reuters? What if Shepard Fairey randomly stumbled upon one of your copyright protected images online and “referenced it”? What if he made $400,000 in profit off of the manipulated image? What if the Orphan Works legislation of 2008 had passed and you had lost your right to seek adequate compensation in a court of law? That is what this is about people. I’m certain the family of Felix Rene Mederos Pazos would have an opinion about it.

Update Concerning Shepard Fairey Photograph Controversy:
Apparently the photography issue surrounding Shepard Fairey’s poster ‘Hope’ has been solved again. Earlier reports by Reuters stated that Michael Cramer had discovered the specific photograph that Shepard Fairey had used without permission and without giving credit. Reuters confirmed that the photograph had been taken by one of their veteran photographers, Jim Young.

A new article by TIME has thickened the plot. Michael Scherer reports that the origins of Shepard Fairey’s hope have been traced to a photograph of Obama taken in April of 2006. The photograph was taken by Mannie Garcia-- who at the time worked for the Associated Press as a freelancer. The discovery was made by Tom Gralish-- a Philadelphia Inquirer photographer who was inspired by Michael Cramer’s search for truth. In my opinion, the same scenario that I mentioned concerning Jim Young applies.

Photograph of Obama taken by Mannie Garcia for the Associated Press.

From what I've read it appears that Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.

A comparison of the Obama photograph taken by Jim Young and the Obama photograph taken by Mannie Garcia concerning Shepard Fairey’s ’Hope’.

From what I’ve read it seems Mannie Garcia simply wants to bring issues of appropriation and copyright directly to Shepard Fairey’s attention. However, it should be noted that Mannie Garcia works at the White House for Bloomberg-- so I doubt he would want to press too far into the issue.


http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/found_again_the_poster_source.html
The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.

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Take care, Stay true,

Brian Sherwin

Senior Editor
Myartspace Blog
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New York Art Exchange (NYAXE)

112 comments:

cr8tivef0lk said...

Come on. This is a bit harsh.
Art is about the freedom of creation. It's not about money or recognition. You're overlooking the point. I'm a photographer and would be flattered to have my work used in such a manner. I do this because I LOVE it, not to get paid. Art is to be shared, not sold.

Anonymous said...

How freaking sad. This is one of the most famous artists of today and he has been ripping of work from other people. The total antithesis to what a real artist should be. It makes me want to puke really. No one seems to care either.

Semone

Anonymous said...

Please, please, PLEEEEAAAAASSE stop harping on Shepard Fairey already! There are plenty of other more relevant topics to be discussed.

The general collective opinion of the majority of people regarding Shepard Fairey and his "controversial" approach to making art is: WHO CARES

No one gives a shit about the fact that Fairey (mis)appropriated certain elements from dead Cuban and Soviet poster artists from the past. Those people are dead - what do they care?

You rail against this issue, but I think you'd be VERY surprised to learn just how often artists, illustrators, and designers these days "borrow liberally" from artists, illustrators and designers of the past. Nothing is new anymore. Eventually what's old becomes new and fresh again through new interpretations.

What you (and a few others) are doing here is coming across like the nerdy tattle-tale in the schoolyard - "teacher, teacher, look, Shepard is STEALING!" It makes you look stupid and boring, to be honest. The cool kids don't care, and the cool kids are the future of art.

As for the "copyright infringement" of the photo used in the Hope poster....that's really stretching it. If the photographer is fine with it, it's a non-issue. Looks like you'll jump on any little chance to get Shepard Fairey.

Bobbie Jansen said...

You couldn't be more wrong about this. Talk to Pete Seeger, talk to Bob Dylan, Walt Disney (Ok you cant talk to him). You will find a history of culture developed by people creating work from other peoples work. Taking them, changing them some stylistically to make it their own... This is how culture is made, this has a long history and art would not have developed without it. The intellectual rights are getting so distorted as to threaten the ability for young under financed entities like schools or community theaters to have to stop creating performances, the intellectual rights are being over extended and these entities can not afford the costs to utilize the material. I would submit that this photographer may believe as I do. I also would not mind if someone took part of my work and turned it into another. I do not believe that we can own culture. How does an image of Barack Obama belong to anyone?! Maybe perhaps to Obama himself, but obviously that is not possible.

Scott Moore said...

I think you're making a big deal of nothing. The only way to make derivative works of public officials is to use a photo you find online - period. Most of us can't approach public officials, and if we could, getting a picture good enough to use as reference is almost impossible.

You seem to ignore the fact that public officials and cultural icons belong to all of us, and we should all have some right to fair use and commentary on our society.

We have the hope poster because the photographer was gracious enough to realize there is more to be gained from his photo than just monetary compensation. Art thrives in a free invironment. Society thrives in a free environment. Copyright law needs to strike a balance between free speech and protecting a person's intellectual property, which is not embodied in your dogma.

Balhatain said...

Cr8tivefolk says, “It's not about money or recognition.”. You do know who Shepard Fairey is? If the image was for “everyone” than perhaps it should have been submitted to the masses anonymously. Research the history of this image and the tactics that were used to make sure it landed press and you may end up having a different opinion.

Note that Fairey did not say the image belongs to everyone until these recent issues unfolded. At the same time he has threatened to take legal action against people who create “bootlegs” of the image in order to sell them on Ebay. In other words, in Fairey’s mind it is ok for him to use Young’s work without permission, but you had better not use his work without permission.

Balhatain said...

Anon, Orphan Works legislation is an important topic and it is one that I will continue to “harp” about. Soon enough it will be reintroduced so those who oppose it must be prepared. Shepard Fairey just happens to be an artist who represents the harm current Orphan Works legislation could cause if passed in its current form.

As I made very clear in this article the point is not Jim Young’s reaction. I don’t care if he is “cool with it”. The point is that Shepard Fairey found the image doing a random search and could have ended up doing it to anyone. The point is that if Orphan Works legislation had passed Young would have not been able to defend his work as he can today.

“The general collective opinion of the majority of people regarding Shepard Fairey and his "controversial" approach to making art is: WHO CARES”

That is a generalization and is not exactly true. It is not hard to find people who question his work and practice. The media has not caught on yet-- they are too busy writing about the banner boy for Obama. You will find that most artists DO CARE. Most do not agree with this kind of infringement-- especially if it is a fellow artist who is infringed upon. The visual art community is small compared to the population as a whole. However, that is why we have a system of law in this country.

“No one gives a shit about the fact that Fairey (mis)appropriated certain elements from dead Cuban and Soviet poster artists from the past. Those people are dead - what do they care? “

People who respect the historical aspects of those causes care. The fact that Fairey claims that history as his own without informing people of those specific roots does matter. Many of those posters are in public domain. However, the poster by Rene Mederos was copyrighted. Fairey’s excuse was that he did not know how to contact Mederos-- who had actually been dead for a few years by that time-- because he was in Cuba. So he used the image without permission thinking that no one would find out. He did not mention the influence of Mederos until after being exposed.

“You rail against this issue, but I think you'd be VERY surprised to learn just how often artists, illustrators, and designers these days "borrow liberally" from artists, illustrators and designers of the past. Nothing is new anymore. Eventually what's old becomes new and fresh again through new interpretations.”

“You are missing the point. Currently works are protected up to 70 years or so after an artist dies. After that 70 year point the art is fair game. So be it. The problem is that Shepard Fairey has used protected images by living artists or recently deceased artists without giving them credit. He registers those works and has been known to threaten legal action if someone infringes upon HIS copyright. He takes from all while protecting his own. The hypocrisy is alarming from someone who has fashioned himself as being a “rebel” or “revolutionary“.

You know damn well that if I made a print based off of his work you would be calling me a “copycat” and every other name under the sun.

I think you would be VERY surprised to learn just how many artists are AGAINST that part of Shepard Fairey’s practice. It is not popular to be open about it though-- or to use him as an example. Guess what… I don’t care.

There is a difference between learning from the art of the past and making a print of an image from a book about art history in order to nab an image and call it your own-- all the while hoping no one catches on. That is what Shepard Fairey does. I might add that while an artwork from the past may be in the public domain the photograph of the image in the history book may very well be copyrighted. People often forget that.

“What you (and a few others) are doing here is coming across like the nerdy tattle-tale in the schoolyard - "teacher, teacher, look, Shepard is STEALING!" It makes you look stupid and boring, to be honest. The cool kids don't care, and the cool kids are the future of art.”

I’m a “nerdy tattle-tale“, eh? Keep in mind that I had tried to give Shepard Fairey a chance to speak for himself for over a year. I was given the run around by his assistants and other members of his staff. I came to the conclusion that he dodged me knowing I would ask questions that strike at the core of his practice. I’ve interviewed artists who appropriate and none of them dodged me like that. I even offered Fairey the chance to speak to me directly about these issues in Miami last December. He did not show up. His gallery said he was not in Miami-- yet apparently he was there long enough to do some bombing.

“As for the "copyright infringement" of the photo used in the Hope poster....that's really stretching it. If the photographer is fine with it, it's a non-issue. Looks like you'll jump on any little chance to get Shepard Fairey.”


Read my article again. The focus is not so much on Jim Young. The focus is that it could have happened to anyone. What if the image was not as popular as Hope? What if no one bothered to discover the owner of the photograph? What if the photographer was willing to defend his rights, but never found out about it because no one discovered it? In that case Fairey would have got away with infringement.

One must question how many of Fairey’s works are original images and how many are simply reworked images that are owned by another artist.

Gringo said...

I'm with you Balhatain. Copyright infringers, no matter how popular or "cool" as they may be, deserve to be punished, or at least they should seek to give proper compensation for those he rips off. As the blog post mentions, this image is making lots of money, period. Even if Fairey didn't touch it (which I don't belive is true) I think it sucks that Jim Young (or Manny García in this post: http://pictureyear.blogspot.com/2009/01/mystery-solved-again.html), aren't pursuing an legal action. I understand that they didn't want to hurt the campaign efforts... but he's already in office for Christ sake! He's isn't going anywhere now! That's MONEY that can be in your pockets! & Lots of it! Shepard is having a share of the cake so why can't you have it, since you are the initial inspiration? The Orphan Works gods must be laughing at us. If that thing gets approved, then lets HOPE someone can save is. I would practically have to eliminate all my art from the web. My online portafolio, my blog posts, anything. Or else Shepard Fairey or someone like him, will someday visit it & decide to "appropiate" some of stuff. The Mederos family was right in pursuing legal action against him... even though he's dead. The anonymous who says that "the artists don't care because they are dead" is just stupid. It's a childish argument at the best. I'm pretty sure the teacher (in the example anonymous mentioned) if told that one of his students was stealing, he/she would at least investigate the accusations, because in the end, stealing is wrong, no matter how you look at it.

Balhatain said...

