Wednesday, February 25, 2009

Integrity Lost: Lawrence Lessig helps Shepard Fairey

A comparison showing Mannie Garcia’s AP photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters.

I noticed something of interest on the Lessig website recently-- be prepared for a rant. Before I get started I feel that I should include some background information about Lessig and some of the organizations he has worked with: Lawrence Lessig is a Professor of Law at Stanford Law School. Lessig is the founder of the school's Center for Internet and Society. Lessig is currently supporting Shepard Fairey's case against the Associated Press.

In fact, The Stanford Center for Internet and Society's Fair Use Project (FUP), under the guidance of Executive Director Anthony Falzone, is currently representing Shepard Fairey in his case against the Associated Press. The case stems from the copyright allegations the AP made against Shepard Fairey concerning his use of an Obama photograph that the AP claims ownership of. Needless to say, the lawsuit has spurred debate about copyright law and the rights of artists-- it has spread like wildfire on blogs and art forums.

For those who don't know, the Fair Use Project provides legal support to cases of this nature in order to “clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom.”. Shepard Fairey hopes to “vindicate his rights, and disprove the AP's accusations“ with the help of the Fair Use Project. Thus, both Lessig and Falzone desire to see Shepard Fairey win his case against the Associated Press in order to strengthen their interpretation of “fair use”-- an interpretation that places the rights of visual artists at risk according to artist rights advocates.

It should be noted that Professor Lessig has served on the board of Public Knowledge . Public Knowledge (PK) is a public interest group based in Washington DC. PK’s mission is to defend “citizens' rights in the emerging digital culture.”. The group has been very active in fighting against legislation that strengthens copyright protection for musicians and visual artists. The organization claims that they are upholding the rights of consumers by opposing legislation that would limit or prevent fair use.

Public Knowledge strongly supported the 2008 orphan works legislation-- legislation that was opposed by Brad Holland , co-founder of The Illustrators Partnership of America (IPA). The IPA and over 60 other art organizations were outraged because the legislation would have greatly reduced the ability of a living artist to defend his or her art against copyright infringers. In fact, exclusive rights would have been destroyed if the legislation had passed according to Brad Holland. Holland and his supporters firmly stand on their position that the legislation would have stripped artists of many of the rights they enjoy under current copyright law had it passed.

Now to the task at hand. On February 6th Professor Lawrence Lessig posted an entry titled ‘Shepard Fairey's AP troubles’ on the website. The message stated, “A bunch of you have forwarded to me the story about the AP threatening Shepard Fairey for copyright infringement. The Stanford Center's Fair Use Project is representing Fairey, so I'm a bit constrained about what I can say just now. More when there can be more.”. It is not uncommon for a legal eagle to remain hush, hush until more information is available. However, on February 17th Professor Lessig posted the following message on Twitter, he said, “We could use help on the Shepard Fairey/AP case.”. Needless to say, I decided to click on the link.

Upon clicking on the link I was taken to Professor Lessig’s website and an article titled, ‘Crowd-sourcing a “fair use” case’ . The entry stated, “As mentioned, the Fair Use Project at Stanford's CIS is representing Shepard Fairey in his suit against the AP. To that end, we'd be grateful for some net-based knowledge. How many photos are there "like" the beautiful photograph that Mannie Garcia took?” At the top of the article there is a comparison image that shows two photographs of Obama with Shepard Fairy’s ‘Hope’ in the middle.
From the Lessig website. The photograph on the left was taken by Mannie Garcia and the photograph on the right was taken by Steve Jurvetson. Lessig stresses that Jurvetson’s Obama photograph is a CC licensed photo.

