My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 3

Part 1
Part 2

As I’ve said before, 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, such as Shepard Fairey, 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“. Shepard Fairey wants the best of both worlds.

Shepard Fairey then states, “This case has raised many issues, including the use of references in art. Some of my earlier works have been attacked by some as “plagiarism”. I think reference is an important part of communication and it has been common practice in the art world.” Followed by, “When I flipped through the Christie’s auction house catalog from November 2008 I found many pieces that are based on reference or appropriation. Most are selling for over $100,000. Some are more clever than others, but these are all works that are at auction being taken very seriously. Take a look.”

Shepard Fairey failed to mention that many of the artist examples he listed appropriated widely known images instead of a photograph that was relatively unknown as he did with Mannie Garcia‘s AP copyrighted photograph of Obama. For example, the famous photograph of Marilyn Monroe was widely known, for the time, when Warhol used it. Warhol’s image quickly became iconic. Thus, under “fair use” one could parody Warhol’s Marilyn with little worry.

The same goes for other examples Fairey listed, such as ‘Jetsons’ by Kenny Scharf-- Scharf was a child in the 60s- it is safe to say that The Flintstones and The Jetsons were iconic long before Scharf used them in his art as an adult. The Marlboro advertisements that Richard Prince re-photographed were also widely known for their time. On a side note-- Fairey must not know that Richard Prince is having troubles of his own right now over copyright infringement.

Fairey then states, “If the AP wins their case, every Obama art (or any other politician) that was based on a photo reference that was not licensed would be rendered illegal.” Followed by, “Here are just a few that were an important part of the political discourse during this election cycle. I also think art that is critical of leaders that neither the subject or the photographer approve of need to be a legal form of expression. I think this Bush image is a perfect example. See Below.”

Shepard Fairey is full of contradictions. Today he is the champion of artistic freedom and free expression-- for many he is now the poster boy for “fair use“. However, last year he had a different stance on artistic freedom and free expression. In an October 2008 article for US News Shepard Fairey mention that he planned to “go after” individuals who “hijacked” his style in order to make “copycat images” of the candidates. He stated that he would try to make the “bootleggers” donate their profit to the ACLU. The fact remains that Shepard Fairey is not the champion of appropriation that he claims to be. After all, his Obama posters were widely known by that time. One could suggest that parodies of HOPE and PROGRESS would be perfectly acceptable under “fair use” due to the iconic status of the posters.

Need further insight concerning the contradictions of Shepard Fairey over “fair use”? In May of 2008-- as reported by the The Austin Chronicle -- Shepard Fairey was infuriated when emerging artist Baxter Orr created a parody of Fairey’s 20 year old image of Obey Giant-- an image that was widely known… iconic in its own right. Orr titled his parody ‘Protect’ and placed a SARS mask over the face of Andre. Soon after Orr received a cease-and-desist letter from Obey Giant Art Inc. The Austin Chronicle reported that Fairey called Orr a “profiteer”, “parasite”, and “mimic” for having appropriated Obey Giant.

Fairey, according to the Austin Chronicle, felt that Orr’s parody of Obey Giant threatened the secondary market for his art. In the Orr situation Fairey made it clear that he was protecting his trademark. Obey Giant is a trademark-- however, there is “fair use” under trademark. Fairey knows this-- he has parodied trademarks himself. He also said that the difference between he and Orr is that if contacted by a copyright owner he will stop using the protected image. Apparently that does not count in regards to the Associated Press case? The contradiction don’t stop there.

Earlier this month, March 2009, the Pittsburgh City Paper reported that Shepard Fairey had sent a cease-and-desist letter to Cafepress.com due to a store titled Steelerbaby. The store featured merchandise involving Steelerbaby , a doll designed by Larkin Werner. The official site for Steelerbaby features an image of the doll along with several catch phrases that visitors can click in order to have Steelerbaby say the phrase. One of the most popular Steelerbaby phrases happens to be “Obey Steelerbaby”. Thus, Werner created “Obey Steelerbaby” merchandise for his Cafepress shop. Cafepress removed all of the Obey Steelerbaby merchandise soon after receiving the cease-and-desist letter from Obey Giant Art Inc. However, Werner claims that he was not inspired by Shepard Fairey in the first place. Needless to say, Shepard Fairey felt that the merchandise was a threat to his trademark and the market for his art.

