Wednesday, March 25, 2009

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 4

Part 1
Part 2
Part 3


Copyright is very important concerning the market and technology of today. People talk about how “fair use” needs to be extended due to the technology of today-- they feel that an extreme interpretation of “fair use“ is needed to secure creative freedoms. They often forget to mention the ease in which an individual can make reproductions from images found online today and the fact that many of the artists advocating for extended “fair use“, such as Shepard Fairey, profit from the random images they find online.

They are waving the banner of creative freedom when in reality the focus is on profit and profit alone-- their profit. Profit with total disregard for the profit and market of their peers. That is why Shepard Fairey is a target for my criticism-- and why he will continue to receive criticism until he takes responsibility. Unfortunately, he tends to use his charity work as a shield or resorts to having his friends rattle sabers when faced with criticism.

The fact remains that a skilled artist can use computer programs to alter an image they found online in order to suggest that it is his or her own-- or he or she can simply print off copies of the image in order to make changes to it. That is not to suggest that artists using these programs are not artists or that certain aspects of computer based art is of no value. It all comes down to responsibility and respect for other artists.

Shepard Fairey, to me, represents artists who display neither. Those who support his extreme view of “fair use” either don’t care about how hard it is for artists to establish a market for their work or they embrace his practice within their own methods of artistic creation involving works for profit.

My issue with extended views of “fair use” is that an emerging artist can spend months or years working on an oil painting or sculpture only to end up with another artists using an image of that painting or sculpture for a project that may have only taken days to create. In a sense, you could say that the artists working in traditional mediums need to have their work protected from the technology of today. Telling those artists not to upload images online is not the answer.

All artists deserve to gain exposure online knowing that their work is protected by strong copyright. There is room for “fair use” as long as it is limited and does not destroy or burden the business of emerging artists before they have a chance to rise on their own. Unfortunately, copyright is constantly under attack.

As mentioned earlier, more artists than ever are making a living or part of their living from selling their art. These artists need to know that their images are protected. Their collectors need to know that their investment is secure. In other words, artists must be able to defend the exclusive rights to their art-- to their business and legacy. If Shepard Fairey wins against the AP it will be yet another blow to artists who desire to embrace the market aspect of art. Throw the romantic image of 'the artist' aside! The idea that art should not involve business is a fantasy when one consider the art market of today-- Fairey knows this. So do I.

That is why so many art organizations and individuals have stood against orphan works legislation in recent years due to the fact that if passed the legislation would have greatly reduced the ability of living artists to protect and defend their art in court. Those same people should stand against artists like Shepard Fairey who fly false banners of ‘artistic freedom’ and ‘free expression’ during legal cases involving copyright infringement.

After all, the artists who cry ’artistic freedom’ and ’free expression’ when exposed for copyright infringement often do it in order to protect their profit rather than the way in which they work. Look at Shepard Fairey’s lawsuit against the AP-- it makes it clear that he desires to protect the profit made from the image as well as future profit. The issue is not necessarily about the AP-- the fact remains that Fairey could have done this to a fellow artist as he has done in the past.

Again, if the AP loses to Shepard Fairey it will mean that the door will be open further when he decides to ‘reference’ artwork by an emerging artist. 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. I can't stress this enough!

I realize that copyright issues can quickly become a debate between freedom of speech/expression and control. However, suggesting that supporters of strong copyright are attacking creative freedom is not exactly fair considering that the issue of copyright infringement does not become an issue until price tags are involved.

If an artist wants to explore the work of another artist directly, fine-- it becomes an issue when the artist attaches a price to the ‘new’ image or produces prints of the ‘new’ image for profit. We would not be facing this debate if it were not for the fact that some individuals-- Shepard Fairey for example-- think that it is acceptable to profit off of the hard work of others. His case against the AP is not about creative freedom or any of the other similar rhetoric spewing from his lips-- it is about his desire to profit off of others without consequence.

Securing creative freedom is one thing-- the desire to legitimize irresponsible and disrespectful appropriation for profit is another. Creative freedom is not under attack-- the rights of artists to secure their artwork and images of their artwork by copyright is. The ability for artists to protect the market for their art is under attack. Those on the other side of the aisle continue to wave the banner of creative freedom-- I wish they would just come out and say what their battle charge is really about. They want to be able to profit off of the works of others while at the same time protecting their ‘new‘ images from “profiteers“, “mimics“, and “parasites“. They want the best of both worlds. Point that out and those artists will often flee from a debate on this issue.

