Shepard Fairey vs The AP-- what is the fight really about?

Shepard Fairey vs The AP-- what is the fight really about?


Anyone familiar with the myartspace blog knows that I have issue with some of the opinions of Shepard Fairey concerning copyright and appropriation-- to the point that my opinions on the matter have been quotes by the Boston Globe and other news sources. I’m not going to go into detail about the Fairey vs. AP case because it has been covered before on this blog and the information is fairly easy to find with a mere Google search. However, I will make it clear that I do not think that-- as Fairey suggests-- his stance concerning the AP is one of “fighting” the good fight to “ protect the rights of all artists”-- as mentioned on his Obey website, http://www.obeygiant.com/

Protecting Your Art Online

Protecting Your Art Online:

Since the advent of the Internet visual artists have been caught in a maelstrom between easy-- and accessible-- exposure for their art as well as the potential for images of their art to be used in ways they do not agree with-- in a sense, stolen. While it is true that the Internet has spurred a new form of art theft-- it has also paved the way for artists to gain exposure without the need for additional expenses that were warranted in the years before the World Wide Web. Thus, the desire-- easy exposure aside-- to protect ones work online is often a hot topic with visual artists from all walks of life and levels of professionalism.

Interview Magazine Copyright Infringement Controversy on Twitter and Facebook

Early this morning (May 12th, 2009) I decided to look at who some of my Twitter followers follow. While exploring Twitter I came upon the profile for Interview Magazine ( InterviewMag ). The icon image on the profile caught my eye-- it was an image of Andy Warhol that I recognized. In fact, I knew the moment I observed the icon that it was an issue of copyright infringement. I recognized the icon image and had a gut feeling that Interview Magazine-- and more importantly, Brant Publications, Inc.-- did not have rights to the image. The artist behind the image did not receive credit from Interview Magazine.

Interview Magazine used Judy Rey Wasserman's Psalm 19 (Andy Warhol) without permission.

I knew the moment I observed the Interview Magazine Twitter icon that the image was from an ink on paper portrait of Andy Warhol by Judy Rey Wasserman. I quickly contacted Wasserman ( judyrey )on Twitter in order to find out if she was aware of how the image was being used. Wasserman replied to me two hours later and confirmed that Interview Magazine had not asked permission to use her work, titled Psalm 19 (Andy Warhol), as an icon for their ‘official’ Twitter account. I stressed to Wasserman that Interview Magazine’s action was a perfect example of copyright infringement.

Interview Magazine Copyright Infringement Controversy on Twitter and Facebook Psalm 19 (Andy Warhol) Essence series 2007, Ink on paper, 12 x 9 inches by Judy Rey Wasserman -- which can be found at www.ungravenimage.com/essence.php and www.ungravenimage.com/blog. Check it out, Interview Magazine obviously did-- and have used the image in online branding / promotional efforts without giving Wasserman credit.

Oddly enough, Judy Rey Wasserman was thrilled that Interview Magazine had used her image of Andy Warhol as the icon for their Twitter profile-- even though they had done so without permission and without giving her credit as the artist behind the image. I understood why Wasserman was excited. After all, Interview Magazine was co-founded by Andy Warhol and Wasserman happens to be an admirer of Warhol’s work.

Wasserman was excited regardless of the fact that Interview Magazine had failed to ask permission or credit her. However, I still viewed it as an issue that trampled on the rights of a fellow artist. Wasserman did not agree with my opinion on the matter-- she stated that she felt like she had been “discovered”. My point-- if it happened to her it could happen to any artist. Thus, I decided to press on.

It was soon discovered that Interview Magazine had also used Judy Rey Wasserman’s Psalm 19 (Andy Warhol) as the icon for their InterviewNews Twitter account. Further still-- the same image by Wasserman was used on Interview Magazine’s official Facebook fan page-- without permission or credit-- as a way to promote the two Twitter accounts. Obviously the person(s) behind the accounts felt that Wasserman’s image was vital to their social networking branding efforts. I had to make sure that all three accounts were officially endorsed by Interview Magazine.

Detail from Interview Magazine's official Facebook fan page.

As it turns out, all three accounts-- the two Twitter accounts and Facebook account-- are considered ‘official’ by Interview Magazine. In other words, they are not profiles ran by fans of the publication. Someone hired by Interview Magazine was behind the choice of using Judy Rey Wasserman’s artwork 3 times without permission or credit. In fact, Interview Magazine promotes the Facebook page on the art publications official website-- and the two Twitter accounts on the Interview Magazine Facebook page.