According to the Pittsburgh City Paper, Olivia Perches-- the representative of Shepard Fairey who sent the cease-and-desist letter to Cafepress-- has suggested that Obey Giant Art Inc. owns the use of ‘Obey’ and that artists can’t use the word ‘Obey’ in their artwork or designs. Chris Broders, a business partner involved with Fairey’s Obey clothing line, has suggested that the use of “Obey” becomes an issue when artists or other individuals profit from the “‘Obey’ mark”. He went on to suggest that Fairey’s representatives and business partners will do what they can in order to “protect" their "trademark".

Keep in mind that Werner only made just over $70 from Obey Steeler baby merchandise-- just barely enough to buy an OBEY hoody. Again, Werner claims that Shepard Fairey’s ‘OBEY’ was not on his mind. Even if it had been I would think that his use of Obey would be considered parody and that it would be acceptable under “fair use” due the iconic status of OBEY in general. Which begs the question-- does Shepard Fairey really support “fair use” and the whole of appropriation for that matter?

Again, this is just my take on Shepard Fairey’s message concerning the AP, Obama, and referencing. Read his message in its entirety in order to draw your own conclusions. I stand by my opinions . I want to make it clear that there is nothing wrong with being successful. I want artists to be successful. However, I also want emerging artists to be able to protect their work from the abuse of profiteers- like Shepard Fairey-- who take an extreme position regarding “fair use“ for their own gain.

I don’t care if it is a corporation, an artist, or an artist who owns a corporation-- they should not prey on the images of emerging artists. An artist can be successful and sustain a level of integrity. If the laws allow abuse perhaps they should be changed as far as visual art is concerned.

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

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 2

Part 1

Fairey states, “As far as the idea of the image being “stolen”, I would love to have the clout to command portrait sittings from world leaders, but for me and most artists out there, that is not an option. For lots of artists, even licensing an image is out of the question financially. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning? Reference is critical to communication, and in my opinion, reference as a part of social commentary should not be stifled.”.

Unfortunately, Shepard Fairey failed to mention that some media sources and individuals make images of this nature available for use at no cost. There were many photographs of Obama that Shepard Fairey could have used legitimately without dodging aspects of licensing that any first year illustration student understands. Keep in mind that he could have simply asked Yosi Sergant of Evolutionary Media Group to obtain a photograph of Obama during the campaign. After all, Yosi Sergant worked as a media consultant for the Obama campaign. Thus, one could suggest that Shepard Fairey did have access if he had wanted it. Instead, he chose to willfully infringe on the copyright of the AP.

Fairey stated, “Another suggestion someone made was “why not splice two or three photos together and illustrate from that?” Well, though a direct match would have been harder to find, with an image as popular as the HOPE poster, internet sleuths would probably have found the references and maybe I’d be facing two or three lawsuits.” Followed by, “This leads to the next question: is illustrating from a photograph “cheating”? I studied art, illustration specifically, at one of the most prestigious art schools, The Rhode Island School of Design. At RISD I was taught to draw from life, to draw from photo references, and to appropriate and re-contextualize imagery. All of these techniques had historical precedents which I learned about. Here are some great examples of famous painters working from photo references, and not always their own photos - http://fogonazos.blogspot.com/2006/11/famous-painters-copied-photopraphs_06.html”

I’m glad that Shepard Fairey learned the basics at RISD. However, I don’t think this brief reflection of his academic years has served him well. I don’t think many people suggest that drawing or painting from a photograph is “cheating”-- that is not really the issue here in the first place. Fairey’s distraction aside, there is a difference between drawing or painting from a reference photograph compared to stenciling over a copy of a photograph.

No, that is not to suggest that stenciling is ‘wrong’ or is of no value-- its just that it is a different process than drawing or painting as far as I’m concerned. As mentioned earlier, the real issue is that most first year illustration students know that if they use a copyrighted photograph as a reference or as a base image they had better ask permission or finding out about licensing from the copyright holder.

In his defense Fairey mentioned how artists from the past used photographs as a reference, some of which were “not always their own photos”-- the link he provided mentioned, Paul Gauguin, Paul Cezanne, Toulouse Lautrec, Vincent van Gogh, and Edgar Degas. Unfortunately, Shepard Fairey failed to mention that the situation today is very different compared to the past-- especially with respect to art law and the art market.

None of the greats he mentioned earned over $700,000 from copies of a single image in their respected currency during their lifetime. None of them had sold out exhibits involving thousands in profit during their lifetime-- at least not when compared to the profit that some artists earn from exhibits today. None of them sold their art as a corporation as far as I know-- dear Vincent did not run Starry Night Art Inc., true?

