Fair Use: Shepard Fairey and Baxter Orr

A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr put a SARs protective mask over the famous Obey Giant image and titled it ‘Protect’. Fair Use? You be the judge.

Back in 2008 there was a story concerning “fair use” and Shepard Fairey. Followers of the Myartspace Blog may recall that there have been comments concerning the story when art law is discussed. The story involves Shepard Fairey and Baxter Orr. Orr created a parody of the iconic Obey Giant image-- which he distributed and sold as his own. Orr-- being cynical of Shepard Fairey -- strived to make a visual statement about Fairey’s art in general. Needless to say, Orr accomplished his goal.

Debate over Orr’s appropriation of Obey Giant spread like wildfire on blogs and forums. Eventually Orr received a cease-and-desist letter from Shepard Fairey’s legal team over his use of the Obey Giant image and was threatened with legal action if he failed to comply. Due to the iconic status of Obey Giant I feel that Orr’s poster was legitimate under “fair use”. In my opinion, Baxter Orr’s use of the image falls under “fair use” more so than Shepard Fairy’s “fair use” claim involving the Associated Press photograph of Obama-- which was taken by Mannie Garcia. After all, the photograph of Obama itself was not widely known-- it was not in itself iconic.

My opinion is that Baxter Orr was working well within the realm of fair use-- or trademark fair use-- when he created, distributed, and sold ‘Protect’. In other words, his image was “fair use” under both copyright and trademark law as far as I‘m concerned. After all, Orr created his parody in 2008-- the Obey Giant poster had been around for 20 years by that time and had already been considered culturally iconic as street art and as a trademarked logo. Fairey’s image of Andre the Giant had been published dozens if not hundreds of times-- in other words, the image was already within the heart of contemporary culture.

The fact that Fairey’s image had been published does not necessarily matter as far as fair use is concerned. However, the fact that it was an art phenomenon before 2008 does-- which is why it had been published in the first place. Baxter Orr simply made a parody of a world renowned image which reflected the very intention of fair use. Thus, I don’t see anything wrong with Orr deciding to make a visual statement about Obey Giant. I have no problem with “fair use” as long as it is used in the way it is intended.

Before I go any further I must stress something-- I realize that some people are suggesting that Baxter Orr was in the wrong because Obey Giant is a trademark. That said, what people are forgetting is that there is “fair use” for copyright and trademark laws. For example, in 1997 Tom Forsythe created ‘Food Chain Barbie’. The series of photographs depicted the Barbie doll in various kitchen situations. Forsythe stated that his goal was to “critique the objectification of women associated with Barbie.”. Forsythe was soon after sued by Mattel-- the manufacturer of Barbie dolls. Mattel claimed that the artist had infringed on the copyright and trademark which the company owned. However, a federal court ruled in favor of Tom Forsythe. The court found that the photographs were protected “fair use” under both trademark and copyright law. The court stressed the importance of critiquing “cultural icons” through art. Thus, I think the court would have sided with Baxter Orr along the same grounds.

There was no mass confusion concerning Shepard Fairey’s art and Baxter Orr’s art in regards to Orr’s ‘Protect’. The connection between Fairey’s image and Orr’s image was obvious to viewers, but it was also obvious that Fairey did not create ‘Protect‘. Orr did not try to conceal the artist of the base image, so to speak. He did not hide the fact that he had used Fairey’s Obey Giant image. In other words, Baxter Orr did not claim that it was a random image that he found online or anything of that nature. He did not try to promote it as work by Shepard Fairey either.

Viewers made the connection between the two images-- there was a visual dialogue going on. For example, online comments from that time ranged from support to furious rants concerning the ethics of Baxter Orr. Orr had achieved what he set out to do in that his poster fueled debate about the commercialization of street art and the contradictions of Shepard Fairey and his fan base.

Thus, Orr’s ’Protect’ was a clear parody of ‘Obey Giant‘ as well as a social comment about criticism that Shepard Fairey and the commercialization of street art had long endured-- and continues to endure today. Unfortunately, the dialogue was-- for a period of time -- cut short by Shepard Fairey's scare tactic in the form of a cease-and-desist letter sent to Orr. The artist who says to “question everything” tried to silence what he considered opposition.