The article by Lessig appears to suggest that the Fair Use Project plans to question if Shepard Fairey had used Mannie Garcia’s AP photograph or not-- or they plan to devalue Mannie Garcia's photograph by comparing it to similar photographs. Why else would Lessig be asking readers to send in similar examples? However, if that is the case the Fair Use Project will surely run into some snags in court. After all, Mannie Garcia states on his website that the owner of Danziger Projects, a gallery that represents Shepard Fairey in New York City, contacted him on January 21st 2009 in order to inform him that his photograph of Obama was the basis of Shepard Fairy’s ‘Hope’ and ’Progress’ posters. On top of that, Shepard Fairey has long suggested that the photograph attracted him because of the power it conveyed. Shepard Fairey chose Mannie Garcia's photograph out of hundreds, if not thousands, of Obama photographs online. Thus, one can assume that for Fairey this specific photograph had a lot of meaning.

On the same page Mannie Garcia states, “In a telephone conversation on the 17th of February, Shepard Fairey acknowledged that my photograph was used and that credit should have been given as such.”. It should be noted that the telephone conversation between Mannie Garcia and Shepard Fairey took place on the same day that Professor Lessig posted ‘Crowd-sourcing a “fair use” case’ on his website. This begs the question-- why would Professor Lessig suggest that Shepard Fairey did not use Mannie Garcia’s photograph or attempt to devalue the importance of Garcia's photograph within the context of the Obama posters knowing that Shepard Fairey had acknowledged the use of the photograph to Garcia earlier that day? Perhaps he was not aware of the conversation between Garcia and Fairey? Either way, the Fair Use Project is going to have a tough time suggesting otherwise.

Professor Lessig’s entry titled, ‘Crowd-sourcing a “fair use” case’ appears to be an act of desperation in my opinion. After all, Lessig calls for readers to send Obama photographs similar to Mannie Garcia’s photograph to shep_use @ Again, this suggests that the Fair Use Project may try to project the idea that Shepard Fairey used a different image all together and that the owner of the base image may never be known-- or is an attempt to devalue Mannie Garcia's photograph by suggesting that it is nothing special or not copyrightable. Either way Fairey has admitted that he used Mannie Garcia’s Obama photograph and has suggested that he chose the image because of the power it conveyed. Could it be that the individuals representing Shepard Fairey are grasping at straw?

On a side note the email address strikes me as amusing-- Shep_use? ‘Shep use’ might be the correct usage for this case because Shepard Fairey’s “fair use” of the Obama photograph was anything but fair in my opinion. It reminds one that Fairey has been exposed for copyright infringement in the past-- such as the case of Rene Mederos . In that situation Shepard Fairey settled out of court with the Mederos estate after being exposed for having used a Mederos poster for a shirt titled ‘Cuban Rider’. Perhaps Lessig and the Fair Use Project is not aware of that?
Untitled Silk-screen poster - Rene Mederos, Cuba, 1972. This double portrait by one of Cuba’s most famous poster artists depicts the revolutionaries Che Guevara and Camilo Cienfuegos as seen on the Art for a Change article. A must read!

In that situation Fairey had printed a copy of the poster from a book about revolutionary art-- the author of the book, a friend of the Mederos family, recognized the image upon viewing Shepard Fairey’s shirt design. Shepard Fairey later claimed-- in an interview with Mother Jones -- that he did not know how to contact Rene Mederos for payment-- he was obviously unaware that Mederos had passed in 1996. A simple internet search would have enlightened Fairey. Fairey stated in the Mother Jones interview, "Well, how would I ever pay this guy anyway because he's in Cuba?". (It just goes to show how much the orphan works legislation would have failed had it passed.)

From Art for a Change-- Screenshot taken from the "Bombing Science" website 7/18/2007, where the Fairey rip-off of the Mederos poster had been sold as a T-shirt.

One interesting aspect of this situation is that Danziger Projects-- the gallery that informed Mannie Garcia that Shepard Fairey had used his photograph of Obama-- has since sold limited prints of Mannie Garcia’s photograph with profit going to Garcia. Anthony Falzone-- the Executive Director of the Fair Use Project who is representing Shepard Fairey directly-- has suggested that the limited edition prints of Garcia’s photograph is proof that the Obama photograph has increased in value. The only problem with this is that the Associated Press claims to own the copyright to the photograph. It also seems just a bit staged in my opinion-- almost as if individuals who are close to the case are trying to create something out of nothing in order to support Shepard Fairey. Hopefully the judge and jury will see past this obvious ploy.