Scott Moore said, “I think you're making a big deal of nothing. The only way to make derivative works of public officials is to use a photo you find online - period. Most of us can't approach public officials, and if we could, getting a picture good enough to use as reference is almost impossible.”

Scott, I made the legal implication of derivative works very clear. You can use a photo to draw a portrait of a public official. There is a difference between drawing or painting the image of a public official-- that involves unique marks.

A person with decent skill can look at many images of the person and then draw the portrait without looking at the photographs. The problem with Fairey and this situation is that he simply printed the image off and added to it.

What if it was not a photograph taking by a photographer from Reuters and was instead taken by another artist for his or her own project? All Fairey did print it, add it, was flip the direction, and then did his “own thing”.

“You seem to ignore the fact that public officials and cultural icons belong to all of us, and we should all have some right to fair use and commentary on our society.”

YOU seem to ignore that photographers have rights to their images just as Fairey has rights. I bet you that if I printed off ‘Hope’ and changed it so that Obama’s head is upside down I would eventually receive a cease and desist letter from Obey. Artists should comment on society-- most do. However, most don’t do it by exploiting the works of others.

“We have the hope poster because the photographer was gracious enough to realize there is more to be gained from his photo than just monetary compensation. Art thrives in a free invironment. Society thrives in a free environment. Copyright law needs to strike a balance between free speech and protecting a person's intellectual property, which is not embodied in your dogma.”

Actually the photographer only recently found out that his photograph was used. The issue is not about how he feels about the use. What if it had been an image by someone who did not want their photographer used in that way? He only found out because a blogger went great lengths to discover the specific image that was used based on the fact that Shepard Fairey had stated that he used an image he found doing a random search online.

Society thrives in a free environment, but laws that protect artists and other creators exist because their work and success depends on it. Shepard Fairey understands this-- he has taken action to defend his work when others have used it in ways that infringe on his copyright. If he declared his work open to anyone your view would be justified. He does not.

Balhatain said...

Bobbie, you can paint an image of Mickey Mouse holding a syringe and pack of condoms because it would be considered parody. Mickey Mouse is a character known throughout the world. However, you can’t simply copy my parody of Mickey Mouse without infringing on my copyright. That is how copyright works. It would also depend on the jury.

Copyright protection of creative works is a relatively new concept. So don’t use the Picasso defense-- his words are taken out of context in the first place. If it were not for copyright and patents the culture you embrace today would have never existed.

You said, “The intellectual rights are getting so distorted as to threaten the ability for young under financed entities like schools or community theaters to have to stop creating performances, the intellectual rights are being over extended and these entities can not afford the costs to utilize the material.”

True, there does need to be something done about orphan works, but it should not be done in a way that will prevent living artists from defending their creative works adequately.

If the 2008 legislation had passed it would have been possible for an individual or corporation to mass produce works that they “thought” were orphaned and the owner, upon finding out, would have been practically defenseless in preventing it.

You said, “I also would not mind if someone took part of my work and turned it into another. I do not believe that we can own culture.”

With current copyright law you have the right to allow them if you wish. You also have the right to defend your work and how it is used if needed. How can you attack that? If specific items reflecting culture can’t be owned then I would expect that you would also agree that everyone should get other aspects of culture for free.

Your reasoning suggests that nothing should have a price tag on it. In your world everyone would get a new computer, clothing, and other items praised by popular culture for free. In your world movies would be free to watch, phone service would be free, everything would be free. Your world would be more broke than our current economic situation. Your world would fail.

Copyright and patents are vitality. They sustain a nation. They allow you to live in a world that allows individuals to pursue their creativity. They allow individuals to, dare I say it, make a living off of what they do. Shepard Fairey understands this with his own work. If you have not noticed there are probably more artists today based on percent of population than their has ever been. Copyright protection secures that.It feeds that.

Balhatain said...

Gringo said, “I'm with you Balhatain. Copyright infringers, no matter how popular or "cool" as they may be, deserve to be punished, or at least they should seek to give proper compensation for those he rips off.”

Popularity is the only reason why people are defending Shepard Fairey. If the situation was different and I had posted about someone ripping off works on Facebook or Myspace these other guys would most likely agree with what I’m saying. We can’t decide who has to follow the law based on how “cool” or popular they are-- you are dead on with that.

Gringo said, “Even if Fairey didn't touch it (which I don't belive is true) I think it sucks that Jim Young (or Manny García in this post: http://pictureyear.blogspot.com/2009/01/mystery-solved-again.html), aren't pursuing an legal action.”

Someday he will do this to someone who does not care who he, how many corporations he is involved with, or which side of the political aisle he is on. With current copyright laws in place he could end up broke.

What is sad is that the organizations and individual artists who have banded together against orphan works legislation have not spotlighted artists like Shepard Fairey who will no doubt take advantage of the bills if they end up passed in their current form. This is no time to make friends.

It is time to give hard, factual examples of artists who are already abusing the rights of other artists. It is time to take the gloves off and make our concerns known with direct examples of how protected works are already being taken advantage of.

Gringo said, “I understand that they didn't want to hurt the campaign efforts... but he's already in office for Christ sake! He's isn't going anywhere now! That's MONEY that can be in your pockets! & Lots of it! Shepard is having a share of the cake so why can't you have it, since you are the initial inspiration? The Orphan Works gods must be laughing at us.”

My sources inform me that some of the major contributors to the Obama campaign were also supporters of the 2008 orphan works legislation.

I also know that many artists have pleaded for Obama to make a stance on orphan works legislation or to at least make his opinion on the matter known. Even some of the artists involved with the Obama art “movement” had asked on the Obama network. There questions went unanswered.

Based on Obama’s actions so far I can only assume that maybe, just maybe he is not the champion that so many artists believe him to be. If he was he would have been wary of being associated with Shepard Fairey officially or unofficially.

Gringo said, “If that thing gets approved, then lets HOPE someone can save is. I would practically have to eliminate all my art from the web. My online portafolio, my blog posts, anything. Or else Shepard Fairey or someone like him, will someday visit it & decide to "appropiate" some of stuff.”

Unfortunately some people feel that if it passes there will be a new renaissance in art and that culture would be strengthened. Your concern, like the concerns of so many others, shows that it would do the exact opposite.

Artists and other creators would once again be isolated. If passed, only those with corporate backing would dare leave the studio.

Gringo said, “The Mederos family was right in pursuing legal action against him... even though he's dead. The anonymous who says that "the artists don't care because they are dead" is just stupid.”

From what I’ve read they settled out of court and only received $1,000. However, the shirt with Fairy’s ’Cuban Rider’ image was pulled from production. Fairey never mentioned Mederos until after he was exposed.

When asked about it in interviews he has been quick to mention the charity he has done-- thus using the good he has done as a shield to justify his twisted ethics.

Gringo said, “It's a childish argument at the best. I'm pretty sure the teacher (in the example anonymous mentioned) if told that one of his students was stealing, he/she would at least investigate the accusations, because in the end, stealing is wrong, no matter how you look at it.”

Good point.

Becky said...

Wow incredible! This is exactly why people need to be educated on what they can and can not do in order to protect themselves from lawsuits. One of my favorite books, covering almost every issue dealing with copyright laws, is Michael C. Donaldson's book titled, "Clearance and Copyright. " Even though the book is mainly tailored to independent filmmakers, there is a lot of useful information for everyone.

Anonymous said...

Part of the definition of infringe is “obsolete” which means “Outmoded in design, style, or construction”. Infringing on copyright is not progress in art. It is a step back. This artist is not creating anything new. He is spitting out diluted images from the past with no historical connection.

SorD said...

This guy was never poor. His doctor daddy bailed him out of jail when he was younger. He was from a good home. He was a wannabe gutter punk when he was 15 and he is a still a con artist today. Classic example of someone running from a wealthy reality. He was never poor. If he had it hard it is because he made things hard knowing daddy was always there to slap him some green. He hides the dollar signs of his past and has built a career on playing creative pauper.

-SorD-

JafaBrit's Art said...

My first thought to your comment cr8ivef0lk is that if art is to be shared and not sold then Fairey should not be making a profit either, especially from the work of others.

I like the images Fairey did, but I agree with Balhatain. Artists are trying to earn a living and it is they who should profit from their work/and get credit for it.

josephbolstad said...

Brian, In your post on the 16-year old artist who was threatened with legal action from Damien Hirst after the boy used an image of Damien Hirst's diamond skull for a collage, you rushed to the boy's defense. So why are you taking the opposite stance here?
I'm not a Fairey fan, but I have to agree with others that this is a rather weak case against him. It would be one thing if Fairey reprinted the photograph exactly as it had appeared, but his illustration is entirely fair use in my mind. The drastically altered shadows, the re-envisioned color and contour... I look at the image comparison you've posted and I think they are quite far apart. Fairey needed someplace to start from, so picked a shot of Obama's face and reworked it.
As far as I know, Fairey's legal threats to people stealing his design stem from the fact that what the copiers are making are nearly identical -- the intent is to cop, not create. Whether or not taking legal actions against these counterfeiters is truly in line with Fairey's "revolutionary" goals is a different story, but to try to compare these two cases is silly. There's a web app out there now that lets you make a HOPE version of your own photos. Should that be considered copyright violation too?

Balhatain said...

Joseph, I did not rush to defend Cartrain. I pointed about the hypocrisy of Damien Hirst. After all, he has infringed on copyrights himself. I made a point of Cartrain’s age because I consider him young. Damien Hirst and Shepard Fairey have both studied at art schools and I believe both have a degree in art-- they should know right from wrong when it comes to infringement. They both jump to defend their copyright. Which is fine--- but stinks of hypocrisy.

Lets look at some excerpts of the Damien Hirst / Cartrain issue that I posted about.

I said, “People are defending the work of Cartrain by stating that appropriation is not theft. However, appropriation can be considered theft if the work is protected by copyright. It really boils down to a fine line decided by judge or jury. True, art schools and law have very different opinions about the implications of appropriation. In the case of Hirst’s work-- which is known worldwide-- one could make a case for parody within the protections of appropriation.”

And, “Damien Hirst is not the only internationally renowned artist waving the legal stick around these days. Shepard Fairey, the visual spearhead behind Barack Obama’s campaign, recently stated that he will take legal action against “bootleggers” who have “hijacked” his “style”. That said, I find it ironic that Damien Hirst would be upset over someone infringing upon his copyright considering that he has infringed upon the copyright of others. Damien Hirst and Shepard Fairey have two things in common-- they have both settled out of court due to infringing on the copyright of others and they have both threatened legal action against artists who have violated their protected works. The saying, “you reap what you sow”, comes to mind. Did I mention that Cartrain is 16 years old? ‘For the Love of God’-- Indeed.”

As you can see I did not rush to the Cartrain’s defense. I’m not taking the opposite stance here. However, I don’t think that Cartrain did anything illegal-- he made a parody of a work of art that is world the known over and is associated with decadence and what some people view as the ruin of the art world. Thus, his work could easily be defended as social parody and commentary concerning Hirst and his impact on the art world.