I contacted Interview Magazine by email in order to find out if representatives were aware that an artists work was being used in their online branding efforts without permission or credit. I stressed that I felt the action of Interview Magazine in this situation was very unethical. As I pointed out to Wasserman, would Interview Magazine allow an artist to brand his or her business with one of their magazine covers without permission-- no. Needless to say, I have yet to receive a reply from the representatives of Interview Magazine.

I wanted to give Interview Magazine and Brant Publications, Inc. the benefit of the doubt by giving them time to take action. Several hours after I contacted Interview Magazine by email action was taken-- the Twitter icons involving Judy Rey Wasserman’s artwork had been replaced by a photograph of Andy Warhol.

Obviously someone from Interview Magazine was aware of my criticism and had switched the images-- what can only be perceived as an admission of guilt. The images were removed-- however, as of this time Wasserman has yet to receive a public apology from Interview Magazine. Was Wasserman discovered by Interview Magazine? No-- her rights have been swept under the rug.

Several hours after I contacted Interview Magazine the Twitter icons featuring Judy Rey Wasserman's Psalm 19 (Andy Warhol) were replaced by a photograph of Andy Warhol. Representatives of Interview Magazine have yet to respond to the infringement.

For those who don’t know, Brant Publications, Inc. is owned by billionaire art collector Peter Brant. Brant publishes Interview Magazine and Art in America-- one of the highest selling art magazines in the world. In my opinion, the rights of artists have really went to pot when established art magazines use images of artwork for their online promotional and branding efforts without giving credit where credit is due.

The actions of Interview Magazine (or at least the employee who maintains the Twitter and Facebook accounts) begs the question-- is this business as usual for the magazine that was co-founded by an artist who stated “good business is the best art”. In my opinion Interview Magazine has displayed very unethical behavior in handling this issue-- bad business involving an artists work and a violation of her rights.

I realize that many will say 'It is just an icon'. It was more than that-- it was a clear choice in support of the magazines online branding and promotional efforts. It was a business choice that placed the rights of an artist on the backburner. That said, I suppose it is possible that the copyright infringement controversy surrounding Interview Magazine may only last 15 minutes.

Links of Interest:

Judy Rey Wasserman’s website
www.ungravenimage.com

Interview Magazine
www.interviewmagazine.com

Take care, Stay true,

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

If Shepard Fairey can do it...

Shepard Fairey and his legal team have once again responded to the Associated Press. This time artist Shepard Fairey and his lawyer, Anthony Falzone of the Fair Use Project, suggest that the AP is hypocritical concerning their stance on copyright and the defense of “fair use”.

In a nut shell-- Fairey and Falzone have offered different examples of AP photographs of artwork-- from exhibit coverage and history in the making-- that were taken without “permission” -- all of which were taken for the purpose of reporting and newsgathering. Concerning the use of images without permission or licensing Fairey has boldly stated, “If the AP has the right to do what it’s done, then so do I.”.

Fairey and Falzone also suggest that the AP has listed the images for sale on The AP's image licensing database as a commercial product for "professional photo buyers.". However, sources have told me that the “professional photo buyers” are other news agencies and museums who desire to document the historic significance of the photographs. The AP also offers images for personal use-- such as a photograph of a historic event to hang in your home. However, I was not able to find any of the mentioned photographs listed for personal use.

Note: One thing I noticed about Shepard Fairey and Anthony Falzone’s statement is that they conveniently left out some key details about the photographs the AP offer for sale. Thus, I invite you to look at what the AP says about the images they offer for sale :

“AP Images is a source of images for professional photo buyers. However, you can purchase open edition reprints of AP photos for home or personal use through our partner Pictopia. Using state-of-the-art laser enlargers to produce museum-grade photographs and special archival materials in production and framing, Pictopia creates images that will last a lifetime. Images purchased for personal use may not be used commercially (in publications, brochures, advertisements, copies to sell, etc.) or reproduced for any use.”

Shepard Fairey’s recent statement can be found on his Obeygiant website as well as his blog on The Huffing Post . Know in advance that the Huffington Post moderator will most likely not accept a comment if the comment sides with the AP on this case or points out specific contradictions involving Shepard Fairey & Obey Giant Art Inc. concerning “fair use“.

