Monday, February 09, 2009

Shepard Fairey sues the Associated Press over photograph of Obama

A comparison showing Mannie Garcia’s AP owned photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters. The portrait of Obama by Shepard Fairey is a stencil portrait.

The Associated Press situation involving the artist Shepard Fairey and allegations of copyright infringement has taken a twist. Shepard Fairey’s legal team broke settlement negotiations with the AP on Friday. Earlier today the artist filed against the AP in hopes of gaining a supportive decision from a judge concerning his use of the AP owned photograph which served as the base image for three versions of Fairey‘s Obama posters. The AP had agreed not to sue Shepard Fairey up until today. However, they will likely take action now having stated that they believe it is crucial to protect photographers, who are creators and artists. The AP wants to make it clear that works by photographers and artists should not be misappropriated by others.

Shepard Fairey’s legal team has stated that Fairey did not violate copyright law because the posters “dramatically changed the nature of the image”. However, legal experts outside of the case have suggested that Fairey was not in the right. For example, Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, has stated that though the photograph is “transformed” to a “sizable extent” the owner of the photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.

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.

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.”

Shepard Fairey’s lawsuit against the Associated Press was filed in U.S. District Court in Manhattan. Fairey’s legal team acknowledges that the artist used the photograph. However, they have stated that the artist transformed the “literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message.". Concerning the reason for his lawsuit against the AP Shepard Fairey has stated, "It's a suppression of an artist's freedom of expression.". However, the AP believes it is “crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others,".

The AP has stated that they are owed credit and compensation for the artist's rendition of the picture. The photograph was taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington. The AP has stated that any settlement would be placed in a charitable fund that would benefit AP journalists worldwide who suffer personal loss from conflicts and natural disasters.

Shepard Fairey’s lawsuit against the AP was filed on the same day that the artist appeared in two different Boston courtrooms after having been arrested for vandalizing private and public property with graffiti-- as well as an outstanding warrant from 2000. Fairey pleaded not guilty. Of the charges Fairey has stated, "I'd love to be able to feel like the culture of Boston continues to encourage freedom of expression. If that's not going to be the case, I'll deal with that."

Some individuals feel that Shepard Fairey is revealing his true colors due to the stress of the Associated Press copyright infringement allegations. After all, Fairey often says that people should “question everything”, but questions about various copyright allegations against him were taken off the table at a recent Q&A session. Reports state that during the session the audience was not allowed to ask questions and that the questions asked by a curator were “soft”. Thus, it has been suggested that Fairey is a hypocrite. After all, he settled out of court with the estate of Rene Mederos in 2007 after willfully infringing on a copyright protected poster by Mederos. A poster that Rene Mederos created in 1972.

Shepard Fairey infringed on the copyright of the Rene Mederos estate in 2007. He copied the poster from a book and made a few changes. Fairey titled the image 'Cuban Rider'. Fairey acknowledged the copyright infringement and settled out of court with the Rene Mederos estate. He later suggested in an inteview with Mother Jones that he thought it was acceptable to use the image because Mederos was from Cuba.

In 2008 Shepard Fairey sent an artist, Baxter Orr, a cease-and-desist letter that threatened legal action after Orr had created, distributed, and sold a parody of Fairey’s widely known Obey Giant poster. Orr’s poster was protected by “fair use” under both copyright and trademark laws. Fairey claimed that Orr’s poster was both copyright and trademark infringement. At the time Fairey stated, "I have to deal with the bad end of it(copyright) sometimes. I've had to pay out,". Fairey also stated at the time that the difference between him and Orr is that if he's contacted by a copyright owner, he'll stop using that image.

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.

That said, some individuals have suggested that Shepard Fairey is only interested in “fair use” when he is the one utilizing it-- or if high profit is involved. Regardless of how the AP situation turns out the damage has already been done. In other words, the artist who says that people should “question everything” is being questioned about his ethics-- when will he answer?

Links of Interest:

Calif. artist sues AP over image of Obama by Larry Neumunster -- Associated Press

Shepard Fairey Fights Back by Aaron Perry-Zucker -- Fast Company

Fair Use: Shepard Fairey and Baxter Orr by Brian Sherwin at MyartspaceBlog

Shepard Fairey Doges Criticism at ICA: Street Artists and CopyrightAdvocates Demand Answers by Brian Sherwin at Myartspace Blog

Jaime O’Shea Obeys Shepard Fairey by Taking Jabs at Mark Vallen by Brian Sherwin -- Myartspace Blog

Shepard Fairey: Obey Copyright by Brian Sherwin -- Myartspace Blog

Take care, Stay true,
Brian Sherwin
Senior Editor
New York Art Exchange
London Calling


Anonymous said...

