As I’ve mentioned before the issue of Shepard Fairey, Mannie Garcia, and fair use has sparked a debate among the copyright law community online. Now the debate has been taken to the next level due to the fact that the Associated Press has acknowledged their ownership of the photograph and has made it clear that they want compensation from Shepard Fairey as well as some control over how the image is used in the future.
The debate is centered on a press photo of Obama taken by Mannie Garcia that Shepard Fairey used in order to create his stencil portraits of Obama. The story has caused an outrage among photographers and supporters of copyright protection due to the fact that Shepard Fairey did not ask permission to use the photograph. Others claim that Shepard Fairey’s use of the photograph falls under fair use as transformative art. However, fair use is still a predominately untested aspect of art law-- so the results of this case may help to put fair use into perspective. Needless to say, there is a growing concern that individuals and companies are exploiting the intention of fair use.
Fair use implies that the ’new’ image comments or parodies the ’old’ image-- in the case of the Obama photograph the dialogue between the old image and the new image was not established because the majority of people did not make the connection upon viewing Fairey’s various Obama posters which utilized the Obama photograph. In fact, the only defense that many Fairey supporters seem to have concerning Fairey’s fair use is that he was very open about his fair use practice in his book Supply and Demand.
However, many people-- including myself-- don’t think that fair use implies that one need buy a $59.95 book in order to be aware of the dialogue between the original images and Fairey’s work based off of the original images. Thus, if we are to accept Fairey’s idea of fair use it would mean that any image is fair game under fair use-- you just have to pitch a book to defend your intentions. Would Shepard Fairey support an artist if the artist used his images, tilted them slightly, and made a few additions in order to call the image his or her own? I doubt it. He did not like when Baxter Orr did that-- and was quick to send Orr a cease-and-desist letter.
A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr’s put a SARs protective mask over the famous Fairey image and titled it ‘Protect’. Shepard Fairey sent Orr a cease-and-desist letter and threatened legal action even though the Obey Giant image is considered iconic-- thus, Orr’s use of the image could be considered fair use. If anything, Orr’s use of the image falls under fair use more so than Shepard Fairey’s fair use claim involving the Associated Press photograph of Obama. After all, the photograph of Obama itself was not widely known.
What art law professionals are saying about Shepard Fairey’s use of the AP owned Obama photograph:
Anthony Falzone, the executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School has stated, "We believe fair use protects Shepard's right to do what he did here,". It should be noted that Falzone is Fairey’s lawyer.
Robin Gross, an intellectual property attorney who heads the international civil liberties organization IP Justice, has stated, "Fairey's purpose of the use for the photo was political or civic, and this will certainly count in favor of the poster being a fair use,". Gross has also stated, "Nor will the poster diminish the value of the photo, if anything, it has increased the original photo's value beyond measure, another factor counting heavily in favor of fair use.".
Recently Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, stated, “Sure, the photo is “transformed” to a sizable extent, which pushes the fair use needle to Fairey’s side. But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo. Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money. Push that needle back a ways.”
Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) 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 of 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.”
My take on it:
Was Shepard Fairey’s Obama posters officially endorsed by the Obama campaign or not?
Jamie O'Shea Obeys Shepard Fairey by Taking Jabs at Mark Vallen
Shepard Fairey: Obey Copyright
The Intentions of Shepard Fairey Should be Examined
Obama’s Obedient Artist: Is Shepard Fairey a Farce?
Take care, Stay true,
New York Art Exchange