Thursday, February 05, 2009

Was Shepard Fairey’s Obama posters officially endorsed by the Obama campaign or not?

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

Imagine my surprise when I arrived home to find an article titled ‘Obama ‘Hope‘ poster‘s artist in legal dispute‘ on the front page of Yahoo!. After all, I’ve been calling for the mainstream media to examine the art and intentions of Shepard Fairey for months. Knowing Fairey’s history I was surprised that Barack Obama would choose an artist with a history of copyright infringement allegations to represent his campaign visually-- especially since Obama had by that time been praised as a ’Champion of the arts’.
I was also surprised that the visual art community-- most of whom do not agree with willful copyright infringement -- was for the most part silent on Obama’s choice of using Fairey‘s poster. I suppose making a stand was not a popular option. After all, those who did question the connection between Fairey and Obama were labeled “jealous”, “conservative”, “lazy”, “apathetic”, “right wing” or worse. Thus, the public ended up reading mainstream article after article praising Shepard Fairey with little to no balanced criticism of the copyright infringement allegations that have shadowed his art career or what his connection to the Obama campaign could symbolize in the eyes of those who strongly support copyright and artist rights. Now that the election is over people have time to reflect on these issues. The mainstream media did not take notice of copyright infringement allegations involving Shepard Fairey-- until recently. My guess is that eventually they will focus on Fairey’s connection to Obama’s historic campaign.

I don’t want to appear as if I’m a braggart, but I must say that on some level I expected the truth to be revealed at some point. In fact, I warned about it. In a Myartspace Blog article, titled ‘Obama’s Obedient Artist: Is Shepard Fairey a Farce? (Sept 21, 2008), I stated, “there is a message just under the surface of (Shepard Fairey‘s) ‘HOPE’ that should be examined before hype sways opinions.” concerning Fairey‘s media driven status and the copyright infringement allegations of his past. In the same article I mentioned that selective history-- as in the mainstream media not reporting in a balanced manner concerning Shepard Fairey‘s rise alongside the Obama campaign-- can build a career as long a people don't take notice of it.
Oddly enough, in response to a blog comment I suggested that due to Shepard Fairey’s history of alleged copyright infringement it may turn out that Fairey’s Obama posters are not exactly original-- it looks like I was right. Obviously people are starting to take notice due to the Mannie Garcia / Associated Press (AP) controversy surrounding Shepard Fairey’s alleged copyright infringement of a photograph of Obama taken by Garcia while working for the AP. However, the issue over copyright is not the only thing that needs to be examined.

Upon clicking the Yahoo! News update I read the article-- officially titled ‘AP alleges copyright infringement of Obama image’-- I was not surprised to discover that it contradicted several articles involving statements from key individuals who were directly involved with the production, distribution, and promotion of Shepard Fairey’s ’Hope’ posters. Indeed, the selective history surrounding Shepard Fairey’s Obama posters is still ever-present. Needless to say, I think Shepard Fairey’s connection to the campaign in general needs to be examined further so that the visual history of this historic campaign is documented based on fact instead of hype or emotive reasoning. Thus, I feel that it is important to examine the article in order to help put the puzzle together.

Before I go further I must make the blunt of the Associated Press article clear. The author of the article, Hillel Italie (AP National Writer) states that the Associated Press (AP) owns the copyright of the Mannie Garcia photograph that Shepard Fairey used to create his Obama posters. The article touches on the fact that Shepard Fairey did not credit or compensate Garcia or the AP and claims that he worked within his rights based on fair use. Italie goes on to say that the AP desires to receive credit and compensation from Shepard Fairey. The article also states that the AP is discussing the continued use-- as in gallery exhibits-- and distribution of the poster with Fairey’s attorney. Needless to say, Shepard Fairey does not agree with the opinion of the Associated Press.