This case shouldn't be as far reaching as you think it is. From the 2006 opinion of Blanch v. Koons:

"...the determination of fair use is an open-ended and context-sensitive inquiry. In Campbell, the Supreme Court warned that the task is not to be simplified with bright-line rules, for the statute, like the cdoctrine it recognizes, calls for case-by-case analysis."

This case may be used as reference in future cases, but how "fair use" is defined and deterined will remain exactly the same.

Even in the quotes you post, you can see that the argument concerns the exact same issues that Jeff Koons's cases have concerned. Cases he;s won and loss based on the nature of the works involved.

From the same opinion, the 4 factors determining fair use are:

"(1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

"(2)The nature of the copyrighted work

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market or value of the copyrighted work"

For Appropriation art, such as Koons and Fairey's work, usually it's the first question that is important. In practice, whether a collage or other appropriation art is whether the new use is "transformative."

Again, from the same opinion:
"The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely "supercedes the objects" of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or messade..., in other words, whether and to what extent the new work is 'transfortmative.'"

I'm not going to speculate whether Fairey's work will pass this test or not. If he could have achieved the same new intent without using the photo he did he could be found liable.

But when you insist that this is some line in the sand case upon which the entire copyright landscape depends, you're wrong. Even the quotes you've used show that the debate between the attorneys is to what extent the Fairey piece is "transformative." Whether its found so or not, the determination will be based in pre-existing case law and will not be blazing new trails.

And as the first quote I used shows, each case is very explicitly considered its own animal. Future cases will be determined just like this. If Fairey is found not liable, then what he's doing is already legal fair use. If what he's doing is wrong, it has always been thus.

Balhatain said...

J.D., Koons has lost similar cases-- so has the Warhol Foundation. True, each situation is looked at on a case by case basis-- I've stated that before. My point is that "fair use" should be more clear so that people do not make mistakes. I'd like to see a line drawn. Murder is murder no matter how you despose of the body.

In Campbell the judge also decided that the music did not harm the original song because the original song was widely known and there would be no confusion about that. He also made it clear that he did not think anyone would make a career off of "fair use"-- he did not see it as a way to make great profit. Obviously Shepard Fairey has. The times have changed and the law should mature to reflect that change.

Laws are meant to change. You seem to think that law is set in stone. If that were the case the United States would be a very different place.

If the ACTA-- which President Obama supports-- becomes official none of this will matter. Artists like Shepard Fairey will find themselves removed from the Internet. A leaked paper reveals that it will cover music as well as visual art. Thus, if people are going to claim "fair use" they had better know exactly how "fair use" works. "fair use" needs to be clear.

It will be interesting to see how the Richard Prince case will turn out. Personally, I think Patrick Cariou has a strong case against Prince, the Gagosian Gallery, the owner of the gallery, and the publisher. If it goes to court and Patrick wins I doubt that galleries will risk exhibiting artists like Shepard Fairey from that point on if they can't be certain that the work falls within fair use.

Artists are not going to stand for copyright being abused. The basis of copyright is to protect the owner so that he or she will continue to create and share his or her creations with the public knowing that he or she will be acknowledged for his or her work. It is not meant to be used as a way to use the creators ownership against the creator in order to profit from his or her work.

What bothers me about Shepard Fairey is his contradictions. I question his ethics when he states that artists that use his work are not doing so under "fair use"-- but is quick to defend his own "fair use". Personally, I think Baxter Orr created a perfect example of a work of art under "fair use"-- under both copyright and trademark laws-- when he created 'Protect".

After all, Fairey's Obey Giant image was widely known by that time. There was no confusion about who created what. I think it is a better example of "fair use" than Fairey's Obama posters because it established dialogue between the old and new work. Not to mention that you did not have to buy a book for $59.95 to make the connection.

Anonymous said...

Good Article. I just have one question. Can Obama really save the world? Actually two questions. Do we the people actually understand what 800+ billion dollars will do after they pump this money into the market? Understand more here.
Next article coming soon. "Can Obama save the world?"

Anonymous said...

Great Article! So much irony and hypocrisy.

Caraleisa said...

I am an artist, and would NEVER use another artist or photographer's work as a base for my own. First of all, even if it were legal, which it is NOT, it's totally without integrity. Fairey is WRONG, and must be held accountable.

Anonymous said...

Slightly off topic, but regarding Rene Mederos: how the bloody hell did his family even have the courage to speak out and demand compensation for the infringment, considering he was living in a communist regime? Surely Castro's government would have squashed such a capitalistic aim as personal profit for a poster which I'm sure was originally used to further communist propaganda in Cuba.

jafabrit said...

Stunning and dramatic change of original image are a flipping stretch.

Thanks for the informative article, very interesting read and great links.

Anonymous said...