Think of it this way-- many of the artists who support an extended view of “fair use”, such as Shepard Fairey and Joy Garnett, are the same artists who create art utilizing the work of others for profit. They are represented by galleries-- they know the business side of art. So are they really champions of freedom and free-culture? Or are they just protecting their own business by supporting standards that would make it harder for other business-minded artists to protect their images from their use? If it is not about profit you would think they would be more than willing to 'spread the wealth' with the artists and photographers they 'reference'.

Don’t get me wrong, “fair use” is important-- however it should not be extended to the point that a widely known artist can base his or her career working directly from artwork by relatively unknown artists-- and other individuals-- for profit. This is why I have concerns about Shepard Fairey and what he represents. The contradictions and hypocrisy is tiresome. I’m not attacking creative freedom with my opinion-- I’m standing up for what the majority of artists have fought long and hard for. Don’t confuse creative freedom with the need for some artists to profit off of other artists.

To put it bluntly, it is going to be horrible if artists allow their rights to be stamped out in the name of creative freedom when the artists leading this charge, such as Shepard Fairey, are thinking more about their bank accounts than real creative freedom. Since when did creative freedom involve the need to profit from others? Are we defining creative freedom by dollar signs now? Let us not confuse the two! We should examine what Shepard Fairey is really saying when he uses these powerful words-- “creative”, “freedom”, and "expression".

In my opinion, he is seeking the freedom to be creative with the work of other living or recently deceased artists-- and others-- in order to profit without consequences. He desires the freedom to go against their intentions and legacy while expecting others to ‘obey’ his intentions and legacy. He is no different than the people who strongly supported aspects of the recent orphan works legislation which would have harmed the ability of living artists to protect their art. It is as simple as that. If we define ‘artistic freedom’ and ’free expression’ with a dollar sign the arts are truly doomed.

I must stress this-- If Shepard Fairey/ Obey Giant Art Inc. wins against the AP it will set a precedent that will make it easier for individuals and corporations to abuse the copyright of visual artists and other creative professionals. Make a stand-- disobey Shepard Fairey. Let people know that not everyone in the global art community supports Shepard Fairey's extreme interpretation of "fair use" for profit. Think of the past allegations that have shadowed his career-- think about what a victory against copyright could mean for your career. Support the exclusive rights that the majority of artists have fought hard for.

This is a 4 part rant:

Part 1
Part 2
Part 3
Part 4

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
Myartspace Blog on Twitter
www.twitter.com/myartspace_blog

10 comments:

Anonymous said...

Awesome, Brian. I've sent an email you may find interesting to info at catmacart dot com. Please take a moment to read it when you can; it's regarding the above issue you analyze so well. Thanks!

JafaBrit's Art said...

Just want to say thanks for taking the time to analyze this issue and be a champion for the rights of artists of all genres.

Seth Hanson said...

Why do you think that Shepard Fairey is a money hungry artist? And that all he thinks about is money and making money and how he can screw over other artists to make money?

The world is changing all the time today, business, art, music, newspaper models are all changing. Don't you think that because of this, new and awesome art will come out of it? Or just staying in the past and not changing is the way to go.

Balhatain said...

Seth Hanson said, “Why do you think that Shepard Fairey is a money hungry artist? And that all he thinks about is money and making money and how he can screw over other artists to make money?”

Seth, there is nothing wrong with an artist being money hungry nor is there anything wrong with an artist being successful. However, there is a problem when an artist achieves money and success from the backs of others hoping that no one will find out.

For example, Fairey did not mention the influence of Rene Mederos until after he was exposed. He settled with the Mederos estate in that situation. He ‘forgot’ or ‘did not know’ that Mannie Garcia was the photographer even though he new it was an AP photo.

If you think of Obey Giant Art Inc. as a corporation-- than yes, I have a huge problem with him exploiting the work of other living artists and other creative professionals. If we allow Obey Giant Art Inc. to do that we might as well allow Walmart to do the same.

Seth Hanson said, “The world is changing all the time today, business, art, music, newspaper models are all changing. Don't you think that because of this, new and awesome art will come out of it? Or just staying in the past and not changing is the way to go.”

Staying in the past? Did you read Fairey’s statement? He is the one using the past to defend the ‘here and now’. Glad you brought that up. If you are concerned that we are ‘staying in the past’ I would think you would question the fact that Fairey has taken works from the past in order to pass them off as his own. In some cases he has made few changes aside from adding his trademark to the image.

Is it ‘new’ to take an image that is over 70 years old and pass it off as something “awesome that you created”? Is that the forward thinking you are looking for? Is it “new” for Shepard Fairey to use art rhetoric that is 50 to 100 years old in order to defend his work in the ‘here and now’? Food for thought.