Note: Keep in mind that Shepard Fairey is known for sending cease-and-desist letters to artists who comment on or parody his widely known artwork. In other words, you probably won’t find Baxter Orr or the creator of Steelerbaby mentioned in the comment section of The Huffington Post article titled, 'If the AP Has the Right to Do What It’s Done, Then So Do I'. Why? Because Shepard Fairey is not the champion of “fair use“ that he portrays himself to be.

Allow me to expose some of the contradictions of Shepard Fairey’s recent statement. Fairey declares, “As I have stated before I am fighting the AP to protect the rights of all artists…”-- if that were true-- if Shepard Fairey felt so strongly about the rights of fellow artists-- wouldn’t he respect the exclusive rights that artists have under copyright? Or the exclusive rights that the estates of deceased artists, such as the Rene Mederos estate , have under copyright?

Rene Mederos’s work was still protected under copyright when Fairey decided to use one of his images for a shirt design without permission, credit, or compensation. His reason-- after being exposed for infringement I might add-- for not contacting the copyright owner can be found in an interview Shepard Fairey had with Mother Jones-- "Well, how would I ever pay this guy anyway because he's in Cuba?" . Obviously the estate of Rene Mederos had no problem contacting Shepard Fairey. The shirt design was pulled from production and distribution.

Fairey goes on to suggest that he would like everyone to have the same “broad rights of fair use and free expression“ that the media, such as the AP, has. What Fairey fails to understand is that the defense of “fair use” favors newsgathering sources. That said, I’m sure that Fairey and his company, Obey Giant Art Inc., would love to have the same extended interpretation of “fair use” for his commercial interest. One could suggest that Shepard Fairey needs an extended interpretation of "fair use" to dominate in order to have continued success. Does he really want that though? Perhaps members of the Fair Use Project are whispering in his ear?

If Shepard Fairey's statement were honest-- which it is not if you go by his past actions-- why did he send cease-and-desist letters to Baxter Orr and Steelerbaby ? Why did Fairey call Orr a “parasite”, “mimic”, and “profiteer” for claiming the defense of “fair use” after Orr made a social comment and parody of Fairey‘s widely known ObeyGiant image? Why did Obey Giant Art Inc. representative Olivia Perches state "Anything with 'Obey' on it they can't have." in response to Larkin Werner’s Steelerbaby store on Cafepress-- implying that only Shepard Fairey can use the word ‘obey' in a work of art or design? Fairey's words and actions don't mesh. Could it be that Shepard Fairey is obeying the advice of his peers?

Note: Shepard Fairey's Obey Giant Art Inc. forced Cafepress.com to remove the Steelerbaby merchandise due to the fact that it involved the word ‘obey’ and the phrase ‘Obey Steelerbaby’. However, Fairey apparently lifted the cease-and-desist order after bloggers and the media picked up on the story.

Fairey goes on to suggest that the AP can’t “have it both ways”-- in other words, Fairey suggests that the AP should not be able to photograph artwork and art exhibits while at the same time defending their photographs when artists use them as he did with his Obama posters. Fairey fails to grasp the fact that under current law media sources, such as the AP, can take said photographs. Fairey also fails to mention that, unlike him concerning aspects of his artwork, the AP gives credit to artists when they photograph artwork and art exhibits. The point-- Fairey needs to realize that people don’t necessarily change laws by breaking them or by making a mockery of current law.

There is a need to keep things in perspective-- Shepard Fairey is not some wide eyed teen-- he is a man inching ever-closer to 40 years of age who obviously knows how to use the law in his favor when individuals infringe upon his artwork. If his current position on “fair use” is honest he could have went about it differently prior to infringing on the copyright of the AP. I don’t think current copyright law will be changed when individuals, such as Shepard Fairey, prove that “fair use” should be limited in order to protect the rights of copyright owners.

That said, if Shepard Fairey and Anthony Falzone of the Fair Use Project desire to extend the interpretation of “fair use” to the point that copyright can be bypassed for all purposes they will find that the majority of the art community-- which they are obviously trying to gain support from-- will not support them. After all, one does not have to look back too far in order to see how artists come together in support of strong copyright.