Now it is time to explore how the article contradicts statements by Shepard Fairey and others concerning the photograph, the Obama campaign, and if the poster was officially sanctioned by the campaign or not:
I found one section of the article to be of great interest concerning the connection that the Obama campaign had regarding the photograph and its use by Shepard Fairey. Italie states, “A former Obama campaign official said they were well aware of the image based on the picture taken by Garcia, a temporary hire no longer with the AP, but never licensed it or used it officially. The Obama official asked not to be identified because no one was authorized anymore to speak on behalf of the campaign.” Again, this is interesting because the opposite has been said elsewhere.

In a WIRED article titled ‘Obey’ Street Artist Churns Out ‘Hope’ for Obama (Sept 21, 2008) “Before going into production on his first Obama-inspired print, Fairey, a fan of the senator after seeing him speak in 2004, was careful to seek approval from the campaign. "I didn't want anything I did to be a liability or an unwanted endorsement," said Fairey. "We had the unofficial wink and nod to do an image."" The WIRED article then states, “After the success of the "Progress" print, Fairey says he was contacted by the Obama campaign to create an officially sanctioned poster in the same style -- only this time with a campaign-approved photo and slogan. The new artwork featured the now-famous "Hope" slogan.”. It just does not add up.
Anyone who has seen ‘Progress’ and ‘Hope’ side by side (See Image at Top) knows that the stencil portrait of Obama is the same-- which means that both posters are based on the copyright protected photograph of Obama according to the Associated Press -- so was the AP photograph the “campaign-approved“ photo or not? Did WIRED flub on reporting? Did Shepard Fairey lie to WIRED about ‘Hope’ being “officially sanctioned”? Are individuals involved with the Obama campaign telling the truth about how official or unofficial the poster was? Where is the truth-- how far should this be investigated to discover the truth? I suppose time will tell.

The contradictions don’t stop there. In the article Italie states, “Fairey has said that he first designed the image a year ago after he was encouraged by the Obama campaign to come up with some kind of artwork. Last spring, he showed a letter to The Washington Post that came from the candidate. "Dear Shepard," the letter reads. "I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can help change the status quo. Your images have a profound effect on people, whether seen in a gallery or on a stop sign."" Was Shepard Fairey encouraged by the Obama campaign or did he work directly with the Obama campaign? Some past articles may shed some truth…

An article published by LA WEEKLY, titled ‘Yosi Sergant and the Art of Change: The Publicist Behind Shepard Fairey’s Obama Hope Posters (Sept 10,2008) claims that Yosi Sergant of Evolutionary Media Group (EMG) -- Sergant and EMG were working as media consultants for the Obama campaign at the time-- brought Shepard Fairey into the Obama campaign. The article states, “Sergant engaged Fairey in a discussion about the upcoming election. And when he found out that the artist was an Obama enthusiast, Sergant asked Fairey if he was doing anything to help the candidate get elected.” This info begs the question-- was Shepard Fairey simply encouraged by the Obama campaign or was he sought out by the Obama campaign as an addition to the campaign pr machine?
The article goes on to say, “The next day Fairey called, wondering if he thought the Obama camp would mind if he made a poster. Sergant immediately realized the power an iconic image by Fairey could have and decided that he and Evolutionary Media Group could be more effective if they worked outside the confines of the official Obama campaign and teamed up with Fairey instead.” It should be noted that Yosi Sergant and Evolutionary Media Group had worked six months as media consultants for the Obama campaign. Apparently they left the campaign ‘officially’ once Fairey came into the fold. However, they were obviously still working closely with the Obama campaign based on information that is provided by other articles pertaining to this story.