Baxter Orr was aware of “fair use”-- he knew what he was doing… which is why ‘Protect‘ can still be purchased on his site (though he has since renamed the poster ‘Protect Yourself Giant‘-- www.baxterorr.com). Orr selected an image by Shepard Fairey that people would recognize due to its iconic status-- knowing that people would not be confused. By doing so Baxter Orr fostered debate. That is why we have fair use in the first place. Is it not? Orr’s image was both a parody and a social comment. In my opinion, Orr’s visual critique of ‘Obey Giant’ was of great importance to the public concerning Fairey’s iconic poster and the controversy that has shadowed his career for twenty years. In a sense, one could say that Orr gave a visual answer to the artist who often boldly states that people should “question everything”.

According to The Austin Chronicle-- which covered the conflict between Shepard Fairey and Baxter Orr in May of 2008 -- Fairey had the following to say about copyright and Baxter Orr at the time-- he stated, . "I have to deal with the bad end of it(copyright) sometimes. I've had to pay out," he said. But, he says, the difference between him and Orr is that if he's contacted by a copyright owner, he'll stop using that image.” In the same article Baxter Orr was quoted about his opinion concerning the cease-and-desist letter he received from Shepard Fairey’s legal team, “It’s ridiculous for someone who built their empire on appropriating other people’s images,” followed by, “Obey Giant has become like Tide and Coca-Cola.”

In hindsight Orr has fully achieved what he set out to do-- Orr’s image was a visual comment on what he viewed as the hypocrisy of Shepard Fairey‘s practice. With what we know today-- the copyright infringement allegations involving Mannie Garcia‘s AP photograph and Fairey‘s ‘Hope’ posters-- perhaps Orr was right all along? If so, he made a powerful visual statement with ‘Protect’.

With that in mind-- I think there is enough information floating around to suggest that Shepard Fairey only cares about fair use when he is the one claiming it. After all, if Fairey is truly willing to “pay out” and stop using an image after being contacted by a copyright/trademark owner-- as he did with the estate of Rene Mederos in 2007 -- why is he not willing to “pay out” to the rightful owner of the Mannie Garcia photograph? Perhaps Shepard Fairey should obey the conviction he expressed over the Baxter Orr situation in 2008-- as in copyright owners being paid when they come forward. Needless to say, I don’t think that will happen.

The difference between Shepard Fairey and Baxter Orr is that Fairey is claiming "fair use" of a photograph that was not widely known involving a work of art that failed to establish a connection between the old and new image. After all, how many people said "Shepard Fairey is commenting on Mannie Garcia's AP photograph." when they viewed 'Hope'? It puzzles me that Shepard Fairey views his use of the AP photograph as “fair use’ when in 2008 he did not accept Baxter Orr’s use of Obey Giant as “fair use”-- especially when one considers the iconic status of Obey Giant against the little known photograph that Fairey chose to use for ‘Progress’ and ‘Hope’. Simply put, Shepard Fairey failed at fair use.

Furthermore, Shepard Fairey has stated that he “references” work that inspires him. So why is he against people-- such as Baxter Orr-- “referencing” his work if they are inspired by it? My point being that I don’t like contradictions. You can’t have the best of both worlds without having your integrity questioned. In other words, it is laughable that Shepard Fairey seems to think that it is ok when he “references” photographs and works of art that are not well known while at the same time saying that people can’t “reference” his widely known posters. The hypocrisy is alarming.

To be fair-- it does seem that Shepard Fairey and Baxter Orr have a mutual dislike for one another-- at least now. However, emotion does not control “fair use”. Fairey has mentioned that it would not have been an issue if Orr’s work had been pro-OBEY-- he has made it clear that he does not mind people making parodies of his images for their personal use. That said, I think the heart of this matter is that maybe Shepard Fairey did not like the fact that someone was making profit off of works involving Obey Giant. Which begs the question-- If Shepard Fairey does not like it when people profit from use of his work why does he do the exact same thing to other artists and copyright / trademark owners in general?

Links of Interest:

Shepard Fairey Threatens to Sue Artist for OBEY Giant Parody -- Animal New York
www.animalnewyork.com/news/2008/04/shepard-fairey-threatens-to-su.php

Shepard Fairey Declares Only He Can Copy and Paste -- Animal New York
www.animalnewyork.com/news/2008/04/shepard-fairey-declares-only-h.php

Artist Cage match: Fairey vs. Orr by Richard Whittaker -- The Austin Chronicle www.austinchronicle.com/gyrobase/Issue/story?oid=oid:625022

Fair Use It or Lose It Copyright owners’ threats erode free expression by Marjorie Heins -- Fair Blog
www.fair.org/index.php?page=3066

Shepard Fairey: OBEY my lawyers by Dan Wasserman -- Boston Globe / Out of Line
www.boston.com/bostonglobe/editorial_opinion/outofline/2009/02/fairey_obey_my_lawyers_1.html
Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com