I assume that Fairey does not remember the number of artists and art organizations that stood against the orphan works legislation in 2008-- which, if passed, would have made it harder for artists, photographers, and other creatives to defend the rights to their work in court. The legislation would have benefited copyright infringers-- which is why so many artists raised their voice against it.

Note: If the 2008 orphan works legislation had passed it would have removed some of the court awarded damages that discourage copyright infringers in the first place. It should be mentioned that Brad Holland , a notable illustrator, was one of the leading figures in the fight against the 2008 orphan works legislation.

As the saying goes, pick your battles. If the Associated Press loses to Shepard Fairey & Obey Giant Art Inc. it will set a legal precedent that will greatly harm artists who desire to uphold their copyright in court when individuals and companies, such as Obey Giant Art Inc., infringe upon their rights. If Shepard Fairey and his company, Obey Giant Art Inc., can do it other companies will have a better chance of doing it-- to fellow artists... to you.

A win for Shepard Fairey and his company, Obey Giant Art Inc., will be a loss for the art community-- it will be a loss for the majority of artists who enjoy the protection that copyright offers, a loss for art dealers who work very hard to establish a market for the artists they represent, and a loss to art collectors and other clients who desire-- and expect-- unique works of art.

Needless to say, I have responded to Shepard Fairey in the past and will continue to respond as long as he attempts to distract the public-- specifically the art community-- from what I assume are his true intentions. One should question the artist who says to “question everything” when the contradictions and hypocrisy of his words and actions are so apparent.

The fact that Shepard Fairey obviously feels that he can dupe the public-- specifically the art community-- is a sign of brutal arrogance in my opinion. He must be called out for it.

Note: A response from the AP-- Paul Colford, Director of Media Relations for The Associated Press, has released the following statement in response to Shepard Fairey and Anthony Falzone:

“The Associated Press is still in the process of reviewing Mr. Fairey's response to its Counterclaims, but it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP's copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities. Even more disappointing is the fact that Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used. We note that Mr. Fairey admits that he engaged in the hypocritical conduct discussed in the AP's Counterclaims, including using the work of others without obtaining a license while at the same time threatening others for using his own works.”

Take care, Stay true,

Brian Sherwin

Senior Editor

www.myartspace.com

Myartspace Blog on Twitter

www.twitter.com/myartspace_blog

Copyright Infringement: Richard Prince and Larry Gagosian respond to Patrick Cariou's lawsuit

Right: Collage by Richard Prince. Left: Photograph by Patrick Cariou

The issue of copyright infringement and “fair use” concerning visual art has been a hot topic as of late. For example, the mainstream media has devoted attention to the case involving Shepard Fairey and the Associated Press concerning Fairey’s infringement of an AP owned photograph taken by Mannie Garcia. However, there is another important copyright infringement case in the works that has received little press compared to the Fairey AP clash-- even though the outcome of the case is just as important to the art world and to copyright law as we know it. That situation involves photographer Patrick Cariou, Richard Prince, exhibit catalogue publisher Rizzoli, Gagosian Gallery, and art dealer Larry Gagosian.

For those who don’t know about the case-- Patrick Cariou, a photographer and author, filed a lawsuit against Richard Prince in December of last year after Richard Prince and Gagosian Gallery failed to acknowledge his cease-and-desist letter. Cariou’s lawsuit claims that photographs used by Prince for a series of collages were illegally borrowed from his book Yes Rasta-- which was registered in 2001.

Cariou claims that his photographs were illegally used in at least twenty Richard Prince collages exhibited by Gagosian Gallery in 2008. The collages, eight of which were sold, were priced between $1.5 million and $3 million each. Prince did not give the photographer credit or offer compensation-- and has since suggested that Cariou is a mediocre photographer.

As mentioned, Patrick Cariou did not stop with just Richard Prince-- the suit, which was filed in a U.S. federal court, also targets the Gagosian Gallery, the owner of the gallery Lawrence Gagosian, and the publisher of the exhibit catalogue, Rizzoli. Cariou’s suit claims that all parties were involved in the infringement. Thus, if the court rules in Cariou’s favor the precedent may play a role in the willingness of publishers, art galleries, and art dealers as far as working with artists who have a history of copyright infringement allegations.