In my opinion Lawrence Lessig and Anthony Falzone should have their integrity questioned. I base my opinion on prior cases they have supported and the contradictions and hypocrisy I observe in their support of Shepard Fairey. For example, in 2008 the Fair Use Project represented the Council on American-Islamic Relations (CAIR) in a case against radio host Michael Savage of the Savage Nation. Savage's character and interpretation of freedom of speech was questioned. I question why the Fair Use Project has failed to place Shepard Fairey under the same critical scope that Savage was placed under. After all, both Shepard Fairey and Michael Savage have tried to stomp on the rights of others-- both have taken action that goes against the mission of the Fair Use Project.
That case involved Savage’s claims that CAIR had infringed on his copyright by posting excerpts of his program on the CAIR website. I think Anthony Falzone’s case was warranted in that situation. However, in a Fair Use Project write-up about the case Falzone suggests that Michael Savage lacks integrity for having tried to block freedom of speech since he makes his living from said freedom. Falzone stated:

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.”. In the article Falzone goes on to say, “If fair use protects anything, it protects the right to use portions of a copyrighted work to criticize it, so Savage lost his case quickly and decisively.”

Obviously Falzone does not feel that way about his current client. After all, Shepard Fairey has opposed creative freedoms in the past. That is why I have a problem with Anthony Falzone’s opinion in regards to the Fair Use Project supporting Shepard Fairey’s claim of “fair use” concerning the Obama photograph. After all, Shepard Fairey has revealed in the past that he is not a strong supporter of “fair use” in the first place-- if it involves an artist making a profit off of legitimate parodies of his art.

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.

In 2008 Shepard Fairey sent a cease-and-desist letter to artist Baxter Orr after finding out that Orr had made a parody of his Obey Giant image. Having viewed Orr’s parody I would say that it is “fair use” under both copyright and trademark law since by that time the Obey Giant image was known worldwide. There was no confusion about who created what-- people knew upon viewing Orr’s image that it was a parody and they knew who and what the image was commenting on. Let us not forget that Shepard Fairey has made a living off of creating parodies of copyrighted images and trademarks. However, that did not stop Fairey from claiming that Orr's image was not "fair use". Kind of reminds one of the views of Michael Savage concerning CAIR, does it not?

Baxter Orr’s image, titled ‘Protect’, criticized Shepard Fairey’s art as well as his status as a street artist. The image was quickly picked up by bloggers-- which resulted in further criticism of Shepard Fairey’s practice of “referencing” and status concerning the commercialization of street art. It was a prime example of why we have "fair use" in the first place. Apparently that did not sit well with Shepard Fairey. Fairey, as reported by the Austin Chronicle , called Orr a “mimic” and “parasite”. He did not agree that Orr’s image was “fair use”. He went as far as to suggest that it was damaging to the business aspect of his art. I would think that the Fair Use Project would have seen that as a call to arms.

The fact remains that Shepard Fairey tried to stomp out freedom just as Michael Savage had tried. With that in mind, shouldn’t Anthony Falzone and the Fair Use Project be critical of their client? Why did they extend him a helping hand in the first place concerning his past attack against "fair use"? Did they not know? If they did know I would think they would question Shepard Fairey’s integrity as they had suggested the integrity of Michael Savage be questioned. Perhaps they are just selective as far as their mission is concerned. Regardless, there is room to question the ethics and integrity of the Fair Use Project.

The key point can be found in Fairey’s reply on the Austin Chronicle. In the article Fairey states, “I have to deal with the bad end of it(copyright) sometimes. I’ve had to pay out.”-- he went on to say that the difference between him and Baxter Orr is that he will stop using an image once the copyright owner comes forward. In hindsight this opens a few questions-- why did Shepard Fairey not stick to his word concerning the Obama photograph and the Associated Press? Why did the Fair Use Project fail to give support to Baxter Orr when a famous artist trampled on “fair use“? Why is Anthony Falzone and Lawrence Lessig defending someone who trampled on "fair use" just over a year ago? The contradictions and hypocrisy is alarming. Where is the integrity?