You said, “I'm not a Fairey fan, but I have to agree with others that this is a rather weak case against him. It would be one thing if Fairey reprinted the photograph exactly as it had appeared, but his illustration is entirely fair use in my mind. The drastically altered shadows, the re-envisioned color and contour... I look at the image comparison you've posted and I think they are quite far apart. Fairey needed someplace to start from, so picked a shot of Obama's face and reworked it.”

I think you do not realize how Shepard Fairey works. He will often make a print of an image and work upon it. He did that with the image by Mederos as well-- that image, aside from when it was originally published, only appears in two or three books about revolutionary art. That time he was exposed by an art historian.

Obviously there is something to this Obama photograph story because I read something about him not being able to use the image during the inauguration due to pending legal issues over the Hope image. Which is probably why he has been saying that the image “belongs to everyone” every chance he gets in the last few days. If it were to end up in court Fairey would most likely play the role of martyr.

The point is that he found the image randomly online and used it without asking permission. The photographer may not be an “artist” but he still has the same rights concerning copyright. Fairey could have at least gave some credit where credit is do.

The point is that it could have been an image taken by anyone and he would have still used it. It could have been part of another artists project and he would have still used it. Photographs enjoy the same copyright protection as an original painting. Rules do apply when working with said images.

The irony is that Fairey has threatened to take legal action against people who work directly from ‘Hope’. In other words, he wants you and everyone else to obey his copyright. What he does not understand is that the image is now “iconic”-- just like Mickey Mouse.

So technically an artist could print the image off, add some things, and call it his or her own-- using parody and social commentary about ‘Hope’, Shepard Fairey’ and its impact on culture as a defense. Again, it would be up to a jury.

However, the fact that the image has been reported on dozens of times by major news sources proclaiming Fairey as the most influential street artist in the United States would not help Fairey in that case. Both Shepard Fairey and the ‘Hope’ poster are world renowned.

Concerning Jim Young, the photographer, the case is a bit different. Obama is known the world over, but that specific photograph is not. You don’t look at it and say to yourself, “My word… that is a Jim Young!” nor is he a world renowned photographer. So it would be hard for Shepard Fairey to say that he was doing a parody of Young’ specific photograph of Obama or that he was making a social comment about it.

In order for you to use that as a defense the specific image would almost have to be famous in and of itself. Now that the story has broke and it is being documented by news source after new source one could probably get away with doing a parody of it now. It almost has to be a household name. Again, a jury would decide.

You said, “As far as I know, Fairey's legal threats to people stealing his design stem from the fact that what the copiers are making are nearly identical -- the intent is to cop, not create.”

He has stated that he does not like people to make personal profit off of the “bootleg” or “knock-off” images. He has also mentioned that it is wrong for people to exploit the image for profit because of the meaning behind ‘Hope’ and what it has meant to people in respect to Obama and the historic election.

However, that is very hypocritical coming from him considering that he has infringed on works that had great meaning to the individuals who created it. True, many of the works he has “referenced” are in public domain. However, others are still protected by copyright and were created by artists who are not household names-- not known widely the world over.

You said, “There's a web app out there now that lets you make a HOPE version of your own photos. Should that be considered copyright violation too?”

That would be considered parody due to the fame of ‘Hope‘ and Shepard Fairey. I’ll have to check, but I think Shepard Fairey either gave them permission or is directly associated with it in the first place.

You have to keep in mind that Fairey has said himself that sometimes he goes too far with "referencing" the works of others. In one interview he mentions that when he is caught he hopes it is a good "bust" instead of a bad "bust"-- which translates to settling out of court or legal action.

He has also been quick to say that most artists, upon finding out that he "referenced" them, are "cool" with it or end up working on a project with him.

Micke said...

Not once was Andy Warhol mentioned in this article a person that used tons of images taken from photographers, labels, cinema and logos. Shep is small beans compared to the late legendary Warhol.

Lets not be hypocrites and bash the urban artist while we glamorize the fine artist.

Balhatain said...

Micke said, "Not once was Andy Warhol mentioned in this article a person that used tons of images taken from photographers, labels, cinema and logos. Shep is small beans compared to the late legendary Warhol."

My thoughts on Damien Hirst entered the debate if you have not noticed. I've mentioned the infringement of Damien Hirst, Jeff Koons, and Andy Warhol in the past-- as well as legal issues surrounding their infringement. With all due respect this article is about Shepard Fairey. Must I mention every artist who has ever infringed if I mention that aspect of his work?

Micke said, "Lets not be hypocrites and bash the urban artist while we glamorize the fine artist."

You must be new to this blog. True, I have interviewed Michael Craig-Martin, Vito Acconci, Sylvia Sleigh Julian Stanczak, Bo Bartlett and others associated with 'fine art', but I have also interviewed Mark Jenkins, BASK, Anthony Lister, Aidan Hughes and others associated with urban and street art. I've also interviewed Mark Ryden, Sas Christian, Travis Louie and others associated with Pop Surrealism and underground art.

Anonymous said...

I'm in two minds, being an artist myself. Yes, copyright infringement is a problem, but I wonder whether press photos should fit in with this, as someone said, it's not like the average artist could just pop into the White House and ask President Obama for a photo! Also, I really, really, REALLY doubt that there is ANY artist who could knock up a perfect likeness after just looking at a bunch of photos, except perhaps someone who does political caricatures and creates their own 'version' of what a person looks like. You need a reference WHILE you're working...try drawing someone you've known for 20 years without having them in front of you!

Also, it seems the photographer you mention is probably NOT the creator of the photo Fairey used, the link within your article takes you to further links, including this one from Flickr.

http://www.flickr.com/photos/25105505@N07/3212113517/

And, as someone commented there, a portrait artist would be unlikely to flip a photo to create a new image, because the likeness is compromised. That may strengthen a case AGAINST Fairey, but if you look at the incredible similarity between the two photos, and if you consider that there may be many photos taken by many photographers all showing President Obama in identical poses, the issue of who owns the image starts to get very fuzzy.

Ryan said...

Fairey is a hack. It's truly sad that some in the 'industry' are promoting and defending this ridiculously UNORIGINAL 'artist'. Using others images as reference is one thing...blatently utilizing identical material is another.

Fairey is a plagarist and should be shunned! Warhol too.

Dr.B said...

"You can use a photo to draw a portrait of a public official. There is a difference between drawing or painting the image of a public official-- that involves unique marks.

A person with decent skill can look at many images of the person and then draw the portrait without looking at the photographs.The problem with Fairey and this situation is that he simply printed the image off and added to it."

Your distinction between traditional hand-made images and more contemporary graphic techniques of photo image manipulation is dangerously conservative and restrictive. The Fairey piece is patently not simply printed off and added to. Any medium available to an artist to use publically accessible images deserves equal rights. Yes, there is a fine line between straight-forward reproduction and reinterpretation, but it is important to always err on the side of permissiveness and inclusion. All restrictions on artistic license are dangerous. To defend economic gain for copyright holders to the potential detriment
of art-making is risky and potentially damaging.

Anonymous said...

I just can't believe this!!! First of all, I think the person looking for the original picture is jalous, why else put your time in something like this!? What's the point???

I'm an artist myself and use pictures from the media for my paintings. I do this because I can't be in all the places I want to make works about.

In history people have always used images of other people to work with. Don't be jalous if somebody has succes with it even if you don't.

Freedom is what we need, this is the opposite.

Anonymous said...

as long as he changes it three times beyond the original it belongs to him. You are wasting your time and everyone elses. besides it seems to me that "internet" art is all about appropriation and dissemination so, really, what is your problem?
go paint a picture or something

Ben Goldman said...

Hi Brian,

This is a complicated issue, but you never say how you think the legal rights in this case would change under the Orphan Works Act. I don't think it legislates that any image posted on the internet becomes fair game for any use whatsoever, does it? Could you summarize how Young and Fairey's presumed rights would change if this bill passes? Thanks!

Anonymous said...

Shepard's style is nothing more than a photoshop filter. Any 4 year old can do it, hence the hope poster machine. He's the Milli Vanilli of the art and design world.

In another era he would have had the talent to draw it by hand, perhaps using a bit of tracing paper but leaving a human personal mark somewhere.

If he were an illustration student of mine he'd get an F for lack of imagination in the delivery at best, expulsion from the program for outright plagiarism at worst.

Warhol did get busted, fyi. His famous flower poster was spotted by photographer Patricia Caulfield who promptly sued. She made out quite well. Didn't think it was cool or offer to work with him.

The worship of this punk is simply a further indication of the sinking of standards in my industry where every 14 year old with Photoshop decides they want to be a designer or a painter.

Make sure you take a look at the documentation here: www.art-for-a-change.com/Obey/index.htm

I've been in touch with the writer who states that every Fairey worshiper out there has bombarded him with hate mail.

Oh well, a lot of the kids digging Fairey thought the Backstreet Boys were great music when they were kids. Maybe their sense of visual taste will improve as well.

As important as the legal issues at stake is the grander cultural question of our lack of standards in the visual arena.

The president of the AIGA stated it best when he said that the computer has raised the bar of mediocrity.

In the meantime I'm waiting for the day when Fairey crosses the wrong artist, photographer, or copyright owner. A major case will ensue and in the end he'll be about as cool as Mark Kostabi.

wayno said...

Although this is just a snap shot taken on the fly and hardly worthy of the term "art" (sorry Jim, it's no "Cartier-Bresson"), it sets a dangerous precedent if allowed to be copied in any form. What if it were a formal portrait with painstaking setup and lighting, say a Karsh or an Avedon?? Unfortunately, in today's world, there can't be any grey area.

Marv said...

Picasso copied, stole, and appropriated countless images. There's a great book out that shows the photos and sources that he clearly stole, next to his "masterpieces." I'm not putting down Picasso, but am trying to make the point that artists have always worked this way.

Balhatain said...

Dr. B, I’m not against people using relatively new methods of creating art nor am I “conservative and restrictive” about techniques. Anyone who has read my interview series or has followed this blog realizes that.

The point is that Shepard Fairey has a history of printing off the work of others in order to use it directly within his work--- that photo could have been by anyone for all he cares.

Balhatain said...

Anon, so in your view freedom means that all art should be open and that anyone should be allowed to use works with total disregard for copyright? You have the right to your opinion, but until the laws change they must be adhered to.

I don’t think the blogger that made this discovery did it out of jealousy. I think he did it because the media has done a poor job of reporting other than strengthening hype.

Shepard Fairey’s art can be interesting, but I think it is dangerous to suggest that it is acceptable for him to infringe upon works just because he has been successful. I also think it is dangerous to suggest that anyone who questions his work is jealous.

When artists that are not well-known do this sort of thing they are shunned on art forums and other places of debate-- why should Shepard Fairey be any different?