Furthermore, the famous painters that Shepard Fairey mentioned were not aware of copyright law as we know it today-- as any first year illustration student knows it today-- these artists were long dead before current copyright law. Times change-- the business of art has changed. Keep in mind that the majority of visual artists have fought for decades to have the rights they enjoy due to copyright-- the right to have more control in the market of their art.

Now, more than ever, visual artists need to be able to protect the market for their art. It seems that if we lived in Shepard Fairey’s world-- a world where current law is useless-- it would be acceptable to take a leap back in time in order to neglect the rights that creative individuals enjoy today. If the art community accepts Shepard Fairey’s extreme interpretation of “fair use” it will no doubt cause even more artists to endure the same financial woes that Vincent van Gogh endured in his time.

Fairey then states, “I have respect for, and have frequently collaborated with, photographers, but I do not think permission, or a collaboration is warranted in every case where an artist works from a photo reference. I collaborate with photographers because I WANT to, not because I believe I HAVE to.”

If Shepard Fairey feels this way he has failed to acknowledge over 60 art organizations that stood up against the 2008 Orphan Works legislation. With this statement he has slapped every photographer, including fine art photographers, in the face. With this statement he slaps Brad Holland and the Illustrators Partnership of America in the face as well. With this statement Shepard Fairey slaps the face of every creative person who understands the need to be able to protect their works!

Shepard Fairey is doing this while waving the banner of ‘artistic freedom” and “free expression” when in reality he is concerned with the freedom to profit off of the hard work of others without consequence. Keep in mind that this is the same artist who ‘ referenced ’ a poster by Rene Mederos without contacting the Mederos Estate for permission. After being exposed he stated that he did not know how to contact Rene Mederos since Mederos lived in Cuba. Apparently he was unaware that Rene Mederos had died in 1996-- so much for Shepard Fairey’s art history lessons.

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

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. 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.com
www.myartspace.com
Myartspace Blog on Twitter
www.twitter.com/myartspace_blog

Integrity Lost: Lawrence Lessig helps Shepard Fairey

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

I noticed something of interest on the Lessig website recently-- be prepared for a rant. Before I get started I feel that I should include some background information about Lessig and some of the organizations he has worked with: Lawrence Lessig is a Professor of Law at Stanford Law School. Lessig is the founder of the school's Center for Internet and Society. Lessig is currently supporting Shepard Fairey's case against the Associated Press.

In fact, The Stanford Center for Internet and Society's Fair Use Project (FUP), under the guidance of Executive Director Anthony Falzone, is currently representing Shepard Fairey in his case against the Associated Press. The case stems from the copyright allegations the AP made against Shepard Fairey concerning his use of an Obama photograph that the AP claims ownership of. Needless to say, the lawsuit has spurred debate about copyright law and the rights of artists-- it has spread like wildfire on blogs and art forums.

For those who don't know, the Fair Use Project provides legal support to cases of this nature in order to “clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom.”. Shepard Fairey hopes to “vindicate his rights, and disprove the AP's accusations“ with the help of the Fair Use Project. Thus, both Lessig and Falzone desire to see Shepard Fairey win his case against the Associated Press in order to strengthen their interpretation of “fair use”-- an interpretation that places the rights of visual artists at risk according to artist rights advocates.

It should be noted that Professor Lessig has served on the board of Public Knowledge . Public Knowledge (PK) is a public interest group based in Washington DC. PK’s mission is to defend “citizens' rights in the emerging digital culture.”. The group has been very active in fighting against legislation that strengthens copyright protection for musicians and visual artists. The organization claims that they are upholding the rights of consumers by opposing legislation that would limit or prevent fair use.

Public Knowledge strongly supported the 2008 orphan works legislation-- legislation that was opposed by Brad Holland , co-founder of The Illustrators Partnership of America (IPA). The IPA and over 60 other art organizations were outraged because the legislation would have greatly reduced the ability of a living artist to defend his or her art against copyright infringers. In fact, exclusive rights would have been destroyed if the legislation had passed according to Brad Holland. Holland and his supporters firmly stand on their position that the legislation would have stripped artists of many of the rights they enjoy under current copyright law had it passed.