An article published by the New York Post, titled ‘Paint Misbehavin‘ In Team O‘S ‘Street Art‘, offer more information that suggests that Shepard Fairey, EMG, and the Obama campaign were still working closely together. The article states, “Fairey worked in such close coordination with campaign communications director Scott Goodstein that they discussed the color palette for Fairey's limited-edition Obama print. Within days of going up on Fairey's site, it sold out. Fairey produced two more versions, which also sold out and now fetch up to $1,300 on eBay.” This information is interesting to consider when in the same article Sergant is quoted as saying that he was never commissioned by the campaign to seek out street artists such as Shepard Fairey.
In fact, Yosi Sergant claims that the art by Fairey and other street artists was “purely user-generated."-- as in no involvement or guidance from the Obama campaign. The article quotes Yosi Sergant as stating that he never consulted with Scott Goodstein about programs that he worked on during his own time outside of the office. Again, the article quotes Sergant as saying, “The campaign was completely unaware of the art stuff.” I’m not sure who to believe! Are you?
In ‘Paint Misbehavin‘ In Team O‘S ‘Street Art‘’ Sergant states, “The campaign was completely unaware of the art stuff. I never worked out of the GO! [Generation Obama] offices." So which is it? Did the Obama campaign seek out Shepard Fairey? Did the Obama campaign put Yosi Sergant-- who was a media consultant for the campaign at the time-- in charge of recruiting street artists for a stealth pr campaign on the streets? Did Yosi Sergant act without the knowledge of the Obama campaign as he claims in the New York Post article? Or did Fairey contact the Obama campaign directly on his own accord? Which is it?
Oddly enough the article by Italie states, “At first, Obama's team just encouraged him to make an image, Fairey has said. But soon after he created it, a worker involved in the campaign asked if Fairey could make an image from a photo to which the campaign had rights.” Confused? Maybe the mainstream media will finally sort this story out. The public deserves it-- students reading the art history books of tomorrow deserve it. We deserve to know what exactly happened, who was involved, and how it was funded. Don’t we?
Individuals need to take responsibility for the confusion that has dominated this aspect of Obama’s historic campaign. Is the mainstream press at fault? Are former members of the Obama campaign at fault? Should Shepard Fairey take some responsibility? What about President Obama himself?
Links of Interest:

AP Alleges Copyright Infringement of Obama Image by Hillel Italie -- Associated Press

Paint Misbehavin’ in Team O’S ‘Street Art’ by Maureen Callahan -- New York Post

Yosi Sergant and the Art of Change: The Publicist Behind Shepard Fairey's Obama Hope Posters by Seven Mcdonald -- LA Weekly

‘Obey’ Street Artist Churns Out ‘Hope’ for Obama by Jenna Wortham -- WIRED Blog Network
Take care, Stay true,
Brian Sherwin
Senior Editor


Anonymous said...

Good detective work, but you could basically boil it all down to that one passage in the AP story where Shepard claims the campaign asked him to use an image they had the rights to. He's clearly didn't, and he simply covering their asses (poorly).

Now, why doesn't the AP realize that their own story contradicts itself?

Yep, the "Hope" poster was astroturf.

Anonymous said...

Shep is a genius. Shep is also a businessman. he is no different from Andy Warhol in the appropriation of imagery. He goes beyond mere copying and creates new ways of seeing icons.

Anonymous said...

The Wired article had it wrong. The "Hope" image was the same as "Progress", just different words at the bottom. The one that was commissioned was "Change":

Anonymous said...

The difference between Warhol and Fairey is that Warhol used images that were widely know. The photograph of Monroe was already famous and the soup can was mmmmm, mmmmm good. People knew what Warhol was commenting. Fairey on the other hand uses photographs and other artworks that are not widely know. So you don't know what he is commenting on unless you buy his Supply and Demand book for $59.95. Fair use is not an open door to making infringement legal. The Warhol foundation has been sued for copyright infringement and lost. So has Koons, Hirst, and Richard Prince is heading to court now.

Anonymous said...

The Rene Mederos poster that Shep referenced was not iconic. That is why he settled out of court when the Mederos estate found out. The photograph by Garcia that the AP owns is not iconic either. If it was people would have known just by looking at 'Hope' that it was based on Garcia's photograph.

Telamachus said...

This seems like an insane amount of attention to the process that lead to the iconic image. Aren't there more worthy areas to focus this kind of examination on?