I think that "fair use" is pretty clear if you read the opinions that have decided it. In the case I cited, the dissenting judge (who reaffirms the verdict) actually outlines the difference between this case and one that Koons lost. The criteria are set out as I listed them (though for full context you should read whole opinions that show it in use). The guidelines set up aren't hard to interpret either.

I'm not an attorney and am not giving legal advice here, but having read the deliberations in Blanch v. Koons, it's pretty clear that the t-shirts above are not "transformative" and damage potential markets of the original artist- therefore they'd be a copyright violation. The second image is a comment upon the original Fairey image, that was transformative insofar as it was making a new point, while depending on the original image to create that point. Therefor no copyright infringement.

You absolutely cannot create a firm set of absolute guidelines for something like this where context can vary so wildly between piece. Just as murder is NOT always murder. It can be First degree, second degree, manslaughter, self-defense, or negligent homicide. Every case is different and should be treated on its own merits.

Judges are smart. They are not going to accidentally destroy copyright law. Laws do indeed change. They change in congress and occasionally in the supreme court, such as was the case with Campbell. Unless this case gets to that level, and is decided upon entirely new criteria (and I would bet a kidney tyhat it doesn't), the law is not about to change in this case.

Complaints about Fairey or ACTA do not affect this, since I haven't addressed either of them. If ACTA passes (a legislative act), that could change a lot of things (I do not think it is as draconian as you say), but that has not been the context of this conversation. My point is this: Fairey's case will be decided in the exact same manner as any other copyright case- based on it's own merits.

If it is decided in a way you dislike, that will not harm any case you bring before the courts. You case will be handled on it's own merits also.

If you want to complain about Fairey, I don't mind. The guy isn't exactly my hero either. Similarly if you have issues with Campbell, ACTA, or the orphaned works bill those are also well and good.

But the notion that the Fairey case should be a horror story to frighten anybody who's ever produced something is sensationalism. If anything, it is distracting from actual issues, such as bills in congress that are probably more important and which people have more control over.

Anonymous said...

I'm just getting around to reading this issue on the blogs and here are a few of my thoughts, from a legal perspective, not an art perspective. I trust your analysis of the art perspective much more than mine!

I believe the whole discussion of fair use is a secondary consideration when you take into account some hair-splitting copyright law. I believe the attorneys for Fairey also know this, as the first issue presented in the lawsuit is whether a copyright exists, while fair use is the second issue. The broader issue other than fair use is whether the photo is actually protectable by copyright and if so, whether the elements of the photo that were copied are protectable.

I can think of two arguments why the image of Obama or the element of Obama is not protectable by copyright. First, Fairey may make the argument that the photographer did not create anything original, so the photograph as a whole is not copyrightable. Evidence to support this claim is that the photographer had no discretion with poses, lighting, staging, etc. Also to support this are the numerous photos taken by different people that are substantially similar; thus, none of them may be considered an original created work of art. This may be why Fairey is claiming the photo he based his work on is not the same one the media is claiming it is based on, this actually supports an argument that the photograph is not a creative work because the photos are too similar to distinguish which was used. Copyright protection only attaches to creative works, thus if a photo is deemed to be not creative, it may not receive any copyright protection.

Second, Fairey may argue that even if the photograph as a whole is protectable by copyright, it does not matter because Obama and his expression are unprotectable elements of the photograph. The Judge, as a matter of law, will likely have to make a decision about whether Obama and his expression are protectable elements. Generally, artists have no copyright in the reality of their subject matter or appearance of objects as they occur in nature. See Leigh v. Warner Brothers, Inc., 212 F.3d 1210, 1214, (11 Cir. 2000). Put another way, the photographer may have no rights to the subject of the photograph in this situation, where the photographer had no control or influence over the subject (like timing, background, lighting, staging, expressions, posing, etc.)

Also, to support the AP’s claims to copyright protection, a court would have to find that the AP had rights to a copyright on Obama’s face and expression, as that is the only thing even remotely similar (or copied) from whichever photo is at issue. This is probably also why Fairey is claiming he used the larger picture for the basis of his work, because his final work resembles very little of the original picture with Clooney in it, as he only used the element of Obama. This type of assertion by the AP would likely fail because of the terrible ramifications it would have, like a photographer possibly being able to sue anyone else who ever photographed or painted Obama.

For these reasons, I believe at a minimum, the element of Obama in the picture is not a protectable element of copyright law. Thus, I think a judge will likely rule in favor of Fairey, possibly even on summary judgment. That is why I believe this is actually less of a fair use issue and more of an issue of what copyright law protects; which is the original photo, not the subject of the photo. The fair use arguments may never even be ruled on and are probably secondary considerations.

Just my thoughts to point out that this case is about much more than fair use rights.

Anonymous said...

