Thursday, February 05, 2009

Art Law Professionals weigh-in on Associated Press Copyright Infringement Allegation Against Shepard Fairey.

A comparison showing Mannie Garcia’s photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters. The portrait of Obama by Shepard Fairey is a stencil portrait. Fairey created a stencil over a scanned version of the photograph that was slightly tilted according to various articles.

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.

Jane Ginsburg, a law professor at Columbia University who specializes in copyright cases, has stated, "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage,". Ginsburg does not think that Fairey has a valid fair-use claim and has stated that he should have at least credited the AP.

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,

Brian Sherwin
Senior Editor
New York Art Exchange


Bellevue Fine Art said...

Associated Press, like Rupert Murdoch, is the scourge of the planet. Did you notice that AP wants compensation, but the original photographer will see none of that?

This isn't a win for copyright, it's a blow to freedom of expression. With fewer and fewer news agencies, we're handing over cultural icons and political expression to the very people who shouldn't own it. You and your copyright campaign are a disgrace.

Balhatain said...

Bellevue Fine Art said, “Did you notice that AP wants compensation, but the original photographer will see none of that?”

Hmmmm Bellevue Fine Art is owned by Scott Moore. Scott, when the photographer was the center of the controversy you ranted about how he had no rights to compensation in the first place. Are we to assume that you are now showing support for Mannie Garcia when before you suggested otherwise? You lack integrity sir.

Bellevue Fine Art said, “This isn't a win for copyright, it's a blow to freedom of expression. With fewer and fewer news agencies, we're handing over cultural icons and political expression to the very people who shouldn't own it. You and your copyright campaign are a disgrace.”

Scott, freedom comes with restrictions. True, in the United States we have great freedom, but that does not mean that you are free to do anything you wish. Don’t mistake freedom for anarchy. The same can be said for art in that we are free to express ourselves in anyway that we see fit as long as it does not conflict with certain restrictions. Willful copying of an image that does not fall under fair use is just one of those restrictions.

True, I would have rather seen the photographer take action against Shepard Fairey-- Just as I’m happy that Patrick Cariou is upholding his rights against Richard Prince and the Gagosian Gallery. Where were you when Baxter Orr was sent a cease-and-desist letter from Shepard Fairey after making a parody of Fairey’s iconic poster? That poster IS iconic-- Orr was working within fair use in the proper manner -- people knew what Orr was commenting on. The photograph by Mannie Garcia is not iconic-- it did not stand alone as an image that the general public is aware of-- nor was the poster by Rene Mederos that Shepard Fairey “referenced” in 2007. The Mederos issue was settled out of court.

People did not make the connection between Fairey's posters and the AP owned photograph because Fairey failed at creating a dialogue-- that is what happens when you try to use fair use on your own terms. People should have been able to make the connection between the two images on their own if fair use had been used in the way it is intended.

Also, if Fairey honestly worked within fair use he would have had no problem mentioning who the photographer was and where exactly he obtained the photograph. Instead, it took a scandal to get any words from him on the issue. One can only assume that he did not want the connection to be made between the origin of the photograph and his posters-- which defeats the intention of fair use!

If it takes the AP to stress the point that copyright should be protected and that people need to have a better understanding of fair use as far as visual art is concerned -- so be it. If it helps to ward off people from trying to take advantage of artists like Rene Mederos-- so be it.

Bellevue Fine Art said, “You and your copyright campaign are a disgrace.”

If I am a disgrace for upholding copyright and knowing what exactly fair use is and how it should be used… well, I guess you think that thousands of artists and over 80 arts organizations are a disgrace as well. If this issue helps to make copyright and fair use more clear I think it is a good thing.

Anonymous said...

People are outraged because the same thing that happened to the music industry is now trying to happen against the visual art industry. Contrary to popular belief for many of us art is a business. We create out of passion and if we can profit from it thats good. But can an artist profit from hard work and dedication if an artist like Shepard Fairey can take from that work and do what he sees fit to it for profit while holding on to a fragile foundation of fair use. If we follow Fairey's idea of fair use all images would be up for grabs. You nailed that good.

Since he donated over $400,000 to the Obama campaign from his profits selling the posters I hope that he will have to give $400,000 to the AP if indeed they are the copyright holder. Shepard claims that he has not made millions from his art so I guess that can be tested if he is forced by a judge to give AP all profits.

If this case goes to court and Shepard Fairey loses to the AP it will be a great win for artists who support copyright protection. It will help to define the limits of fair use which ARE LIMITED in the first place. Copyright laws were not made to protect people who willfully steal. They were made to protect creators so that they will continue to create knowing their work is safe. You've been dead right on that!

Maybe Obama will make a statement about the importance of copyright laws. I think he should apologize for supporting a poster that violated a US law. If he can take the time to send Fairey a personal letter thanking him for his images and for putting work on stop signs I'd think he can take the time to address copyright and why we have it in the first place.

josephbolstad said...