Remember that in the past artists had no where near the control over their market as they do today-- which is one reason why so many artists from the past ended up exploited. Copyright places the power in artists hands.

Honestly, how many artists would try to make a living off of their art if anyone-- individual or corporation-- could use their works without permission or compensation? Would Shepard Fairey close Obey Giant Art Inc. if every clothing business was allowed to use his images without permission or compensation? Walmart could produce the clothing cheaper. If Fairey wins against the AP it will set a precedent that could lead to such abuse.

There are new and exciting works all around us that don’t rely so heavily on the past or on using the work of others so directly. No one can escape influence. Art will continue to advance as it has done. You want art to continue forward? If so, support copyright. Copyright does not block artistic freedom or free expression-- it prevents people from taking advantage of the hard work of others.

If copyright is destroyed I promise you that this new age of art that is strengthened by the internet will cease to exist. You will see artists forced back into the privacy of their studios if we allow that to happen.

Seth Hanson said...

"For example, Fairey did not mention the influence of Rene Mederos until after he was exposed. He settled with the Mederos estate in that situation. He ‘forgot’ or ‘did not know’ that Mannie Garcia was the photographer even though he new it was an AP photo."

Why does an artist have to say who they got the inspiration from? Where is your art? Where does it say anywhere that Mr. Fairey knew that it was an AP photo?

"If you think of Obey Giant Art Inc. as a corporation-- than yes, I have a huge problem with him exploiting the work of other living artists and other creative professionals. If we allow Obey Giant Art Inc. to do that we might as well allow Walmart to do the same."

We/You already do let walmart do the same, and ikea and target and urban outfitters and the list goes on and on and on. They steal work all the time, they use work all the time. They borrow work all the time.

I talk about past work, because everything is recycled this day and age. There are no new ideas, only recycled ones. We are in the recycle generation.

I disagree that this will be the end all of end all's on artists rights. I do believe that Mr. Fairey is doing something good for young up and coming artists in this day. So if the AP wins, all of the artists who made an obama artwork will in turn be getting sued by the owners of the pictures that were influenced by them.

Balhatain said...

Seth Hanson said, “Why does an artist have to say who they got the inspiration from? Where is your art? Where does it say anywhere that Mr. Fairey knew that it was an AP photo?”

Seth, Fairey has said on NPR and elsewhere that he knew from the start that it was an AP photo. He claims that he did not know who the photographer was though-- which I find odd because the AP almost always has the photographer listed.

The fact remains that he could have contacted the AP, found out who the photographer was, and looked into licensing-- something any first year illustration student would have known to do.

Again, there were sites with free photographs of Obama that Shepard Fairey could have used. He could have also received a photograph from the Obama campaign directly through Yosi Sergant-- a media consultant who had worked for the Obama campaign for six months before leaving to work alongside Shepard Fairey.

Yep, the grassroots movement that Shepard Fairey started was not exactly grassroots-- it had major help from Yosi Sergant and Evolutionary Media group-- just so you know. I can back everything I say by articles.


Seth Hanson said, “We/You already do let walmart do the same, and ikea and target and urban outfitters and the list goes on and on and on. They steal work all the time, they use work all the time. They borrow work all the time.”

Glad you mentioned Urban Outfitters. You do know that Obey Giant Art Inc. sold some exclusive rights to the Obama poster image to them during the campaign? Some sources state that over 60,000 units were sold. That is a lot of profit. Glad you know, or think you know, where I shop.

I’ll tell you this, as an artist I would not create designs for clothing companies that have been exposed for running sweatshops. Especially if the message I convey in my work is against said abuse. Do some more research my friend.

Seth Handson said, “I talk about past work, because everything is recycled this day and age. There are no new ideas, only recycled ones. We are in the recycle generation.”

There is nothing wrong with being inspired. Copyright does not halt the advancement of art-- great art has been created since current copyright law came into action. Also, an artistic style can’t be copyrighted-- so it is perfectly acceptable to paint in a similar way as those who came before you.

The problem is when people ‘copy’ the look and feel of an image. That said, making a Xerox copy from an art book or using an image you find online directly within the work only to claim the work as your own is not acceptable in my opinion.

Look up how little Fairey changed the image by Rene Mederos and you will see what I’m talking about. The Mederos poster was still under copyright. Fairey has done the same with images that are in public domain-- which is acceptable even if it is not exactly ethical for him to pass them off as his own.

Side note: One thing people need to remember when using an image of a work that is in public domain is that the image of that work, the photograph of that work, may actually be copyrighted. Thus, just because the Mona Lisa is within public domain does not mean that an image you find online of the Mona Lisa is. This is one reason why many musuems will not allow photographs. True, it is to protect the art, but it is also to protect their investment.