Balhatain said...

Anon said, “as long as he changes it three times beyond the original it belongs to him.”.

You are wrong. There is no specific percentage concerning how much the image needs to be changed. That is, as an attorney friend of mine calls it, an urban legend.

Balhatain said...

Ben, if the current form of the orphan works legislation were to pass an artist would no longer be able to go after the same statutory damages he or she could seek today from an individual or corporation that infringes.

If it were passed Artist A could infringe on Artist B, make millions off of the slightly altered art of Artist B, and once discovered Artist B would have no where near the protection that he or she enjoys today. If it is ever passed-- in its current form-- it would limit an artists ability to protect his or her work.

It would basically be open season for mass infringement. Individuals and corporations would infringe knowing that at most they would lose a few thousand if a case were to go to court. Don’t take my word for it-- take the word of over 60 arts organizations that have been fighting this type of legislation head on.

As you can see by the comments many feel that art should be free and that artists should not have rights. The only problem with that attitude is that many artists make a living or at least part of their living with their art-- including Shepard Fairey.

Balhatain said...

Marv, I’m very aware of art history and Picasso. As I’ve stated before, copyright protection is a relatively new issue. Just because Picasso “copied, stole, and appropriated countless images” does not mean that artists today can without legal repercussions.

Dr.B said...

With apologies for not following your blog, I was specifically referring to your condoning "unique marks" as legitimate, versus "printing off" as plagiaristic. Wouldn't that logic de-legitimize Rauschenberg, for example? Surely he didn't obtain release forms for his transfers. I don't see the point in using the Fairey image, which is so obviously original and effective in its result, as an example of copy-right infringement. News photos, and nowadays internet images, have always been legitimate artistic fodder.

Anonymous said...

here's the real photo...

http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/new_obamashepard_fairey_source_1.html


by Mannie Garcia... i hope he goes after Fairey. it's time for this new generation of "artists" to step away from the computer and get in front of a real easel!

Balhatain said...

The article has been updated to reflect recent news about this story. My opinions are the same even if the names and specific photograph has changed. What I stated applies to Mannie Garcia just as much as it did with Jim Young.

Questions remain unanswered concerning the art of Shepard Fairey. What if 'Hope' was not as popular as it is? What if individuals had not made this discovery? How many other works by Shepard Fairey have roots in protected images? Should other images by Shepard Fairey be examined further? Is this the perfect time to discuss artist rights and copyright law in the mainstream media?

Anonymous said...

If he did that to my work I would take him for everything he has. He is not a poor artist with his freedom of speech being trampled. He is a repeat infringer who exploits images by lesser known painters and poster makers. He is a professional artist who owns a corporation and has been caught red handed. Obama claims that he will go after corrupt business so he should start here even if it is close to home. This is no different than a car factory stealing a blueprint from another factory.

One said...

Shepard Fairey did not just draw or paint while looking at the photograph. He scans images directly from books and photographs. There is why he got busted for the Mederos poster. He also makes Xerox copies that are used directly in his art. He uses the prints in a collage. The art people who support him would not like it if he printed off an image of their work for his work. Reference material is material that you reference. This artist is using the material as part of the art itself. It is not just a reference. Who knows how many of his works are legit.

justin said...

Fairey is joke/pretender. Stop talking about him and watch him fade away.

angelawaite said...

I'm amazed at the number of comments that justify the stealing of someone else's work. If this was any other industry other than art people would be all over it as theft. cr8tivef0lk said art is about freedom of creation. True but don't be naive. If you have the luxury of doing it because you love it, not for money, then this debate is irrelevant for you. I assume you aren't doing art for a living. But some people are doing this for love AND money (for food, shelter, and costs of living). And if you steal their work to create another piece, its theft. If it has no value then why didn't Fairey go out and try to shoot the picture himself? Oh ya, because it takes work to go out and get the right photo.

V said...

This is a good lesson on fame. The image that made Shepard Fairey a household name might be the image that destroys his positive image. His success only means that people will be looking at his work with a scope from this point on to find out if it is legit or not.

The lesson is that cheating can help you get rich quick and become an artstar but it can also mark you for life. There will always be people who doubt Shepard Fairey now. He will have to watch what he does or end being taken for a legal ride. Learning how to draw would be a start.

Balhatain said...

I moderate this blog for a reason. Before commenting know that I will not tolerate personal threats against Shepard Fairey or his family. This is not a debate about his family life or personal life. Don’t waste your time or my time. Stay on topic.

jeff said...

I don't think it can be said without a doubt that the original photo was taken by Anderson. Anderson himself could not identify it and even took a few photos of the poster during the campaign. What makes some photographers think they have the right to use another person's artwork for their photos, but complain when they believe someone might have used something of theirs?

Anonymous said...

I think Anderson has been ruled out.It looks like the Mannie Garcia photo is the origin of the poster. The press can take pictures of anything they want because they are reporting. But that does not mean people can use their photographs freely. If that was the case you could use images that involve works by artists covered by newspapers and art magazines. It should not matter if the photographer is an artist or a reporter. Copyright is copyright and creative and non-creative people share the same protection.

Anonymous said...

Fairey clearly referenced the photograph however, the shadow and lighting contrasts are very much his own(of course the color choice and illustrative style are his own). Another difference is how they read; the photo is a candid snapshot while the illustration is a dramatic portrait. Fairey's approach in creating his image is very similar to looking at a photo and creating a drawing or painting from it. The fact is some people have a problem with the medium utilized: computer software. It's okay if you use pencil, ink, paint or charcoal but it is not okay to use digital software. That's if he did indeed utilize software throughout the entire process. We would have to ask Fairey himself.

Does one actually expect Obama to be available to pose for Fairey while campaigning? Should we abolish referencing live models as well, in order to protect the personal image of the model? And why can't people admit to their prejudice against digital tools used in creating artwork?


Simply put, Fairey referenced a photograph to create his own illustrative piece. He did not infringe on copyright. I don't see anybody concerned because famous artists such as Warhol and Jasper Johns incorporated actual photographs in their work. Oh, wait, they used "acceptable" media, inks and paint.

Anonymous said...

I think if photography was just now being invented, lawyers would claim that it is nothing but the theft of images.

Anonymous said...

This story is a sign of our times. I read this on Mannie Garcia’s website, “The Danziger Gallery which represents the artistic works of Mr. Fairey contacted me on the 21st of January 2009 to inform me that my photograph was in fact the basis for the artwork that has become better know now as the “HOPE” and “PROGRESS” posters.” There is nothing on the Obeygiant.com website about this. Shepard often responds to criticism like this but there is nothing there. He has never mentioned your observations either but has attacked others who did not make it as clear as you. Maybe he does not want to point fans to your lengthy critiques of his practice? Another blog mentioned that team Obey rushes to settle out of court when these issues pop up and that they hand out trivial sums of money to silence victims.

Balhatain said...

Anon said, “Fairey clearly referenced the photograph”
He did more than just “reference”.

He scanned it.

Anon said, “the shadow and lighting contrasts are very much his own(of course the color choice and illustrative style are his own).”

I don’t think anyone is saying they are not-- though some would debate that his “style“ is not all that original. The issue is the use of the photograph itself-- used directly within the work. Used without gaining permission or giving credit to the photographer. Apparently a gallery representing Fairey contacted Garcia to acknowledge that his photograph was the photograph used.

Anon said, “Another difference is how they read; the photo is a candid snapshot while the illustration is a dramatic portrait.”

Apples and oranges my friend. So if the image was a painting by an artist and Fairey used it in the same way you would say it is acceptable because Fairey’s image is more dramatic? That is the same type of talk coming from people who think that Fairey’s use of the Mederos print was acceptable because Fairey “made it better”. Copyright is not dictated by the skill of the artist. There is nothing in the law that says it is ok to use the work of others if you do it ‘better’.

Anon said, “Fairey's approach in creating his image is very similar to looking at a photo and creating a drawing or painting from it.”

This is not a case of “looking at a photo”. This is a case of scanning the photo in order to use it directly.

Anon said, “The fact is some people have a problem with the medium utilized: computer software. It's okay if you use pencil, ink, paint or charcoal but it is not okay to use digital software.”

And, “why can't people admit to their prejudice against digital tools used in creating artwork?”


By implication you suggest that I have an issue with people who use non-traditional mediums. Again, I’ve interviewed hundreds of artists-- some work with traditional mediums while others work with computer based art. Some combine the two.

You are the second person to try and turn this debate into an issue about ‘elitism’ in the art community-- and to suggest that I have elitist views about art. That simply is not the case. The 'us versus them' battle cry will not work here. For example, readers of this blog know that I’ve made a hard stance against the Art Renewal Center and their opinions of what art should be-- ARC is about as ‘elite’ as you can get.

Anon said, “That's if he did indeed utilize software throughout the entire process. We would have to ask Fairey himself.”

I think most of us would like it if Shepard Fairey would talk more about his process and the “references” he uses. I think most of us would like to know why he uses specific images instead of just that they are “cool”. Some of us would like to know the history that is reflected in his work.

Unfortunately when he is asked about specific “references” he goes into defense mode-- based on the interviews I’ve read. He knows how to contact me if he desires to answer questions about these issues. I’m in the process of interviewing one of his assistants at this time.

Anon said, “Simply put, Fairey referenced a photograph to create his own illustrative piece. He did not infringe on copyright.”

I can’t agree with you. I’ve spoken with three attorneys who focus on copyright and art about this issue. All three have made it clear that it looks like Fairey is in the wrong and that past allegations and settlements don‘t help his case any. All three stated that it would be up to a jury to decide though. One thing is for certain-- most people do not have a working knowledge of art law.

Anon said, “I don't see anybody concerned because famous artists such as Warhol and Jasper Johns incorporated actual photographs in their work. Oh, wait, they used "acceptable" media, inks and paint.””

I’ve mentioned Warhol’s copyright issues on this blog before. I’ve also mentioned copyright infringement involving Jeff Koons and Damien Hirst on this blog. This has been brought up in the comments already.

Again, why should I mention those specific cases with this article when I did not mention Shepard Fairey when mentioning them?

Let me ask you this-- If I had wrote about an artist using Fairey's 'Hope' with a different 'style' would you have defended the artist or would you have attacked the artist for not being original?

Vote for Orr said...

Anyone remember Baxter Orr and the cease and desist letter he received from Obey in early 2008? How is Fairey referencing this photographer any different? Fairey just does not like the shoe being on the other foot! Orr used the Obey Giant face and changed it by covering it with a SARS mask. Fairey responded by calling Orr a parasite and mimic. He also sent his legal team after Orr. Fairey does allow people to make parodies of his work but goes after them if they start to make any real profit from it. He also admits that he steals from copyrighted work but he stops using it if the person finds out and demands him to stop. That is straight from his mouth so I how can you say that he does not infringe of copyrighted images? You can find this on the Austin Chronicle website.