Now to the task at hand. On February 6th Professor Lawrence Lessig posted an entry titled ‘Shepard Fairey's AP troubles’ on the Lessig.org website. The message stated, “A bunch of you have forwarded to me the story about the AP threatening Shepard Fairey for copyright infringement. The Stanford Center's Fair Use Project is representing Fairey, so I'm a bit constrained about what I can say just now. More when there can be more.”. It is not uncommon for a legal eagle to remain hush, hush until more information is available. However, on February 17th Professor Lessig posted the following message on Twitter, he said, “We could use help on the Shepard Fairey/AP case.”. Needless to say, I decided to click on the link.

Upon clicking on the link I was taken to Professor Lessig’s website and an article titled, ‘Crowd-sourcing a “fair use” case’ . The entry stated, “As mentioned, the Fair Use Project at Stanford's CIS is representing Shepard Fairey in his suit against the AP. To that end, we'd be grateful for some net-based knowledge. How many photos are there "like" the beautiful photograph that Mannie Garcia took?” At the top of the article there is a comparison image that shows two photographs of Obama with Shepard Fairy’s ‘Hope’ in the middle.
From the Lessig website. The photograph on the left was taken by Mannie Garcia and the photograph on the right was taken by Steve Jurvetson. Lessig stresses that Jurvetson’s Obama photograph is a CC licensed photo.

The article by Lessig appears to suggest that the Fair Use Project plans to question if Shepard Fairey had used Mannie Garcia’s AP photograph or not-- or they plan to devalue Mannie Garcia's photograph by comparing it to similar photographs. Why else would Lessig be asking readers to send in similar examples? However, if that is the case the Fair Use Project will surely run into some snags in court. After all, Mannie Garcia states on his website that the owner of Danziger Projects, a gallery that represents Shepard Fairey in New York City, contacted him on January 21st 2009 in order to inform him that his photograph of Obama was the basis of Shepard Fairy’s ‘Hope’ and ’Progress’ posters. On top of that, Shepard Fairey has long suggested that the photograph attracted him because of the power it conveyed. Shepard Fairey chose Mannie Garcia's photograph out of hundreds, if not thousands, of Obama photographs online. Thus, one can assume that for Fairey this specific photograph had a lot of meaning.

On the same page Mannie Garcia states, “In a telephone conversation on the 17th of February, Shepard Fairey acknowledged that my photograph was used and that credit should have been given as such.”. It should be noted that the telephone conversation between Mannie Garcia and Shepard Fairey took place on the same day that Professor Lessig posted ‘Crowd-sourcing a “fair use” case’ on his website. This begs the question-- why would Professor Lessig suggest that Shepard Fairey did not use Mannie Garcia’s photograph or attempt to devalue the importance of Garcia's photograph within the context of the Obama posters knowing that Shepard Fairey had acknowledged the use of the photograph to Garcia earlier that day? Perhaps he was not aware of the conversation between Garcia and Fairey? Either way, the Fair Use Project is going to have a tough time suggesting otherwise.

Professor Lessig’s entry titled, ‘Crowd-sourcing a “fair use” case’ appears to be an act of desperation in my opinion. After all, Lessig calls for readers to send Obama photographs similar to Mannie Garcia’s photograph to shep_use @ pobox.com. Again, this suggests that the Fair Use Project may try to project the idea that Shepard Fairey used a different image all together and that the owner of the base image may never be known-- or is an attempt to devalue Mannie Garcia's photograph by suggesting that it is nothing special or not copyrightable. Either way Fairey has admitted that he used Mannie Garcia’s Obama photograph and has suggested that he chose the image because of the power it conveyed. Could it be that the individuals representing Shepard Fairey are grasping at straw?

On a side note the email address strikes me as amusing-- Shep_use? ‘Shep use’ might be the correct usage for this case because Shepard Fairey’s “fair use” of the Obama photograph was anything but fair in my opinion. It reminds one that Fairey has been exposed for copyright infringement in the past-- such as the case of Rene Mederos . In that situation Shepard Fairey settled out of court with the Mederos estate after being exposed for having used a Mederos poster for a shirt titled ‘Cuban Rider’. Perhaps Lessig and the Fair Use Project is not aware of that?

Untitled Silk-screen poster - Rene Mederos, Cuba, 1972. This double portrait by one of Cuba’s most famous poster artists depicts the revolutionaries Che Guevara and Camilo Cienfuegos as seen on the Art for a Change article. A must read!