The Garcia photograph is currently being sold as prints at the same gallery that informed the photographer that his photograph was used by Fairey. The gallery also represents Fairey. If the photograph is creative enough to be sold as a print in a NYC gallery it is creative enough to stand alone as an original fine art photograph. Even the gallery owner says it is a creative photograph. The artist said from the start that he chose it for the power it captured. I think those two factors will hurt Fairey's claims. The photographer and the artist both wanted an image of Obama that shows strength. If viewed in that light the poster is not much different than the photograph.

Anonymous said...

Thanks, Carl B. You made some excellent points.
I think people should take a look at the original Garcia photo, and then make a judgment:
Willem wrote: "The photographer and the artist both wanted an image of Obama that shows strength. If viewed in that light the poster is not much different than the photograph."
REALLY? Look again at both the full photo and the poster it spawned and ask yourself if these two images are not totally different. True, Fairey chose to base his portrait on this image because of Obama's expression. Undoubtedly, he chose the image not for its composition but because Obama happened to have a particular look on his face -- a look which was not under Garcia's control. As Carl mentions, it would be unthinkable to copyright somebody's facial expression.
Furthermore, Garcia's original photo actually went up in value when it was revealed to be the source for Fairey's poster. I believe this will further weaken the AP's argument.

Balhatain said...

You have to think of the context in which the Garcia photograph has went up in value. As another commenter mentioned the only sign of the photograph going up in value is the fact that it is being sold at the same gallery that informed Garcia that Fairey had used his photograph. It should be noted that the gallery represents Shepard Fairey.

I've read Shepard Fairey's lawsuit papers against the Associated Press and it mentions that gallery as proof that the photograph has went up in value. I'm sorry folks, but I don't think a jury will buy that. As others have pointed out-- it comes off as staged. Almost as if they are trying to create something out of nothing. The AP legal team will no doubt latch on to that.

If indeed the AP owns the copyright none of that will matter anyways. In fact, it will put Garcia and the gallery at risk of being included in a lawsuit if the AP counters. If that happens we will have two cases involving an artist and NYC gallery being sued for copyright infringement.

Anonymous said...

I keep reading these liberal art critics comparing Shepard Fairey to Andy Warhol, Jeff Koons, and Richard Prince. Reading their words you know that they don't even know who Shepard Fairey is and that they are commenting in support of him because it is popular to do that. Heaven forbid one of them muster enough courage to go against the Obama wackos in Chelsea or Boston. I think it is stupid to compare Shepard Fairey to these notable artists because he has not proven himself yet. Lets see if people still report on him after Obama drops in the polls. If his only claim to fame is Obama I'm afraid his career will ride on if Obama is successful or not. Warhol did not have to cling to a politician for stardom and a quick buck. Some of us knew Andy. Fairey IS NOT Andy. He never will be. SHEPARD FAIREY IS NOT ANDY WARHOL!Calling him the Thomas Kinkade of angsty youth rebellion is more like it.

Anonymous said...

I think that first of all we need to settle down about one thing - art has nothing to do with the law and vice versa. meaning that good art doesn't need to be legal and that legal art is not necessarily good.

in the fairey case there is only one question to be answered as far as I am concerned. and the question is was it inevitable for him to use that photograph to make the statement he wanted to make. could he do it without it? so, is his appropriation artistically relevant? would his poster lack something if he made it from scratch? I mean did fairey wanted to say something with this action of copying someone else's work or he simply did it out of a "habit"? was the process of copying his point, his goal or just a working process? that's what is relevant for me.

so, if fairy copied this image just because he thought it looked cool and suitable for what he wanted to express then I think he should be in trouble. but if copying was actually part of point he wanted to make with his work then he shouldn't be in trouble.

cristina botero said...

I think Fairey is i his write to make political art about and from who ever he wants to. #1 FREEDOM OF EXPRESSION!!!! He may have taken the photograph from any place the important issue is the end result.

He made a work of art of our president elected that helped the president get elected and honors him. For no reason the importance of the picture. The picture did not do anything for Mr.Obama or Fairey. The picture is nothing compared to the value of the art and the end result!!!
Cristina Botero, artist.

Anonymous said...

i've known so many very good arists that have used bits and pieces of photos and created their own masterpiece its called freedom of expression!

Balhatain said...

Anon said, "i've known so many very good arists that have used bits and pieces of photos and created their own masterpiece its called freedom of expression!"

Don't confuse freedom of expression for freedom to profit. Remember that works like this do not become an issue of copyright infringement until a price tag is attached to the work or mass copies are produced. Fairey's opinion is based on profit-- his profit-- not creative freedom.

Carole Guevin said...

Of interest: It is or It is not (plagiarism)"This is probably one of the worst nightmare that can happen to an editor, someone reporting that one of your covered artist may be a fraud. This is worst than navigating a perilous sea."

The author of the article sent us the link to your post which was reposted as well in our comments.