Anonymous said...

Public figures have a legal right to control how their images are used when it comes to merchandise that is distributed. If this information is factual Obama should prevent Obey and other companies from selling merchandise involving the infringed photograph. If he does not it will send a message that he does not support copyright. If that happens the art world will come down from its Obama high and to the realization that demanding an official arts position from Obama will be the biggest mistake they have ever made.

Wizard Aura said...

C'mon dude, really? The same logic that allows Shepard Fairey to be sued for using a photo applies just as much to the photographer taking a photo of Obama. Should Obama sue the photographer for using his likeness? Actually, Should Obama's parents sue the photographer for photographing what they have created? No Way! I'm sure you'd agree that is completely absurd. If I paint a picture of a tree do I owe mother earth anything? No, that's absurd too...

Had Mr. Fairey used the original photo, untouched, and simply added the word "Hope," that would be one thing, but he did not do that. What he did was take an image and add his own interpretation. If it were a complete rip-off, then why all the confusion about who actually took the original photo? You couldn't tell that the first photo was the wrong one and, neither could the photographer who it as assumed took the photo, so its quite clear from that that the image is not the same as the photo.

What Mr. Fairey did do was take an image and appropriate it to make a much more powerful and striking image. If all he had done was add the word "Hope" to the photo no one would have cared because no one would have paid any attention to it because it would have been lame. That would be using the image directly. It would have had none of the addition of Fairey's artistry which was the thing that made the image so powerful in the first place. While it is clear that the poster came from the photo, Shepard Fairey completely changed the nature and understanding of the image. That fact alone makes it a completely different image. He turned a "routine press photo" which really held no meaning to anyone, into something meaningful to an entire nation. That is not ripping someone off, that is usually, when applied to things not art, what is called progress.

Balhatain said...

Anon said, “Public figures have a legal right to control how their images are used when it comes to merchandise that is distributed.“

I don’t think Obama could sue anyone for using his likeness because it would be considered parody or social commentary given his position and the influence he has had. Look how long SNL has been on. Look at MAD magazine.

Wizard Aura said, “Had Mr. Fairey used the original photo, untouched, and simply added the word "Hope," that would be one thing, but he did not do that. What he did was take an image and add his own interpretation.”

The idea that a certain percentage must be used in order for it to be infringement is an urban legend. The point is that he could have done this to anyone. He has done this to artists. This time it was a press photograph-- next time it could be a work by another artist.

Wizard Aura said, “If it were a complete rip-off, then why all the confusion about who actually took the original photo? You couldn't tell that the first photo was the wrong one and, neither could the photographer who it as assumed took the photo, so its quite clear from that that the image is not the same as the photo”

According to Garcia’s website the gallery representing Shepard Fairey has acknowledged that his photograph was the image that Fairey used. Fairey has said that he did not know who took the photograph and that it was found randomly. Thus, it is strange that his gallery would know the specific image that was used-- unless Fairey knew all along.

The person who made the Garcia discovery was inspired by the blogger who thought he had solved the puzzle with the Jim Young image. Again, Fairey admits that he used a photograph directly within the work. Credit should be given where credit is due.

The question remains, what if this had been an image that another artist created? What if Fairey had printed off a painting of Obama by another artist? Would you think differently in that scenario?

Wizard Aura said, “While it is clear that the poster came from the photo, Shepard Fairey completely changed the nature and understanding of the image. That fact alone makes it a completely different image.”

Not according to copyright law. If that was the case Fairey should have no problem with people adding a few things to his images for profit. Right? Why don’t you do that and see how it turns out. :)

Wizard Aura said, “He turned a "routine press photo" which really held no meaning to anyone, into something meaningful to an entire nation.”

A work does not have to be creative or have meaning to have protection by copyright. You are viewing copyright on emotive terms when you should be viewing it rationally.

Wizard Aura said, “That is not ripping someone off, that is usually, when applied to things not art, what is called progress.”

Look up the definition of infringement. It is not progress.

Balhatain said...

Something tells me that opinions would be different if this had involved a different artist, a different candidate, and the photographer. There is a political factor to this story-- and to why some people are defending Fairey. had the roles been reversed the media would be all over this.

Nate Williams said...

its interesting to think about what is okay and what is considered a rip off

shepard scanned the image .. but someone like James Jean could draw the image exactly the way it looks .. the end results would be the same but would people be upset with this was hand drawn?

Mark Davis said...

Mr. Fairey is trying to be original and clever, but had someone without the PR money-machine behind them done this, nobody would have noticed. I agree with your assessment that stealing is stealing. Period. To alter other artist's work for personal profit is unimaginative and should be unprofitable. I question why Mr. Fairey didn't just shoot hundreds of images of President Obama on his TV screen, then utilize one of those. Then again, Angelawaite covered that- too much work. And Mr. Fairey will never have to really work.
And to all the trust-fund artists that think art should be freely shared, and not for money, please send me three of your best pieces at no cost. I adorn my walls with other peoples stuff because I admire it. I won't copy it, I won't steal it, I won't imitate it. I'll just look at it.
Has anyone considered this? If the orphan work legislation passes, I think it's a pandoras box they're opening. I have a lot of project concepts that would utilize major corporate logos and icons in less than flattering ways. Given the opportunity to do this without being legally crucified would green light a lot of artwork that would keep me in the headlines for much longer than the 15 months of fame a lawsuit would afford me.
Be careful what you wish for. You might just get it.

Anonymous said...

The Obama poster is a stencil portrait. All he does is print off the photo, set a template on it, and cut out the areas he wants out and that becomes the stencil. So he is working right on the photo the whole time. He then can draw or paint identical images, letters, and whatnot. Using the stencil. Same method kids use in first grade to draw animals and whatnot.

A stencil can be line for line the same as that photo. The measurements can match because it is a copy of the blown up photograph. That is what he does and it is just a copy of what he is using at that time.

I could find a portrait of you online and scan it off and make a exact copy by making a stencil of it. He has mad skills making them most people are sloppy. He makes pieces for his collag stuff the same way. It is just print, cut, and paint.

Anonymous said...

I'm sure they could make a case. Now adays they sue and waist the court's time with anything and lawyers are quick to try to make money. The laws have not really caught up with technology in regards to copyrights, etc. But technically it is a different medium from a photograph. It is a computer rendering of a photograph. Thus it is a creative reinvention and not a "copy". One could not easily mistake one for the other. Also the intent was not to copy the exact work and deceive either. The arguement for copyright infringement is weak at best.
On a personal note I agree with many of the others who left comments. It is a sad state of affairs to be concerned with a case with these specifics. And it represents a total misunderstanding of the artistic endeavor, and instead reeks of jealousy, pettiness and the greed to make a quick buck and achieve fifteen minutes of fame.

Balhatain said...

Anon said, “The laws have not really caught up with technology in regards to copyrights, etc. But technically it is a different medium from a photograph. It is a computer rendering of a photograph. Thus it is a creative reinvention and not a "copy".


Difference in medium does not matter according to copyright. As someone mentioned above the ’Hope’ image is a stencil portrait that involved aspects of collage.. Educate yourself on the process and then tell me it is not directly connected to the photograph.

Anon said, “Also the intent was not to copy the exact work and deceive either. The arguement for copyright infringement is weak at best.”

Again, look up how people use stencils. Using a photograph-- work by someone else-- and then calling it your own is very deceptive in my opinion. “Weak at best”… Not according to the professionals I’ve spoken to about this issue and similar issues concerning copyright. Again, it would be up to a jury to decide. However, there is a case to be made. You must also consider Fairey’s history.

Anon said, “It is a sad state of affairs to be concerned with a case with these specifics. And it represents a total misunderstanding of the artistic endeavor, and instead reeks of jealousy, pettiness and the greed to make a quick buck and achieve fifteen minutes of fame.”

You think it is sad to be concerned about alleged copyright infringement by an artist who has a history of settling out of court over the same issue? So do you think it is “sad” that people are standing up for artist rights and the need for copyright protections? Do you think it is “sad” that most artists want to protect their investment of time, materials, and passion? Is it “sad” that most artists want to prevent their art from being exploited by individuals or corporations?

Anon said, “it represents a total misunderstanding of the artistic endeavor”

My opinion is that you represent a total misunderstanding of copyright and why we have copyright in the first place. Do you adhere to the idea that there are no rules in art? Should artists be exempt from copyright? Is that what you are suggesting?

Technically there are rules--- and those rules involve copyright. Where profit is concerned there must be rules. Many individuals and companies have profited off merchandise involving ‘Hope’.

Anon said, “reeks of jealousy, pettiness and the greed to make a quick buck and achieve fifteen minutes of fame.”

Why? Because Shepard Fairey is a famous artist? If the photographer wants to take legal action he will. He has every right to do so. You are suggesting that someone who is not overly known for his or her work should submit to the creative whims of those who exploit their work if they happen to be world renowned.

Are you suggesting that only successful artists should have their works protected? Again, what if the image had been taken by a photographer working on his or her own art project? Would your opinion change?

Anonymous said...

I guess it shouldn'e be surprising that someone who buys into the hysteria concerning the Orphan Works Bill doesn't know the difference between copyright infringement and photo reference.

Anonymous said...

Your condescending tone in dismissing any comments that disagree with your original premise is deplorable. I've been following this blog post expecting an interesting discussion of a relevant topic, alas it seems to have descended into a pulpit for you to air a chip on your shoulder and bash anyone who disagrees with you. Sure, it's your blog, you can do whatever you want with it, but your righteous tone in methodically responding to all contrary comments reflects your authoritarian additude to copyright.

Anonymous said...

Nice work Brian. I couldn't agree more.
—Felix Sockwell

Nate said...

I'm glad to see you spotlighted this topic.

As an artist/designer/illustrator, I was told time and time again by my college instructors to always take great caution with your resources, especially when working with photographs. These were guys who were commercial art veterans, so they knew how easily an artist could fall into the legal quicksand of copyright infringement.

It's quite obvious that Fairey is not only careless in his resourcing, but he disregards other artists' work (primarily photographers) since he reapropriates their work for his own and doesn't give them credit much less monetary compensation.

I actually do enjoy looking at Fairey's work on a surface level, but it leaves a bitter aftertaste knowing his "artistic" process is less than creative and ethical. My points:
A. The base image is most likely stolen.
B. the stylistic execution is not original and is based entirely on communist propaganda material.
C. Shepard Fairey doesn't even create all of his own artwork, especially in the case of OBEY.

To top off this fiasco, Fairey was recently trying to pull the copyright card out of his own hand, shooing away other artists who were capitalizing on "Hope" knockoffs.

I'll end this comment by saying Fairey is a Class A biter. There's a fine line between inspiration and stealing and I believe Fairey has crossed it.

Balhatain said...