In other words, if the court favors Patrick Cariou art dealers may think twice before exhibiting or promoting artists who have a history of copyright infringement allegations against them due to the potential financial burden that would occur if the infringer is exposed by a copyright owner. On that same note, publishers may refuse to create exhibit catalogues for artists who are known copyright infringers. Needless to say, a win for Cariou-- and for copyright-- could potentially change the ’landscape’ of the art world as well as the art market in general.

Richard Prince and Larry Gagosian have-- for the most part-- been silent about Patrick Cariou’s allegations-- until now. Gagosian’s lawyers have responded to Cariou’s lawsuit. The Gagosian legal team suggests that Prince’s use of Cariou’s photographs are protected under “fair use”. They suggest that the collages are acceptable due to the fact that Cariou’s photographs of Rastafarians in their native environments are “factually based”. Gagosian’s legal team goes on to suggest that the exhibition of the collages was not “commercially exploitative” and that the collages were created with a “genuine creative rationale” in good faith.

Richard Prince-- who is considered to be a pioneer of appropriation art and is often cited by copyright infringers-- has stated that Patrick Cariou’s photographs are not “strikingly original” or “distinctive in nature” and that his collages are “sanctioned under fair use”. Prince has also suggested that his use of Cariou’s photographs “poses no harm” to the value of Cariou’s work and that his use has instead increased the value of Cariou’s photographs. Prince also stated that his use of Cariou’s images reflect “established artistic practices”. However, Patrick Cariou and other supporters of copyright obviously have a different take on the situation.

Patrick Cariou has suggested that the unauthorized use of his photographs has harmed the integrity of his book Yes Rasta-- which involves photographs spanning a decade. Cariou has also suggested that Richard Prince would not have used 30 of his photographs if he were just a mediocre photograph. He feels that Richard Prince and Larry Gagosian are arrogant for suggesting that his photographs are not original or distinctive.

In the suit Patrick Cariou demands that the unsold artworks and exhibit catalogues be destroyed. Cariou also demands that the owners of the sold paintings be informed that it is illegal to display the work. This means that if the court sides with Cariou you will be hard pressed to find the Richard Prince collages involving Cariou’s work exhibited in a public collection-- or anywhere else for that matter. Needless to say, this case could be groundbreaking in that it will establish some order concerning how “fair use“ is interpreted-- either for or against it. The outcome of this case will drastically change the art world / art market.

While Shepard Fairey’s case against the Associated Press is a breeding ground for media buzz one could argue that the outcome of Patrick Cariou’s lawsuit against Richard Prince and Larry Gagosian is debatably more important for artists to observe-- especially artists who support copyright. It is true that if Shepard Fairey / Obey Giant Art Inc. wins against the AP it will set a legal precedent that will give companies-- like Obey Giant Art Inc.-- more pull when using copyrighted images for merchandise. However, the case involving Patrick Cariou and Richard Prince hits closer to home within the art world.

The case involving Cariou, Prince, and Gagosian will set a legal precedent that will effect the ability of artists to protect their copyright within the art world itself-- to protect their work from gallery represented artists and art dealers who-- debatably-- have more financial resources going into a case involving copyright infringement. Thus, emerging artists who support copyright should keep an eye on the outcome of Cariou’s lawsuit. I would go as far as to say that art dealers who support strong copyright should keep a watchful eye on the case as well.

Honestly, artists are not the only individuals harmed by weak copyright protection. Art collectors and art dealers can be harmed as well. Why invest in a work of art if it can be mass produced without restraint by any individual or company? The art market will be meaningless if we continue to stand back while copyright is chipped away to the point that artists are unable to uphold their copyright in court. Is my opinion extreme? Perhaps. However, there are enough examples of extreme interpretations of “fair use” to go around-- and people blindly accepting it-- to cause concern.

Links of Interest:

Fair Use in a Nutshell:A Roadmap to Copyright's Most Important Exception -- CopyLaw
www.copylaw.com/new_articles/fairuse.html

Richard Prince and Gagosian fight back over copyright -- The Art Newspaper
www.theartnewspaper.com/article.asp?id=17147

Patrick Cariou Versus Richard Prince -- Myartspace Blog
www.myartspace.com/blog/2009/01/patrick-cariou-versus-richard-prince.html

Photographer Patrick Cariou Sues Richard Prince for Copyright Infringement
www.pdnonline.com/pdn/content_display/photo-news/photojournalism/e3i4b1f65d43468689993c27258f9c4eaf0?imw=Y

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

Disobey Shepard Fairey

Larkin Werner's 'Obey Steelerbaby' next to a poster by Shepard Fairey.