Seth Hanson said, “I disagree that this will be the end all of end all's on artists rights. I do believe that Mr. Fairey is doing something good for young up and coming artists in this day. So if the AP wins, all of the artists who made an obama artwork will in turn be getting sued by the owners of the pictures that were influenced by them.”

Seth, again… Shepard Fairey told US News at one point that he was going to “go after” artists who make similar versions of his Obama poster. He stated that he would force them to give their profit to the ACLU. So it is very amusing that Shepard Fairey is now trying to rally support from the very artists he once threatened.

Actually, you can’t really get hit with infringement unless profit is involved or you have made mass physical copies of the image in question. Most of the artists who made art in support of Obama did not profit off of their work. They simply displayed it online in order to show support.

Thus, if anything they would be asked to take the image offline. However, it is rare for that to happen. Again, copyright does not harm artistic freedom or free expression as Shepard Fairey would have you believe.

If Shepard Fairey wins against the Associated Press it will set a precedent that others will use in court to legitimize their infringement. Thus, it will be a major blow to the rights of the majority of artists if Fairey wins.

Also, I would like to point out that Shepard Fairey seems to create fail-safes for himself by using his fans as a shield. For example, in Boston he is blaming the illegally placed works on his fans. He suggested that fans could have put up the illegal work after downloading materials available on his site. Now he is apparently suggesting that anyone with his poster as an icon will be sued if he loses to the AP.

First, that is simply not true. Second, it is cowardly of Shepard Fairey to continue using his fans and the charity he has done as a shield instead of accepting responsibility for his own actions.

Christi Nielsen said...

My favorite part. So true...
"However, suggesting that supporters of strong copyright are attacking creative freedom is not exactly fair considering that the issue of copyright infringement does not become an issue until price tags are involved."

I'm not sure I buy the argument that he made profit even though it went to charity/campaign. If that's the case, then one would have to say that non-profits raising money for charity make profit.

But I agree with everything else you said. At first I was wondering where you were going since appropriation is such a major part of the art world. But once you went into more detail about the difference between appropriating something unknown and something iconic, it really made sense.

Thanks much for doing this. I'm sending it to every artist I know.

Balhatain said...

Christi Nielsen said, “I'm not sure I buy the argument that he made profit even though it went to charity/campaign. If that's the case, then one would have to say that non-profits raising money for charity make profit.”

Thanks Christi. Allow me to explain my opinion further. Obey Giant Art Inc. is not a non-profit. As far as I know Fairey was not working directly under the umbrella of a non-profit. Thus, it was business as usual aside from the fact that he donated the profit after receiving it or invested the profit in order to produce more materials.

I read that both he and his wife gave the full amount allowed to the campaign. So it was donated in their name from the profit earned-- which shows that at the heart of it profit was indeed made even if Fairey did not interpret it as profit. It would have been best for him if all profit had went directly to a non-profit instead of going through his company first.

Considering that he was working alongside Yosi Sergant and others I don’t think there is an excuse for him not knowing / understanding.

Balhatain said...

Furthermore, what concerns me about this case is that if Fairey wins it will establish a precedent that will harm all artists. If he wins against the AP it will set a precedent that will make it easier for individuals and corporations to abuse the copyright of visual artists.

Why? Because technically the case involves both Fairey and Obey Giant Art Inc.-- which is a corporation no matter how you try to slice it. Thus, a win for Fairey and Obey Giant Art Inc. will be a major blow to copyright as we know it. It will set a precedent that other individuals / corporations will no doubt bring up in order fight off copyright allegations in the future.

The word must be spread about this-- people need to understand what exactly is at risk. As I’ve said before, pick your battles. I'm not saying that the AP are all around 'good guys' either. I just think that if an artist/corporation establishes this precendent in court it will greatly harm artists rights and copyright in general.

Thus, I'm not surprised that the Fair Use Project has jumped on the case since Falzone, Lessig, and others are advocates for extended interpretations of "fair use" which would, in my opinion, pretty much destroy the protections artists have under copyright.

Artists have fought for decades, if not centuries, to have the rights they enjoy today. It will be sad if those rights are destroyed under a false flag of 'artistic freedom' and 'free expression'. Especially since this, at the core of it, is about profit-- one artists desire to profit off of anyone he chooses without legal consequences.

Anonymous said...

Thought everyone should know that Yosi Sergant has been appointed to the Office of Public Engagement at the White House. I guess it pays off to create a mock grassroots movement. This corporate PR firm pig has stolen history!