Thanks for bringing up the Baxter Orr case -- I hadn't yet heard about that. It is indeed quite hypocritical of Fairey to be making these kind of demands to Orr considering he uses a similar method of altering existing images.
I think society should permit what Orr or Fairey do -- on a case by case basis. I would tend to agree with what Robin Gross stated regarding the "Hope" image. By making the contours bold, creating a new, simplified color scheme, and adding a word, Fairey arguably made the image something iconic, something with a purpose quite different from the original photo. But the Mederos case is a very different story. Fairey turned Mederos' image into a sellable t-shirt, with essentially no changes from the original piece except for color. If Fairey is going to prohibit artists like Orr from making clever, transformative alterations to his work, he really has no business copping old posters for his t-shirts.
I tend to think of myself as permissive when it comes to fair use, but I definitely agree with you, Brian, about the despicable hypocrisy of the Orr cease-and-desist letter.

Herb said...

Are you guys seriously debating this, or are you waiting with hands out wanting a piece of someone's idea. Look, it's a full-color photograph from the AP( a document of a moment in history, not a work of art), and Shepard's work is a hand-cut 4 color stencil(a work of art). I don't think you have a leg to stand on. If Shepard had merely scanned in the photo and digitally altered something in the photo, and then claimed it as his own, that's one thing. But his work is an entirely different process. Look at art history. If this were two artists doing the same process with the same image, then you have something. There are other legal precedents that are not hard to find that the AP should have looked to before opening this case. Have they seen Andy Warhol's work?

John Davis Photography said...

As a Professional Photographer/Fine Artist, I believe Shepard Fairey should definitely be more cautious and respectful of other creatives. I respect his work and if it were my photo he used I would have at least considered letting him use it for some form of credit i.e. on his blog, website etc... Fair Use or not, the photographer in question SHOULD be compensated with at least a nod from Mr. Fairey.

The AP Photographer makes a living with his photography and, like it or not, commercial/editorial photographer's would not be able to stay in business without making a profit from Usage. AP, "Scourge" or not, is at least partially looking out for the Photographer's business.

As a Commercial AND Fine Art photographer I do find myself being pulled in two directions on this issue but in the end I need a roof over my head and food on the table.

Also, in reponse to NObey, "fragile" Fair Use is still Fair Use.

Balhatain said...

Joseph, I’m not against fair use if it is actually fair use. My problem is that a lot of people don't understand what exactly fair use is. I’ve done a lot of research concerning Fairey. That is why I keep pointing out his contradictions-- he is a good example to use.

Herb, photographs-- even if they are press photographs-- can be copyrighted just as a painting or sculpture can be copyrighted. Copyright is not just for creative works nor is it just for art.

As far as copyright is concerned it does not matter if there is a difference between the two mediums-- infringement is infringement. Just so you know, the Warhol foundation has lost copyright law suits-- so has Koons and Richard Prince will most likely lose if the recent case against him goes to court.

The fact remains that if you removed the stencil portrait there would not be much left of the Fairey Obama posters. They would just be fields of color. In a sense, the stencil outline holds the posters together. Thus, the photograph served as a crucial aspect of the image as a whole.

Unknown said...

Read this, then we can have a discussion:

Edel Tripp said...

Fairey is a thief... he's been stealing art and refurbishing it for years. Do you think the family of Andre the Giant(or wwf/wwe for that matter) is seeing any money from his image? Doubtful.

See this break down and outing : 99% of his work hes taken from other artists and just added more stuff to it.

Anonymous said...

As a Graphic Designer and printmaker with over 20 years experience, and who is currently pursuing and MFA, I find Fairey's work to be painfully derivative, cliche, and fundamentally unoriginal. In short, I think he's a bit of a hack, and his work is rarely clever, satirical, or even intellectually challenging.

All that said, I wonder how many of these photographers and art lawyers have the first clue as to what goes in to the process of making a posterized image and then burning screens and printing a multicolor silk screen poster. If you understand the PROCESS of silkscreening, then there is absolutely NO dispute that Fairey's work is "transformative". Sure it may not fall under the protection of "fair use" in terms of commentary, satire or parody, but it IS without a doubt, and undeniably "transformative" of the original image.

Where is the line to be drawn? Can a new work be nased on an existing image? Can it resemble an existing image closely? CAn it bear a fleeting resemblance? Where is the line for "originality?" THAT is the real question here.

Most of the graphic designers, printmakers, and fine artists that I know consider Fairy to be a hack. But just because someone is a hack isn't grounds to single out his work to use as legally-binding case precedent against the entire art world.

Where is the "line" for "originality"? THAT is what we need to determine. It is unfortunate that a hack like Fairey is providing the fodder for the legal process in this determination. Ultimately, his work (and the ensuing legal repercussions) will do tremendous damage to ALL the arts--fine art, graphic design, music, literature. Fairey's legacy will, I fear, be that which established the next round of judicial (and legislative) aesthetic repression...