Back to the Lessig article-- Professor Lessig’s entry closes with the following words, “please send any favorite examples of photos used as visual references for other works of art. We lawyers don't know much, but we can learn pretty quickly. Thanks for any help.” Help? It is easy to rattle the sabers by making this case into a 'media bully vs. poor artist' scenario. However, if we place the Associated Press aside and consider Shepard Fairey's past thoughts concerning "fair use"-- as well as the contradictions of the Fair Use Project-- it is just as easy to view this case as just another attack against the rights of the majority of living artists. One could also say that it is an attack on photography as a whole.

When evaluating Shepard Fairey's case against the AP remember that it is supported by individuals who have a vested interest in artists such as Shepard Fairey. Remember that it is supported by individuals who have strived to make it so that artists would be unable to challenge copyright infringement in a court of law as they can today. After all, an extended view of "fair use" implies that. Remember that only a small percentage of visual artists benefit from the extreme interpretations of “fair use” that Lessig and the Fair Use Project support.

The majority of visual artists have a lot to lose if “fair use” continues to be supported in an extreme manner. Should the majority of visual artists sacrifice their rights so that a relatively small number of visual artists can create with total disregard for the works of others? I don't think so. Should we devalue the legal aspect of works of art so that forms of art that rely on extreme interpretations of "fair use" can be secured? I don't think so. After all, it is not just artists like Shepard Fairey that we have to look out for-- I'm certain that many corporations would love it if visual artists were unable to legally defend the ownership of their work.

In fact, I would go as far as to say that some of these individuals would like nothing more than to see copyright made void. In my opinion, cases like this are nothing more than a clever ruse to take away from the rights of all artists. Don’t be fooled by their battle cry of upholding creative freedom. In reality these individuals stand for concepts that put your art and your business at risk. Isn't it hard enough for visual artists to protect their art as it is?

With the technology of today someone like Shepard Fairey can print off and use an image of an oil painting that may have involved months of work in the studio of some yet to be known artist. That said, the beauty of copyright protection is that said artist can defend his or her art knowing that he or she will be acknowledged. That is why copyright is important. Unfortunately, there are key players who hope to destroy that. They strive to take away from your hard work, from your business, and from your dignity. They will do this while waving the banner of creative freedom.

In conclusion, my opinion is that Lawrence Lessig, Anthony Falzone, and Shepard Fairey are going to need a lot of hope in their case against the Associated Press-- they are also going to have to defend some of their past positions, statements, and lack of action. True, “fair use” is needed. After all, artists-- such as Baxter Orr-- have used “fair use” as it is intended. “Fair use” is limited for a reason. If visual artists allow “fair use” to be extended in the extreme they can kiss the business aspect of their art, as well as their legacy, goodbye. If we stand for this I'm concerned that integrity will truly be lost.

Links of Interest:

Public Knowledge and the Orphan Works Bill -- Myartspace Blog

Brad Holland Responds to Public Knowledge -- Myartspace Blog

Fair Use: Shepard Fairey and Baxter Orr

Take care, Stay true,

Brian Sherwin
Senior Editor
New York Art Exchange


Anonymous said...

You are dead on with most of what you have said. But I don't agree with you 100% because I think that fair use should not apply at all to living artists. Artists should not be punished for being successful. And it is not right for someone to make a profit off of a successful image just because they made a parody of it. I don't think less known artists are the only people being ripped off. It is causing a lot of division in the art community.

Ron said...

How do we know if the AP owns the photograph? Where is the proof!

Razor said...

You need a reality check buddy. Shepard Fairey is a highly skilled artist. He is one of the greatest artists we will see in our lifetime. Baxter Orr is a leech who has never had an original idea in his life. He took a great image and made it suck. You can't compare these two guys because there is no comparison. Get off your rock.

LAZ said...

Shepard Faireys career is over if the art folks rally against him like they did Orphan Works. This legal jumble is hated on all the art forums I’ve been on. Lotta people call him a hack.