Anon said, “I guess it shouldn'e be surprising that someone who buys into the hysteria concerning the Orphan Works Bill doesn't know the difference between copyright infringement and photo reference.”

I know the difference. Three legal eagles that I’ve spoken with know the difference. If you don’t like copyright you need only speak out against it. Until the laws change though you have to follow what is in the books.

Anon said, “ Your condescending tone in dismissing any comments that disagree with your original premise is deplorable. I've been following this blog post expecting an interesting discussion of a relevant topic, alas it seems to have descended into a pulpit for you to air a chip on your shoulder and bash anyone who disagrees with you.”

It is called debate. The problem is that the disagreements have had flaws-- they lack a working knowledge of copyright. If someone states something false about copyright, like saying that if a certain percent is changed it is “OK”, I will point it out.

I’m not going to agree with a position if I know it is not based on what is currently in the books. Forgive me for knowing a little bit about what I’m talking about. Forgive me for not being passive or blindly accepting ignorance as fact.

Anon stated, “Sure, it's your blog, you can do whatever you want with it, but your righteous tone in methodically responding to all contrary comments reflects your authoritarian additude to copyright.”

So now I’m the evil artist with elitist views on copyright? Is that what you are suggesting? If you think I’m the devil than visiting galleries must be like a trip to hell for you-- most artists acknowledge copyright and will uphold the protections granted to them. As the saying goes, if you can't handle the flames stay out of the fire.

If it appears that I have an attitude it is because I’m frustrated with the ‘get out of jail free card’ that certain artists apparently have. I point out flaws because it is time for people to realize what is right and what is wrong concerning copyright. I’m not going to say “you might be right” if I know the person is dead wrong. I’m an advocate for artist rights and copyright-- I’ve made that clear.

Look at the comments I’ve responded to. I can sum them up for you.

‘What Shepard Fairey did is OK because he made it better’ WRONG

‘Creating a stencil over a copyright protected photograph is ok.’ WRONG

‘It is ok because they are two different mediums.’ WRONG

‘It is ok because the photograph was not art it was a press photo’ WRONG

‘You don’t like this just because it involved a computer’ WRONG

‘It is OK because it was for a good cause’ WRONG

‘You are being hard on Fairey and not Warhol, Koons, or Hirst’ WRONG

‘It is OK because Shepard Fairey said it belongs to everyone.’ WRONG

Come up with a batter defense and I may consider it.

Balhatain said...

Nate said, "I actually do enjoy looking at Fairey's work on a surface level, but it leaves a bitter aftertaste knowing his "artistic" process is less than creative and ethical."

Exactly. The media has done a poor job of reporting on that aspect of his work.

jim p said...

Thanks for posting this. Of course there are more relevant issues to be discussed, but that doesn't mean that orphaned works shouldn't be discussed. I think a lot of photographers do care, especially if they have to make a living from their work.

newyorkette.com said...

In this case, it really does look like the artist used the photograph as a template, working directly from the photograph, to the point where the photo and the illustration can be superimposed upon each other without discrepancy. It is very rare that an illustrator, provided with photographs for their work, will go that far. It certainly does raise interesting questions.

When artists do portraits of public figures for magazines, the magazines often provide them with a selection of photographs to use as inspiration. If you look at portraits done by many of them, carefully, you can tell which photographs they used -- often the same one is used by several different illustrators -- for their various works. Particularly if you had the folder of photographs to use as a reference. You'd know which photographs, as an illustrator, to leave out of your selection, just because they're already been used so many times. This is common practice. I've personally seen people say, "hey, we used the same photo, didn't we?" But seriously, is this "ripping off" a photographer?

An illustration is not a photograph, and vice versa. The way I see it, unless I take a photograph and rework it in photoshop or paint over it exactly, or reproduce that photograph detail for detail so that someone could mistake my drawing for the photographer's work, my work is another work. It is pretty obvious to an artist when one has simply copied a photo, and when one has used a photo as a starting point.

How does one proceed when one has used, say, two different photographs as basis for a portrait in ink and watercolor? If the work has some aspects of each photo, are we meant to give credit to the two photographers? And what if the likeness is bad? Can the photographer sue for bad copying and distorting his image? How about when the artist's style is so stylized that the lines and likeness look like a manga cartoon? Does that make it not a ripoff? Or yes? What about when an illustrator uses just a part of a photo, like the face, but gives the person a tiny body, or a different body, or different clothing, or ages them, or puts them in a different surrounding? Is it still a rip-off? What if one part of the illustration uses one photo, and another part uses another photo??

What is an artist has so internalized various famous photos of a public figure to the point where he or she can create drawings that resemble photographs from memory without even realizing it?

Where does one draw the line? Most artists make an effort to make their drawings NOT look like a simple reproduction of a photograph.

Anonymous said...

This would be a tough fair use argument to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.

Anonymous said...

If the photographer feels honored and does not care, then it is not a big deal.It seems some people are simply jealous of this artist to continue nagging.There are so many paintings of famous people that artists have painted from photographs. Some have been published in art books. All those photographers are aware of it.
Soon the artists will not be able to paint any thing. To paint a Mercedes car they will need permission from the company that builds those cars.To paint wildlife, permission from the parks which are reserved.To paint a flower permission from owner of that garden. Every thing belongs to someone and has a copyright.

Nate said...

And did you know Fairey's OBEY company name is lifted? That's right, he got the idea from the 1980s movie "They Live" in which subliminal messages are sent to humanoid aliens.

Fairey has captured screen shots of this movie for posters, using the "Obey" and "This Is Your God" as headlines.

The thing that seems to nag me about Shep Fairey is that he sometimes plays the persecuted street artist. A guy just trying to practice his craft without getting flack from "the man." Yet, at the same time, he has no problem exposing himself as publicly as possible, taking money hand over fist from the same group in society he ridicules.

Hypocrisy at its finest.

Otto Rapp said...

I totally agree with Bobbie Jansen. The argument is silly and contrived. Maybe Leonardo da Vinci should have sued Rubens over "The Battle of Anghiari" .....
But if this issue had any merit beyond the splitting of hairs, perhaps a great portion of the art displayed on myartspace should be suspect of copyright infringement.
Indeed, presenting a 'flacid' argument is an infringement of Dali's concept ;)

Anonymous said...

The media should be all over Shepard Fairey and Obama for using this image without permission. When the Republicans bought rights to use songs and the artists sued for infringement it was all over the news and blogs about how Republicans don't respect copyright. This shows how biased the media is!!! Obama ran his entire campaign on image theft!

Balhatain said...

Otto said, “The argument is silly and contrived. Maybe Leonardo da Vinci should have sued Rubens over "The Battle of Anghiari"“

Copyright laws have not been around that long--- you know that, so why use that as an example? You may not agree with copyright, but something tells me you would not agree with someone printing off an image of your art, making a stencil of it, and earning over $400,000 with the ‘new’ image. Honestly, would you be ok with that?

Otto said, “But if this issue had any merit beyond the splitting of hairs, perhaps a great portion of the art displayed on myartspace should be suspect of copyright infringement.”

My focus is not on creating controversy if that is what you are suggesting. Shepard Fairey created this controversy for himself the moment he decided not to give credit to the photographer. This issue is about copyright and the need to discuss copyright.

Shepard Fairey is a good example to use due to the constant bombardment of mainstream exposure that surrounds him. If the media had done a better job writing about these issues in connection to his work I would not be doing it.

Shepard Fairey is the perfect example of why it would have been very bad if the 2008 orphan works legislation had passed. If it had passed he would be able to use images of your art in his art knowing that upon finding out you would not be able to seek statutory damages.

If the bills had passed you would only received 'fair' compensation based on what he pays his assistants per hour or per piece. In other words, you would have ended up with a couple hundred dollars in compensation even if the image he stole from you earned him over a million in profit.Plus he would have been able to continue using the image for that specific item-- a poster for example-- without paying you royalties.

Still think the issue does not have merit?

Balhatain said...

It is important to keep talking about orphan works legislation because it will pop up again in the future. Art organizations that have been following the issue closely have suggested that it will be a further danger to artist rights when it does return. Thus, we must keep an eye open.

Legislation involving orphan works should not harm the prosperity of living artists. It should not prevent living artists from being able to defend their art in court. It should not prevent living artists from receiving compensation when their works are exploited for profit. It should not prevent living artists from being able to halt corporations from using their art without permission. It should not prevent living artists from making sure that their art is used in a way that they agree with.

There are also families to think about. As it stands art is protected for up to 70 years after an artist has died. Part of that is based on the idea that the artists immediate family will have some control on their loved ones legacy-- to make sure that the work is used in a way that he or she would have agreed with. You could also say that it allows an artist to provide for his or her immediate family after he or she has passed. How can you not support that?

josephbolstad said...

I've been following this discussion over the past few days and it is amazing how it just keeps growing. Even more amazing is how incredibly conservative the tone has become. Scanning images and using them to create something new isn't "cheating" or "copying," nor does it indicate a lack of skill. It's contemporary, cutting edge art practice that apparently many commenters here simply cannot accept.
The fact that Brian has interviewed a wide range of artists on this blog is commendable, but it does not excuse the very constrictive stance he has taken here. He stated, "‘Creating a stencil over a copyright protected photograph is ok.’ WRONG." In statements like these, not only does he accuse Fairey of copyright infringement, but he writes as if there is something ethically wrong with this particular way of making. Let me pose a hypothetical situation: if Shepard had physically bought a newspaper, cut out the photo, and painted directly on top of the newsprint itself to create this image, it would be indisputably legal because he paid for the newspaper. But are these two processes really so different, ethically speaking? Fairey essentially did the same thing, but digitally and without buying the paper.
With that in mind, I think it is fine to question this case in terms of the ambiguities of copyright law, if you really want to, but c'mon, to say that Fairey did something horribly unoriginal and ethically wrong and shouldn't be tolerated in the art world is going too far.
Also, shouldn't all the confusion over which is the "real" photograph be a sign to just give it a rest?

Balhatain said...

Joseph said, “Scanning images and using them to create something new isn't "cheating" or "copying," nor does it indicate a lack of skill. It's contemporary, cutting edge art practice that apparently many commenters here simply cannot accept.”

It is not exactly “cutting edge” in my opinion. Fairey is not the first to print off images for collage nor will he be the last. I agree, it does take skill to make a collage that captures the attention of an audience.

What people can’t accept is the fact that Fairey did not give the photographer credit and that it could have happened to anyone. That is the issue. Would you be ok with another artist using your art for profit?

Joseph said, “The fact that Brian has interviewed a wide range of artists on this blog is commendable, but it does not excuse the very constrictive stance he has taken here. He stated, "‘Creating a stencil over a copyright protected photograph is ok.’ WRONG." In statements like these, not only does he accuse Fairey of copyright infringement, but he writes as if there is something ethically wrong with this particular way of making.”