Last month Shepard Fairey was interviewed by Terry Gross for NPR. The world renowned artist discussed his pre-emptive lawsuit against the Associated Press due to the media giants copyright infringement allegations concerning his Obama posters-- Fairey had used an AP owned photograph by Mannie Garcia as the base image for his posters. Fairey is represented by Stanford Law School's Fair Use Project (FUP)-- an organization that claims to support an extension of the boundaries of "fair use" in order to “enhance creative freedom“. However, it appears that Shepard Fairey does not agree with FUP 100%-- at least when his work is used by others under "fair use".

Based on Shepard Fairey's recent statements you would think that he would fully support artists using his widely known images under "fair use". After all, in the NPR interview Fairey suggested that his lawsuit against the Associated Press is important because he views it as standing up for the rights of artists who create art that is protected under "fair use". However, Shepard Fairey has a history of threatening artists with legal action when they utilize his famous artwork under "fair use"-- even if the artist did not willfully infringe. The most recent situation involves graphic designer Larkin Werner and his Cafepress store.

Early last month-- before the NPR interview-- Shepard Fairey’s Obey Giant Art Inc. sent www.cafepress.com a cease-and-desist letter concerning a Cafepress store titled Steelerbaby-- Larkin Werner‘s account. Obey Giant Art Inc. took action due to the fact that Werner had been selling a version of his ’Steelerbaby’ doll that involved the word ‘obey’. Shepard Fairey feels that the merchandise involving the word "Obey" is an infringement on his trademark. However, Werner claims that his use of ‘obey’ was not inspired by Shepard Fairey. In fact, Werner has suggested that “Obey Steelerbaby’ is one of several catch phrases spoken by the doll at, www.steelerbaby.com. The obey phrase is popular among fans of Steelerbaby.

Obey Giant Art Inc. took issue with Werner due to the fact that the graphic artist had designed merchandise based on the popularity of Steelerbaby’s "Obey Steelerbaby" catch phrase. The merchandise, which was sold on Cafepress, involved pictures of the Steelerbaby doll standing between the words “Obey” and “Steelerbaby” while others featured the word “Obey” above the doll. According to the Pittsburgh City Paper, Werner-- who is based in Pittsburgh-- had earned around $70 from selling “Obey Steelerbaby” merchandise on Cafepress. That said, Shepard Fairey’s representatives feel that Werner’s “Obey Steelerbaby” merchandise is a direct threat to Shepard Fairey’s trademark and business.

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". Needless to say, Larkin Werner feels that Shepard Fairey is being a hypocrite due to the fact that Fairey has established a career from creating images under "fair use" of copyright and trademark law.
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.

This is not the first time that Shepard Fairey has attacked "fair use". In 2008 there was a story concerning “fair use” and Shepard Fairey in The Austin Chronicle. The situation involved the famous Shepard Fairey and emerging artist Baxter Orr. Orr created a parody of the iconic Obey Giant image-- which he distributed and sold. Orr-- being cynical of Shepard Fairey -- strived to make a visual statement about Fairey’s art and practice in general. One could say that Orr’s appropriation of the Obey Giant image was in itself a statement on Fairey’s practice of appropriating from other artists.

Viewers of the work recognized that Orr had made a visual statement about Shepard Fairey and the Obey Giant image. There was no confusion as to who made what. Thus, it did not take long for Orr’s image to be picked up by art bloggers-- which stirred debate concerning Fairey’s artwork, the copyright infringement allegations that have shadowed Fairey’s career, and Fairey’s own history of appropriation.

Eventually Orr received a cease-and-desist letter from Obey Giant Art Inc. However, Orr continues to sell his parody, now titled ‘Protect Yourself -- Giant’, for $25.00 on his website, www.baxterorr.bigcartel.com. Oddly enough, some artists have started to parody the situation between Baxter Orr and Shepard Fairey:
A parody of the Orr, Fairey, and Associated Press disputes by Dan Nolan.

I find it odd that Shepard Fairey suggested on NPR that he is fighting for the rights of all artists concerning “fair use” when earlier that month he had sent a cease-and-desist letter to Larkin Werner. After all, supporters of Shepard Fairey have suggested that the Associated Press has “bullied” Fairey-- some have went as far as to suggest that the AP has attacked "fair use". You would think these strong supporters of "fair use" would call Shepard Fairey out just as they have called the AP out concerning "fair use". Right?