Anonymous said...

Copyright is getting complicated.

Anonymous said...

I'm withholding judgment on Fairey for now, but I will say that I'm not entirely sure Lessig's plan is to try and argue that Fairey may have have used a different photograph; rather, I think he will say that the specific photograph Fairey used may not matter. The piece is, he would argue, transformative conceptually because it its tranformative material, and the "image" of Obama as Hope is only rendered with the silk screen (not the original photograph, which is banal at best - not true of Fairey's work).
I don't know if I buy this argument, personally, but knowing Lessig (personally), I'm pretty sure his counter to AP would be a little more than a bold-faced lie / suggestion. The above seems more likely.

Kathy said...

Not sure you saw my tweet this morning, but Artist Shepard Fairey and photographer Mannie Garcia weigh in on the lawsuit over the iconic HOPE poster , today on NPR's Fresh Air.

Not sure if it is too late to send this link to Terry Gross.

Caraleisa said...

GREAT article, Brian. Well researched and excellent presentation of the facts. Fairey wants fair use when he wants it, and copyright protection when that suits him. Artists (and writers, etc) have fought long and hard for inherent copyright protection and we finally got it. It's ironic, indeed, that now there are artists who are apparently incapable of creating original work and need to derive not only inspiration but the literal work from another artist.

We need to band together to keep what semblance of integrity there is in the art business.

Thank you for a superb article.

Anonymous said...

What you said on NPR is true. It is easy for people to quote Andy Warhol and Roy Litchenstein when they are no longer here to state their opinion. The images they used in their art were iconic from the start. They did not use images that the public did not realize. Pop Art was about making that connection. This guy does not make that same powerful connection with his work. It is an insult to compare him to Andy or Roy.

joy said...

this post is a load of bollocks.

here said...

great article, thank you! one point you might want to reconsider though is lessig's reasoning for obtaining similar images. rather than searching for a different photograph to be "the one" which fairey used, i think its much more likely that lessig wants a collection of similar images in order to represent commonalities that would thusly make any single image more unique and 'copyrightable'.

joy said...

Pure Bollocks; not to mention: that you would question Lessig's integrity and not AP's is truly bone-headed Brian. You need to do some research and reading.

Balhatain said...

Joy, I’m not a fan of the AP. However, I’m not going to say that what Shepard Fairey did is OK just because the AP is involved. Copyright is copyright-- if we can’t accept that the big boys have copyright protection why should we expect it for our own images? “fair use” is limited for a reason. If you extend it too far the end result will make copyright void. I can’t accept that. Some of Lessig’s connections make me wary.

Balhatain said...

Joy, thanks for the 'kind' messages you left me on Facebook. Give my regards to Susan Meiselas-- are you still using her images without permission? Perhaps you are the one who should do some research and reading.

joy said...

you really don't understand what you're talking about and this post proves it; as a blogger at least you should concern yourself with fair use, since you, like all of us, benefit by it. you are doing me and everyone here a disservice by repeating misinformation.

I've since removed you from my FB pages.

Balhatain said...

Joy said, "I've since removed you from my FB pages."

Actually you removed me before I replied to you on this blog. I would have thought you would handle opposing viewpoints better. I suspect that you removed me after leaving your snarky remarks.

I figured you had a sense of humor since you suggested on FB that I need my "head examined". I guess I was wrong. You need to realize that there are MANY artists and photo journalists who don't agree with your interpretation of "fair use". Your situation with Susan Meiselas reflects that.

I'm not against "fair use". However, I do think it should be limited as far as visual art is concerned. There is a difference between covering art news and creating works of art for profit.

You can't deny that copyright is under attack. It won't be long until OW legislation returns with the same content that would have greatly harmed living artists as far as the business side of art is concerned. Give me one reason why it would be ok to remove "damages" from the table in cases involving copyright infringement?

I'm not going to throw my support to Shepard Fairey just because he is going against the AP. I don't cast my values aside so easily. After all, Fairey's history informs me that he could have ended up using any image with total disregard for copyright. Rene Mederos comes to mind. If it takes the AP to teach him a lesson-- so be it.