Think about it, if Fairey had approached the AP or Garcia (whatever the proper order is) and was granted permission to use the image, the net-present value of whatever fee they would negotiate would likely be a lot less than it will be now...I'll even go so far as to say nominal. Now, is a different story. I would hope there is a precedent that would cap the amount money Garcia or the AP would 'hope' to collect. It would be incredibly unfair to request a percentage of the poster and its derivative commercial value at this point. Other than credit and a fair market value for using the image to inspire more art, Garcia or the AP shouldn't have a stake in the value add that Fairie created. Other than credit, what is the real injury to Garcia and the AP? Hasn't Fairey actually created more prominence and notariety for Garcia's image? It sure seems like much ado about nothing...maybe I should seek out Shakespeare's heirs to compensate them for using that title as an illustrative point...

Balhatain said...

Telamachus, I've read that if Fairey had contacted the copyright owner-- considering the success of his clothing line and other ventures -- the agreement could have been around $10,000 for use of the image plus royalties.

So lets keep it simple and say the owner received a penny in fees for each poster that was printed. Depending on which figures you go buy-- as in the number of posters printed-- even just one cent in profit for each poster would add up quick and the campaign would have still received a huge donation/promotion from the posters.

Then you have to think about the exclusive deals with Urban Outfitters and other companies. Needless to say, the copyright owner missed out on a lot of profit. If Fairey was honestly not interested in profit you would think he would have been ok bringing the copyright owner into the deals.

Now, if it turns out that the Obama campaign or people hired by the campaign had funded illegal street art as well as the distribution of a poster involving copyright infringement that would open up another can of worms all together. There are a lot of contradictions-- people changing their statements.

Unknown said...

From a strictly aesthetic perspective, the photo is nothing exceptional and would make a drab poster. Shep did more to that photo than he does with most his re-contextualizing. Try seeing the differences rather than the similarities.

From a legal perspective, I'm grateful there are artists like Shep pushing the boundaries of fair use for visuals the same way Negativland has been pushing for fair use of audio.

That law has laid stagnant for too long while technology has changed the playing field. I'm looking forward to following this one, big hope for some progress here!

Christopher Simmons said...

Maybe Hillary was talking about art when she made that quip about "change you can Xerox..."

Anonymous said...

the simple fact of the matter is that 'fair use' is valid in this instance. The poster enhanced Garcia's photo. Not to mention, if you're any kind of artist at all, you would've noticed that the photo is a photo and the illustration is an illustration. Fairey obviously changed more than 20% of the photo, therefore is legal. End of story. Where he gets his references and whether or not they're HIS photos (or got permission to use them as references or even digital genesis files), is immaterial. He changed them more than 20% - all very legal and very commonplace.

Balhatain said...

Shale Grant said, “The poster enhanced Garcia's photo.”

It also took away from any profit that the copyright owner could have received since Shepard Fairey willfully avoided contacting the copyright owner. That will hurt him in court. Also, if you removed the stencil work the poster does not stand on its own. The photo is a vital aspect of the work itself.

Shale Grant said, “Not to mention, if you're any kind of artist at all, you would've noticed that the photo is a photo and the illustration is an illustration.”

As far as copyright infringement is concerned a change in medium does not matter. If you made an image out of snow and I made the same image out of mud I would be violating your copyright. You need to learn more about your rights.

Shale Grant said, “Fairey obviously changed more than 20% of the photo, therefore is legal.”

The percent defense is an urban legend. Even if he had used just 1% of the photograph it could have still been considered copyright infringement. Again, learn more about your rights. Take away the stencil outline of Obama and a major part of the poster is gone. Technically the poster would lose its impact if the stencil work from the photograph was removed. My guess is that the AP will show that in court.

Shale Grant said, “He changed them more than 20% - all very legal and very commonplace.”

Yes, the ignorance that you are showing is commonplace. Excuses for willful copyright infringement are commonplace as well. Artists and photographers getting ripped off by opportunists is also commonplace.

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!