Wednesday, March 25, 2009

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on Part 1

Shepard Fairey has addressed some of the allegations against him by posting a statement on his website. The message, titled ‘The AP, OBAMA & Referencing’, is an attempt to challenge the allegations against him concerning the AP. Fairey’s message is also an attempt to connect his use of the Obama photograph to art history. I warn you that this will be long-- I can't help it. Someone has to say what needs to be said and far too many people are worried about dents in popularity if they speak out. I don't care who I'm in favor with-- I know where I stand.

In the message Shepard Fairey declares that he is fighting against the Associated Press in order to “protect the rights of all artists”. Thus, his message is also an attempt to rally support from the visual art community. In other words, Shepard Fairey is attempting to say a lot with what little he is allowed to say due to the case. Unfortunately, it is what he does not say that should alarm the global visual art community. WAKE UP!

To be fair please read Shepard Fairey’s message in its entirety in order to draw your own conclusions. Then, by all means, read my opinion and see where you stand. Before I go further I must thank Qi Peng and Marc Schiller-- recent debates with these two individuals on Twitter spurred me to investigate Shepard Fairey further.

Done? Good. Throughout the message Shepard Fairey makes bold statements about ’artistic freedom’ and ’free expression’. He suggests that all artists will lose some of their rights if he loses against the Associated Press over the issue of copyright infringement. My take is that artists stand to lose more if Shepard Fairey wins his case against the Associated Press.

My opinion is that if the AP loses to Shepard Fairey it will mean that the door will be open further when Fairey decides to ‘reference’ artwork by an emerging artist or any artist that is not widely known. If he wins against the AP it will set a precedent that will greatly harm the ability for all artists to defend their copyright in court.

Fairey stated, “The Garcia photo is now more famous and valuable than it ever would have been prior to the creation of my poster. With this factor in mind, it is not surprising, that a gallery in NYC is now selling the Garcia photo for $1,200 each. As I understand it, Garcia himself did not even realize the poster was created referencing his photo until it was pointed out to him a full year after the poster came into existence. Mannie Garcia has stated in the press that he is an Obama supporter pleased with the poster result."

Shepard Fairey failed to mention the name of the gallery in his message. The gallery is Danziger Projects. The owner of the gallery, James Danziger, contacted Mannie Garcia on January 21st 2009. Danziger informed Garcia that his AP owned photograph had served as the basis for Shepard Fairy’s “HOPE” and “PROGRESS” posters. Fairey failed to mention that Mannie Garcia has stated that he does not like it when photographs are "ripped off"-- he has said that Fairey's Obama poster is a special case. Fairey also failed to mention that the “gallery in NYC” has represented some of his own artwork in the recent past.

I have to agree with Shepard on this one-- I doubt he was surprised at all that Danziger Projects is now selling prints of the photograph for $1,200. Just as I’m sure that Anthony Falzone was not surprised when he included the sales at Danziger Projects in Fairey’s preemptive lawsuit against the AP in order to ‘prove’ that the market for the photograph has increased due to Fairey’s use of the image. Take that for what it is worth…
Fairey states, “I did not create the Obama poster for financial gain. The poster was created to promote Obama for president, and the revenue from poster sales was re-invested in more posters, flyers, stickers, etc.., and donated to charity, including the Obama campaign.”

Unfortunately, Shepard Fairey failed to work under the umbrella of a charity group. In most cases if someone desires to raise money for a cause they will do so in direct partnership with a non-profit. The non-profit will handle the money instead of the individual-- in this case Shepard Fairey. My understanding is that Fairey handled the majority of the profit directly and then allocated it as he wished. Thus, Fairey did profit.

Think of it this way-- if you donate your entire paycheck to a cause does that mean you did not profit from your employer? No. You made profit-- you earned your paycheck-- you just decided to do a great deed with that profit. My point being that the money Shepard Fairey earned from his Obama prints and Obama merchandise is profit no matter how he attempts to slice it.

Fairey states, “A free download of the Obama image was available on my website, which should provide further evidence of the desire to disseminate the image, not to benefit financially.”

Unfortunately, Shepard Fairey failed to mention that he often has free downloads available on his site-- he also makes sure to have copyright information listed on every page of his site. Including the page where the downloads are offered. He also fails to mention some of the veiled legal threats he made in 2008 concerning artists who made parodies of his Obama posters. In fact, in one article he suggested that after the campaign he would go after ‘bootleggers’ and other who profited off of the image or variations of the image.

Obviously Shepard Fairey was interested in profit and in silencing those who referenced his poster for their own form of social commentary. One could say that though he may not have put any of the profit from the image in his own pocket he most certainly did want to secure his investment in the image.

This is a 4 part rant:

Part 1
Part 2
Part 3
Part 4

Take care, Stay true,

Brian Sherwin
Senior Editor
Myartspace Blog on Twitter


Anonymous said...

All art he makes is protected by copyright, all art he steals to make his art has no right to have a copyright.

The irony.

Anonymous said...

i'd like to commend this dissenting opinion by Judge Kozinski of the 9th Circuit to you — it's the best articulation of the need for a robust public domain i've ever read.

oh, and to the commenter above — you're assertion couldn't be more wrong. See, e.g., using fairey's image w/out altering it for a cause fairey doesn't support — and he approves of it.