You know, if copyright is destroyed the art world will crash-- at least for artists who are new to the market from that point on. In that scenario everyone will start to create works based on whatever paintings, sculptures, photographs-- what have you-- that happen to be popular at that specific time. Art would no longer advance in my opinion.

In that scenario I'm talking thousands of close to identical works of art entering the market at once because one lucky person had success. I'm talking line for line copies if copyright no longer had real meaning and infringement only involved a small fee for compensation. In time galleries would no longer be valid. Why buy a $10,000 painting when you can buy the same one at Walmart for $100? Is that what you want?

Enough with my surreal rant-- just know I allow opposing viewpoints on this blog. After all, I interviewed Alex Curtis from Public Knowledge. I recall inviting you to give your viewpoints. I've even offered Yosi Sergant the chance to stress his view of this issue. You are still more than welcome to do so. If Shepard Fairey contacted me tomorrow asking to give his side of the story I would give him a shot.

Anonymous said...

What I wonder is this: if we accept your logic, can either of the two photographers (the one that took his picture first) be said to infringe on the other's copyright? Yes, he took his picture himself, but Fairey also painted his picture himself, didn't he? So it appears that there can be a lawsuit between the two photographers, which would be completely ridiculous.

posterboy said...

As the person who asked Fairey to pay up on the Rene Mederos t-shirt, this case makes me very nervous. First, I think it's important to separate the ethical from the legal issues. The way my interaction with Fairey is described - "settled out of court" - implies that it was a legal matter, but it wasn't. I never threatened legal action, he never countered in kind. I raised my criticism on ethical grounds, and for whatever reason he handled it quickly and (in my opinion) fairly. That being said, I've also been very critical of his appropriation practice, and I think that as a test case for fair use this one's a real stinker. I support fair use, and in general copyright law has been heading the wrong way, enhancing control by major corporations like Disney, and Sony, and...the AP. I'm conflicted as to how to balance these contradictions.

Balhatain said...

I support "fair use" as well. What I don't support is extreme interpretations of “fair use” that will take away from an artists ability to defend his or her copyright.

Due to the confusion about “fair use” you end up with people who think that it is ok to create from protected works of art as long as they change a certain percentage of the image-- which is simply not true.

There is so much confusion about "fair use". For example, I took part in a forum debate about "fair use"-- a person in the debate suggested that anything uploaded online is "public domain". She honestly felt that any image online is free to use and that copyright is void.

Side note to everyone-- if you want to start a smear campaign against me do it elsewhere.

Anonymous said...

Fair use is a mess. One one side there is a need for artists to be able to comment on what they see. On the other there is a need for artists and journalists to have rights to how their work is used. Both viewpoints step on toes. That is why there should be balance.

Anonymous said...

I don't see why you aren't allowing comments which attack your position to appear anymore on this page... what you may see as a "smear campaign," others see as a valid argument. In the past you have boasted that you post everything, unless a threat is made against someone personally. Does that include threats to your ego, Brian, or did the rules change?
And before you accuse others of "smearing" you, are you not yourself engaged in smear campaign against Lessig by publishing a negative article in your blog largely based on speculation over real evidence?

Balhatain said...

Anon, I allow comments that oppose my position all the time. I even post articles by guest writers who oppose my position. I made that statement because an anon decided to comment about my daughter followed by two comments claiming that I’m the only person with a negative view of Shepard Fairey-- which used some of the same language as the SuperTouch article about Mark Vallen.

As I've said before, a post that is hostile has a better chance of being published if there is a name attached to it. My name is obvious, I'm Brian Sherwin. I don't care who knows my opinions on matters such as this. Who are you? Why don't you show the courage of your convictions and state your identity before questioning my integrity.

As for Lessig, the evidence-- as I see it-- is that he is calling the photograph by Mannie Garcia “beautiful” while at the same time trying to devalue its worth-- regardless of the fact that Fairey has made it clear that the photograph had an impact on him. I’m sorry, but Lessig can’t tip-toe around that.