In that situation Fairey had printed a copy of the poster from a book about revolutionary art-- the author of the book, a friend of the Mederos family, recognized the image upon viewing Shepard Fairey’s shirt design. Shepard Fairey later claimed-- in an interview with Mother Jones -- that he did not know how to contact Rene Mederos for payment-- he was obviously unaware that Mederos had passed in 1996. A simple internet search would have enlightened Fairey. Fairey stated in the Mother Jones interview, "Well, how would I ever pay this guy anyway because he's in Cuba?". (It just goes to show how much the orphan works legislation would have failed had it passed.)

From Art for a Change-- Screenshot taken from the "Bombing Science" website 7/18/2007, where the Fairey rip-off of the Mederos poster had been sold as a T-shirt.

One interesting aspect of this situation is that Danziger Projects-- the gallery that informed Mannie Garcia that Shepard Fairey had used his photograph of Obama-- has since sold limited prints of Mannie Garcia’s photograph with profit going to Garcia. Anthony Falzone-- the Executive Director of the Fair Use Project who is representing Shepard Fairey directly-- has suggested that the limited edition prints of Garcia’s photograph is proof that the Obama photograph has increased in value. The only problem with this is that the Associated Press claims to own the copyright to the photograph. It also seems just a bit staged in my opinion-- almost as if individuals who are close to the case are trying to create something out of nothing in order to support Shepard Fairey. Hopefully the judge and jury will see past this obvious ploy.

In my opinion Lawrence Lessig and Anthony Falzone should have their integrity questioned. I base my opinion on prior cases they have supported and the contradictions and hypocrisy I observe in their support of Shepard Fairey. For example, in 2008 the Fair Use Project represented the Council on American-Islamic Relations (CAIR) in a case against radio host Michael Savage of the Savage Nation. Savage's character and interpretation of freedom of speech was questioned. I question why the Fair Use Project has failed to place Shepard Fairey under the same critical scope that Savage was placed under. After all, both Shepard Fairey and Michael Savage have tried to stomp on the rights of others-- both have taken action that goes against the mission of the Fair Use Project.

That case involved Savage’s claims that CAIR had infringed on his copyright by posting excerpts of his program on the CAIR website. I think Anthony Falzone’s case was warranted in that situation. However, in a Fair Use Project write-up about the case Falzone suggests that Michael Savage lacks integrity for having tried to block freedom of speech since he makes his living from said freedom. Falzone stated:

“The right to speak and the right to criticize speech you don't like are equally important. You'd think that Savage of all people, who depends on free speech to do what he does for a living, would understand that.”. In the article Falzone goes on to say, “If fair use protects anything, it protects the right to use portions of a copyrighted work to criticize it, so Savage lost his case quickly and decisively.”

Obviously Falzone does not feel that way about his current client. After all, Shepard Fairey has opposed creative freedoms in the past. That is why I have a problem with Anthony Falzone’s opinion in regards to the Fair Use Project supporting Shepard Fairey’s claim of “fair use” concerning the Obama photograph. After all, Shepard Fairey has revealed in the past that he is not a strong supporter of “fair use” in the first place-- if it involves an artist making a profit off of legitimate parodies of his art.

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.

In 2008 Shepard Fairey sent a cease-and-desist letter to artist Baxter Orr after finding out that Orr had made a parody of his Obey Giant image. Having viewed Orr’s parody I would say that it is “fair use” under both copyright and trademark law since by that time the Obey Giant image was known worldwide. There was no confusion about who created what-- people knew upon viewing Orr’s image that it was a parody and they knew who and what the image was commenting on. Let us not forget that Shepard Fairey has made a living off of creating parodies of copyrighted images and trademarks. However, that did not stop Fairey from claiming that Orr's image was not "fair use". Kind of reminds one of the views of Michael Savage concerning CAIR, does it not?

Baxter Orr’s image, titled ‘Protect’, criticized Shepard Fairey’s art as well as his status as a street artist. The image was quickly picked up by bloggers-- which resulted in further criticism of Shepard Fairey’s practice of “referencing” and status concerning the commercialization of street art. It was a prime example of why we have "fair use" in the first place. Apparently that did not sit well with Shepard Fairey. Fairey, as reported by the Austin Chronicle , called Orr a “mimic” and “parasite”. He did not agree that Orr’s image was “fair use”. He went as far as to suggest that it was damaging to the business aspect of his art. I would think that the Fair Use Project would have seen that as a call to arms.