I know that Fairey has infringed on copyrights. I’ve researched the Rene Mederos case. In that case he did the same thing-- he scanned an image out of a book and made a stencil over the image. He has admitted that. I do think it is ethically wrong when an artist infringes on a copyright protected image. Again, I support copyright. I think it is vital for artists and others to have their work protected.

As for using stencils-- I have no problem with it as long as the artist does not infringe on copyright protected images. You have to remember that Shepard Fairey makes a profit off of his work-- it is not like he is some kid making a one-off on the side of a building.

Many artists use stencils-- some create them over their past work to use in new works, some ask permission to use the work of others, some take photographs to use-- and there is nothing wrong with that. I'm not against the use of stencils.

Anonymous said...

There is a bigger picture to this. 98% of the US population thinks that art is important to the growth of culture and individual identity. But only about 26% feel that artists are important. So there is a disconnection between the art and the creator of the art in the eyes of most people. That needs to change.

It’s nice to think about a world of freely circulating images, designs, and music, but artists have a right to make a living from their work. Period. Why should the art industry be treated differently that the auto industry? Do you expect to get cars for free?

peter said...

Two points in favor of Fairey:

The original photograph hardly constitutes much in the way of original creative work. It's a rather run of the mill image of a guy whose image is currently the most well-known one on earth.

Second, Fairey's transformation of the image gives it a resonance the original image utterly lacks. I would be far more likely to consider Fairey's poster a transformative work than an illicit appropriation.

Scott Moore said...

This is a contrived argument, as the photrapher has already said he doesn't care.

But there is a bigger issue. The fact that magazines provide stock photos to illustrators to do drawings for political cartoons and other commentary type illustrations basically says that unless you have high level connections and are already established, that you can't comment on society through art.

How are we to comment on public figures with art if we're subject to such strict copyright laws? This sounds like an attempt to control speech rather than protect copyright.

This blog is one sided and very uninteresting on this subject. I give it two thumbs down.

Anonymous said...

1. a photograph does not have to be creative to benefit from copyright protection.

2. Technically digital images of your family at Christmas benefit from copyright. An image by the press or anyone else is no different.

3. Chances are the press photo of Obama also has the benefit of having a registered copyright.

4. It does not matter that the Fairey image is done in a different medium nor does it matter if his image is more ‘powerful’ than the original photograph. In court that would be viewed as being trivial compared to the facts.

5. We already know that Shepard Fairey used stencils to create ‘Hope’. We also know, from his own words, that he found a random image of Obama on Google. That would come up in court if this scenario were to happen. It would be hard for Fairey to deny what he did.

6. An image being transformed does not make it legal where copyright is concerned. The second photograph matches directly with the poster because he used a stencil.

Balhatain said...

Scott, Mannie Garcia did not say that he “doesn’t care” as you suggest. He stated that he would not go after Shepard Fairey’s money-- but he would like to sit down with Fairey and discuss the implications of his appropriation. He made it clear that he does not like how photographers are ‘ripped’ off.

The point is that this could have happened to anyone. You’ve yet to respond to that. What if it had happened to your art? What if Shepard Fairey created a poster using your art? Would you still say it is acceptable? What if a company used your images on products without your permission-- would you accept that?

No one said you can’t comment on public figures with your art-- though I will say that public figures do have some say on how their image can be used if the original work is mass produced and distributed-- What you can’t do is use a copyright protected image directly in your art as Shepard Fairey has apparently done. There are exceptions-- had the photograph itself been ‘iconic’ there would be grounds for parody. Again, it would really boil down to how the jury perceives it.

Scott, you are basically suggesting that every image should be free to use. Your idea of freedom of speech implies that all images should be up for grabs and that if an artist supports copyright he or she is against freedom of speech. Is that what you are suggesting?

Again, would you be OK with another artist profiting off of your art if he or she made it more ‘powerful’ by adding to the image? Yes or no.

Anonymous said...

Its a trip to say that Sherwin does not support free speech. He supported the art of Sarah Maple before it was popular. That is just one example buddy.

J.D. Hastings said...

Art can be as damaged by overly harsh copyright laws as overly permissive ones. The courts are very cognizant of this when ruling on cases. I'm not sure how the orphaned works bill will change things, but up to now. there are four controlling questions that the court asks in determining whether someone deserves dameges.

Of course I can't remember them off hand but I've been meaning to write an analysis of a recent federal court opinion on the matter. Maybe now is a good time.

Balhatain said...

J.D. Hastings, when it comes to allegations of copyright infringement the judge or jury would ask if the alleged infringer had access to the image. They would also examine the two images in order to decide if they are similar-- not just in look or style, but within the details. They would then consider how similar the images are and decide if the original work played a crucial role in the creation of the new work. Again, it really depends on the jury.

The current form of orphan works legislation would change things because statutory damages would no longer be involved. In other words, the common $75,000 to $100,000 penalty for infringement would be gone. It would be totally off the table-- and that is often what keeps people from infringing in the first place. There are other factors as well.

Basically if the 2008 orphan works legislation had passed it would not be worth taking an infringer to court. If it had passed you would end up paying more to defend your copyright than what you would get back in compensation-- plus the infringer could continue to use your image without paying royalties for the specific items the image is involved with.

ArtBusiness said...

Don’t use freedom of speech and the First Amendment to defend Shepard Fairey. The way some of you are using it would be like saying it is wrong to put someone in prison for killing someone because the murderer was expressing his freedom. Freedom has limits for a reason. We live in a democracy not anarchy.

ArtBusiness said...

Art is a business just like any business. A car company can't borrow from the patent of another car company without ending up in a legal pit. The same goes for copyright and images. You don't have to agree with it but you do have to obey the law or risk legal action. If you don't like copyright law write your senator about it. Just don't cry when Walmart earns millions each year selling shirts with your images on them.

Name said...

ScottMoore said "This is a contrived argument, as the photrapher has already said he doesn't care."

This may be true, but I should point out that Mannie Garcia took this photo while under contract for the AP. Technically, the AP may own the copyright to this photo and I'm guessing they wouldn't take a case alleged plagiarism lightly.

Anonymous said...

I appropriated this opinion from a lawyer.

This is not a transformative work. It's not that much of a change (plus changes in color and style have been held not fair use before, see Rogers v. Koons). On the other hand, the original photographer had NO IDEA his work was the basis for the "Hope" posters until someone told him so a couple days back. There's probably a decent argument though that the poster cut into the photograph's market share; not by supplanting sales of the original but depriving the first author of licensing fees (which could have been a real goldmine given the viral popularity of the second work).

LawDog said...

We know that Shepard Fairey willfully infringed on the photograph. He has made clear in interviews that he found the image on Google. He has willfully admitted that he acknowledges that he infringed on the copyright of the photograph. We know that he created a stencil over an enlarged printed off copy of the photograph he found online based on interviews and articles about the poster. There is room for the photographer to take action. If the jury sided with the photographer the damages would either be actual damage plus the infringer’s profits or statutory damages of up to $150,000. Since the Obama campaign profited from the image the case could get nasty if it were to happen. It might be hard to prove that the Obama campaign willfully infringed on the photograph. On the other hand it is within reason to claim that they had to have known because of the media coverage about the poster and the statements Fairey made about the poster.

peter said...

While a photograph is of course entitled to copyright protection, the degree of creativity in the copyrighted work is a factor considered in determining whether a work derived from it is fair use or an infringement. Thus, the fact the original photograph is not the most original image in the world would help Fairey's case that his image is air use.

And who in the world would even begin to believe that the HOPE poster with the original photograph would have had any impact. That alone is enough to convince me that the transformation Fairey rendered made his poster a non-infringing fair use of the copyrighted work.

Did anyone notice John Williams' composition played by at the inauguration copied note for note in many passages a piece by Aaron Copland (that itself borrowed the tune from a Shaker hymn)?

Anonymous said...

Stencils are used by people who can't draw. A decent artist would be able to look at photographs and draw Obama using something we old dogs call skill. A stencil is just a line copy of another image. Last I checked that would be considered copyright infringement.

Anonymous said...

Peter, this would be a tough fair use argument to win because the ‘transformation’ is purely in the look of the work, not the purpose… campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there’d be a strong argument for market harm.

Balhatain said...

A word to the wise-- I'm not going to post a comment if the foundation of the statement is based on how many times you can use alternative versions of the word ‘sex’ and ‘feces’ in order to support your stance. It does not add anything to the debate.

Anonymous said...

People don’t like it if you are critical of his art because a.) he has raised a lot of money for charity groups b.) he shrugs criticism off as jealousy or apathy c.) people don’t care if visual art is protected. This is because a.) we live in a society that dictates that it is acceptable to do something illegal if you are doing it for the greater good b.) people don’t realize that calling people jealous or apathetic is very arrogant c.) we have devalued all of the arts by not paying for music. Everyone wants something for free without being questioned about the ethics of their choice.

CA said...

Copyright is important because without it there would not be a visual art industry, music industry, or film industry. Culture as we know it would not exist if it were not for the market of these industries. Laws protecting these industries have supported a wave of music and art the likes of which has never been seen before in human history. Take away copyright and they would all fall. If copyright did not exist record labels would not bother with the investment of putting together a concert, curators would not bother with exhibits knowing that everyone and his mother could exhibit copies of the same art at the same time, critics would not bother to write about art or music because there would be no way of knowing who created what, where, and when. Even Shepard Fairey would fall if there were no copyright laws. Would people pay $85,000 for his original art if they knew they could buy the same piece next door for far less. Would they pay $100 for Obey hoodies when they could order something with the same image on it on Cafepress. Copyright allows branding of artists, musicians, and actors. That is what people buy. If copyright was gone your next trip to Walmart would be like a trip to a museum.

Anonymous said...

Transformation has to be examined on a case by case basis. One of the key points of transformation in law is that it is given more weight than commerciality in court. The verdict depends on the taste of the jury or the judge. The first major case for transformation took place with Campbell v. Acuff-Rose Music. The judge sided with 2 Live Crew because he felt that their use of “oh, Pretty Woman” by Roy Orbison would not confuse the public to be mistaken for the original song because Orbison was a famous musician. The judge also found that it would be unlikely for any artist to find creating transformative works a lucrative derivative market. I think the $700,000 that Shepard Fairey’s Hope poster has made and the millions that Richard Prince has made is a sign of the opposite. I don’t think the judge at that time would have had the same verdict if 2 Live Crew had used music by a lesser known artist.

robert finegan said...

super touch art has an article of interest.

http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/

Anonymous said...

Vallen's article came out in 2007. As far as I can tell Obey: Supply and Demand The Art of Shepard Fairey 1989–2009 was published after Vallen's article.Shepard started working on the book in 2007 AFTER the Vallen article. In fact, one could say that Shepard rushed to defend his work because of Vallen's article. That is all good, but it does not make up for the fact that he did not inform viewers of the origins before hand. The Rene Mederos ripoff that Fairey did titled 'Cuban Rider' was pulled from production in 2007 shortly before Vallen's article was posted. The article was written with the guidance of the art historian who discovered the Rene Mederos infringement.