The fact remains that Shepard Fairey tried to stomp out freedom just as Michael Savage had tried. With that in mind, shouldn’t Anthony Falzone and the Fair Use Project be critical of their client? Why did they extend him a helping hand in the first place concerning his past attack against "fair use"? Did they not know? If they did know I would think they would question Shepard Fairey’s integrity as they had suggested the integrity of Michael Savage be questioned. Perhaps they are just selective as far as their mission is concerned. Regardless, there is room to question the ethics and integrity of the Fair Use Project.

The key point can be found in Fairey’s reply on the Austin Chronicle. In the article Fairey states, “I have to deal with the bad end of it(copyright) sometimes. I’ve had to pay out.”-- he went on to say that the difference between him and Baxter Orr is that he will stop using an image once the copyright owner comes forward. In hindsight this opens a few questions-- why did Shepard Fairey not stick to his word concerning the Obama photograph and the Associated Press? Why did the Fair Use Project fail to give support to Baxter Orr when a famous artist trampled on “fair use“? Why is Anthony Falzone and Lawrence Lessig defending someone who trampled on "fair use" just over a year ago? The contradictions and hypocrisy is alarming. Where is the integrity?

Back to the Lessig article-- Professor Lessig’s entry closes with the following words, “please send any favorite examples of photos used as visual references for other works of art. We lawyers don't know much, but we can learn pretty quickly. Thanks for any help.” Help? It is easy to rattle the sabers by making this case into a 'media bully vs. poor artist' scenario. However, if we place the Associated Press aside and consider Shepard Fairey's past thoughts concerning "fair use"-- as well as the contradictions of the Fair Use Project-- it is just as easy to view this case as just another attack against the rights of the majority of living artists. One could also say that it is an attack on photography as a whole.

When evaluating Shepard Fairey's case against the AP remember that it is supported by individuals who have a vested interest in artists such as Shepard Fairey. Remember that it is supported by individuals who have strived to make it so that artists would be unable to challenge copyright infringement in a court of law as they can today. After all, an extended view of "fair use" implies that. Remember that only a small percentage of visual artists benefit from the extreme interpretations of “fair use” that Lessig and the Fair Use Project support.

The majority of visual artists have a lot to lose if “fair use” continues to be supported in an extreme manner. Should the majority of visual artists sacrifice their rights so that a relatively small number of visual artists can create with total disregard for the works of others? I don't think so. Should we devalue the legal aspect of works of art so that forms of art that rely on extreme interpretations of "fair use" can be secured? I don't think so. After all, it is not just artists like Shepard Fairey that we have to look out for-- I'm certain that many corporations would love it if visual artists were unable to legally defend the ownership of their work.

In fact, I would go as far as to say that some of these individuals would like nothing more than to see copyright made void. In my opinion, cases like this are nothing more than a clever ruse to take away from the rights of all artists. Don’t be fooled by their battle cry of upholding creative freedom. In reality these individuals stand for concepts that put your art and your business at risk. Isn't it hard enough for visual artists to protect their art as it is?

With the technology of today someone like Shepard Fairey can print off and use an image of an oil painting that may have involved months of work in the studio of some yet to be known artist. That said, the beauty of copyright protection is that said artist can defend his or her art knowing that he or she will be acknowledged. That is why copyright is important. Unfortunately, there are key players who hope to destroy that. They strive to take away from your hard work, from your business, and from your dignity. They will do this while waving the banner of creative freedom.

In conclusion, my opinion is that Lawrence Lessig, Anthony Falzone, and Shepard Fairey are going to need a lot of hope in their case against the Associated Press-- they are also going to have to defend some of their past positions, statements, and lack of action. True, “fair use” is needed. After all, artists-- such as Baxter Orr-- have used “fair use” as it is intended. “Fair use” is limited for a reason. If visual artists allow “fair use” to be extended in the extreme they can kiss the business aspect of their art, as well as their legacy, goodbye. If we stand for this I'm concerned that integrity will truly be lost.

Links of Interest:

Public Knowledge and the Orphan Works Bill -- Myartspace Blog
www.myartspace.com/blog/2008/08/art-space-opinions-public-knowledge-and.html

Brad Holland Responds to Public Knowledge -- Myartspace Blog
www.myartspace.com/blog/2009/01/brad-holland-responds-to-public.html

Fair Use: Shepard Fairey and Baxter Orr
www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Take care, Stay true,

Brian Sherwin
Senior Editor
Myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com