Anonymous said...

The article by Supertouchart also forgets to mention that most of the artists mentioned in defense of Shepard Fairey created their works before the copyright acts of 1976. Since then Jeff Koons, Damien Hirst, and the Andy Warhol Foundation have all lost cases involving copyright infringment against them. Koons and the Andy Warhol Foundation lost cases to photographers. Richard Prince is also used to defend Fairey in the Supertouchart article. I hope the author is aware that there is a copyright infringement case brewing over Richard Prince right now involving a photographer. The Supertouch article states that images that Vallen used to point out infringement were mostly from Fairey’s early career and that Fairey only made up to $25 a pop off of the posters at that time. The article goes on to say that Fairey did not actually profit because all of the money was used for printing costs. What Supertouch needs to realize is that profit is profit. It does not matter how the money is used after it is made. Since the article by Vallen was written in 2007 it makes sense that he did not include images from “recent years”. Fairey has said in interviews that the history behind the images does not matter and that the image it self is what he want to give “props” to. So if his books say different it is a big contradiction. The article by Supertouch touches on images that other artists have used in their works. It uses the Sex Pistols album cover with the Queens official seal. What the author fails to note is that images like that are fair games because of how widely they are known. The image of the queen is in itself iconic, but many of the images that Fairey has used are not iconic. For example, you can use Mickey Mouse in your work because of the characters iconic status and because fair use allows for that. But fair use does not allow for an artist to use photographers and other images by artists who are not widely known. When people view the Sex Pistols album cover they know the source. When people view Fairy’s ‘Cuban Rider’ they don’t know the source unless they have a great deal of knowledge about Cuban revolutionary art. The article does not mention anything about Shepard Fairey’s infringement of Mannie Garcia’s Obama photograph or the fact that Shepard Fairey has sent cease-and-desist letters or threatened legal action for far less. Look up Baxter Orr. You can't make a parody of every copyrighted image you find. The image in itself has to be iconic in order for people to know what you are making a parody about or what you are commenting on. People could make a parody or social comment on Shepard Fairey's Hope and they would be within fair use because Hope is known the world over.

Anonymous said...

Your attempts to tie this controversy to the proposed Orphan Works legislation is misinformed.

There are many requirements that must be met by a subsequent user wishing to claim "orphan works" protection, including the performance of a "reasonably diligent" search and the best-possible attribution of the source material used.

Given their reliance on their intellectual property, it is understandable that artists are extremely conservative when it comes to changing anything in copyright law. But artists have nothing to fear from orphan works legislation.

Balhatain said...

Anon said, "Your attempts to tie this controversy to the proposed Orphan Works legislation is misinformed."

How so? My point is that if the 2008 legislation had passed the photographer-- if he had chosen to file suit-- would have seen his rights greatly decreased. Some damages would have been off the table if the legislation had passed.

Anon said, "There are many requirements that must be met by a subsequent user wishing to claim "orphan works" protection, including the performance of a "reasonably diligent" search and the best-possible attribution of the source material used."

And how does one define a "reasonably diligent search"? The problem with the 2008 legislation is that it greatly reduced consequences for copyright infringement. If it had passed it would have been open season against all living artists. I can understand why there is a need to make works from the past available-- that said, there is no reason for the bill to harm the business of living artists.

Anon said, "Given their reliance on their intellectual property, it is understandable that artists are extremely conservative when it comes to changing anything in copyright law. But artists have nothing to fear from orphan works legislation."

Don’t mistake passion for fear.

donna said...

After reading that Associated Press attorneys are trying to take a cut of Shepard Faireys' profits on his Obama artwork, I nearly puked. What's next? Does the Campbell Soup Company or the Church & Dwight Company (makers of Brillo pads) sue the Warhol estate? Does the AP own the rights to images of the Eiffel Tower or the Taj Mahal? I trust the Obama people will become heavily involved in this outrageous legal frivolity since they encouraged the artist in his work.

I've "borrowed" images and altered them in some of my artwork; must I now fear a lawsuit should a megalithic corporation catch wind of my pitiful endeavors to make a statement . . . and possibly a buck?

Anonymous said...

The difference between Warhol and Fairey is that Warhol used images that were widely know. The photograph of Monroe was already famous and the soup can was mmmmm, mmmmm good. People knew what Warhol was commenting on. Fairey on the other hand uses photographs and other artworks that are not widely know. So you don't know what he is commenting on unless you buy his Supply and Demand book for $59.95. Fair use is not an open door to making infringement legal. The Warhol foundation has been sued for copyright infringement and lost. So has Koons, Hirst, and Richard Prince is heading to court now.

Anonymous said...

Thought you should include this info here Brian. Since it updates everything you've been saying

The Associated Press situation involving the artist Shepard Fairey and allegations of copyright infringement has taken a twist. Shepard Fairey’s legal team broke settlement negotiations with the AP on Friday. Earlier today the artist filed against the AP in hopes of gaining a supportive decision from a judge concerning his use of the AP owned photograph which served as the base image for three versions of Fairey‘s Obama posters.The AP wants to make it clear that works by photographers and artists should not be misappropriated by others.

This case will be important because if Shepard Fairey wins it could mean that any photograph or image of art is fair game. This year will either be a major blow for copyright or a year that brings a clear definition of what fair use is.

More on the story,

http://www.myartspace.com/blog/2009/02/shepard-fairey-sues-associated-press.html

And why Baxter Orr's poster is fair use,
http://www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Tommy Gun said...

I left a comment about Baxter Orr on the Fair Use Project blog. I posted it on a entry about Shepard Fairey by Anthony Falzone. I asked why they are defending Shepard Fairey's right to fair use knowing that Fairey tried to scare Baxter Orr with legal threats when Orr claimed fair use with his parody of Obey Giant. I tried to reply to another commenter today and a message popped up saying I was banned from commenting. I guess they don't want people to know about Baxter Orr. Anthony Falzone is a hypocrite just like Shepard Fairey. I read some of his blog posts and one was about right wing wacko Michael Savage trying to stop CAIR from posting Savage quotes on their site. Falzone said that Savage should accept free speech since he makes his living off of it. "The right to speak and the right to criticize speech you don't like are equally important.You'd think that Savage of all people, who depends on free speech to do what he does for a living, would understand that." I think it is funny that Falzone would say something like that about Michael Savage and then end up having the Fair Use Project defending Shepard Fairey. Maybe they don't know that Fairey sent cease and desist letters to Baxter Orr and called Orr a parasite. Michael Savage and Shepard Fairey share something in common because they both uphold their rights and try to stomp the rights of other people. Shame on Fairey and shame on Falzone. Free speech does not matter to The Fair Use project unless it is speech they want on their blog.

hurtstosit said...

I'm curious to see how this plays out.
In my opinion, as an artist and a photographer, the ability to claim your copyright begins and ends with the original work's reproduction rights. Not derivative works.

-- QUESTION --
What about Andy Warhol? Andy's artwork, then should be completely removed from the museums, until the owners of his collections are paid their dues? Cambells and Brillo brand names, plus the original photographer or publisher of his source photo's used in the silkscreens.

There are many examples that are similar to this issue, but i think the more you try to prohibit, the more you foster an underground movement.

Lloyd Shugart said...

We must answer the following riddle: When is a photograph no longer a photograph?

Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent.

The question we must answer, then, is whether subsequent modifications transformed the scanned photograph into something that was no longer a photograph.

There is no doubt, noticeable alterations to the image from original photo. Arguably these changes have transformed the image from a photograph into an illustration based on a photograph.

Viewing the problem through this lens, we conclude that the alterations made failed to destroy the essentially photographic quality of the image.

Changes in color alone do not render an image any less photographic, but here the addition of posterization has produced an effect such that at first glance it is unclear how the image was created.

The question, however, is not whether the image is readily recognizable as a photograph standing alone. To evaluate the degree of accurate, lifelike detail an image contains, we must necessarily compare it to the original.

Once we do this, all doubts disappear. The precise shapes, their positions, their spatial relationship to each other--all remain perfectly distinct and identical to the original.

Despite the differences in appearance, no one familiar with the original can fail to recognize this. The image thus remains essentially what it was the moment it was transferred to the poster: a photographic reproduction. It is now a filtered, posterized reproduction--but photographic nonetheless.

We find that the use of the photo was an unauthorized use and therefore infringes copyright. We REVERSE and REMAND for a determination of damages.

http://bulk.resource.org/courts.gov/c/F3/207/207.F3d.1119.98-16061.html

hurtstosit said...

For this specific case, if the AP wants to consider it's photos privately protected, then maybe they shouldn't be issued front-row-seat public press passes.

Anonymous said...

I keep reading these liberal art critics comparing Shepard Fairey to Andy Warhol, Jeff Koons, and Richard Prince. Reading their words you know that they don't even know who Shepard Fairey is and that they are commenting in support of him because it is popular to do that. Heaven forbid one of them muster enough courage to go against the Obama wackos in Chelsea or Boston. I think it is stupid to compare Shepard Fairey to these notable artists because he has not proven himself yet. Lets see if people still report on him after Obama drops in the polls. If his only claim to fame is Obama I'm afraid his career will ride on if Obama is successful or not. Warhol did not have to cling to a politician for stardom and a quick buck. Some of us knew Andy. Fairey IS NOT Andy. He never will be. SHEPARD FAIREY IS NOT ANDY WARHOL!Calling him the Thomas Kinkade of angsty youth rebellion is more like it.

Anonymous said...

Shepard Fairey is not street artists. If he was he would be with the Buk 50, MSG, and 28 crews.

fortunate_son said...

"I keep reading these liberal art critics comparing Shepard Fairey to Andy Warhol, Jeff Koons, and Richard Prince. Reading their words you know that they don't even know who Shepard Fairey is..."

This person obviously is some ultra-right-wing ignoramus who doesn't know what the hell he/she is talking about. I am an artist of many years and you certainly can compare Shepard Fairey to Warhol and other pop-artists. Fairey established himself and OBEY way before and outside of Obama came a long. The statements made reveal this.

"Anonymous" (of course doesn't have the guts to post by anything other) is just an Obama hater wanting to push his/her politics and doesn't know crap about the subject or ART. Lame.

Politics aside, if you're going to post about art, take an art history class, read about the subject matter and get your facts straight before you post such nonsense w/such "authority".

"Shoot first and ask questions later" right 'Anonymous'???

Balhatain said...

Don't mix freedom of expression with freedom to profit. Remember that works like this do not become an issue of copyright infringement until a price tag is attached to the work or mass copies are produced. Fairey's opinion is based on profit-- his profit-- not creative freedom. Understand what this is really about.

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