One must ask-- where was Lawrence Lessig, Anthony Falzone, the Fair Use Project, and other supporters of extreme interpretations of "fair use" when Shepard Fairey 'bullied' Baxter Orr and Larkin Werner concerning issues involving “fair use”? Is Shepard Fairey truly fighting the good fight for “fair use” or is he, as the Phantom Street Artist suggested, fighting for “Fairey use”?

The contradictions involving Shepard Fairey are widespread. Unfortunately, the major media has barely reported on this aspect of Shepard Fairey and "fair use". Instead, most have conveniently championed Fairey as an advocate for “fair use”-- which is obviously false. If anything, Shepard Fairey is a champion for his own work involving "fair use".

In closing, I think Shepard Fairey needs to realize that artists can, and will, use trademark protected images under “trademark fair use” within the context of their own work. I’m not against “fair use”-- though I do think it should be limited. That said, if Shepard Fairey is allowed to extend the boundaries of “fair use” I think he needs to realize that he is opening the doors for his own work to be exploited by legal gray areas. My guess is that artists and other creative individuals will continue to disobey Shepard Fairey's copyright and trademark-- especially if he wins his case against the Associated Press. Be careful which doors you open Mr. Fairey-- they may lead back to you.

UPDATE: It appears that Shepard Fairey has dropped his cease-and-desist against Cafepress and Larkin Werner's Steelerbaby store. My sources tell me it was dropped on March 10th-- just days after this post. There are three rumors floating around as to why the cease-and-desist was dropped:

1.) Shepard Fairey did not want the negative press going into his case against the Associated Press-- kind of hard to be a champion of "fair use" when you oppose it, true?

2.) Lawrence Lessig, Anthony Falzone, and the Fair Use Project did not want negative press concerning contradictions of "fair use" in regards to their client-- Shepard Fairey. After all, the Fair Use Project supports an extended interpretation of "fair use" in general. It would not look good if their client flip-flops on his opinion of "fair use".

3.) Shepard Fairey did not want negative press-- period. It seems the press honeymoon is over. Recently Shepard Fairey has been ripped apart by the press-- a far cry from the constant praise he received for months due to his work for the Obama campaign.

Werner's 'Obey Steelerbaby' items have returned to Cafepress, www.cafepress.com/steelerbaby

Links of Interest:
Steelerbaby Blues by Chris Young -- Pittsburgh City Paper
www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932

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

Birds of a Feather Flock Together: Damien Hirst & Shepard Fairey / Cartrain & Baxter Orr by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/02/birds-of-feather-flock-together-damien.html

Artist Cage Match: Fairey vs. Orr by Richard Whittaker -- The Austin Chronicle
www.austinchronicle.com/gyrobase/Issue/story?oid=oid:625022

Integrity Lost: Lawrence Lessig helps Shepard Fairey by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/02/integrity-lost-lawrence-lessig-helps.html

The Phantom Street Artist speaks out against Shepard Fairey in Citizen LA by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/03/phantom-street-artist-speaks-out.html

Take care, Stay true,

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

Lawyers and Law Professionals Weigh-In on Shepard Fairey Copyright Infringement Allegation

A comparison of the Obama photograph taken by Jim Young (bottom) and the Obama photograph taken by Mannie Garcia (top) concerning Shepard Fairey’s ’Hope’.

The issue of Shepard Fairey, Mannie Garcia, and fair use has sparked a debate among the copyright law community online. The debate is centered on a press photo of Obama taken by Mannie Garcia that Shepard Fairey used in order to create his stencil portrait of Obama titled ‘Hope’. 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 Garcia’s photograph and failed to give the photographer credit.

Fairey has stated that he did not know who the photographer of the Obama photograph was and that he found the image randomly online. However, Mannie Garcia claims that the Danziger Gallery, which represents some of Fairey’s art, contacted him on the 21st of January 2009 to inform him that his photograph was in fact the basis for Fairey’s Obama posters. These conflicting reports demand answers. Could it be that Shepard Fairey knew who the owner of the photograph was all along? If so, why did he not reach out to Mannie Garcia? Did he intentionally avoid contacting Mr. Garcia due to monetary reasons?
Did he willfully infringe upon Garcia’s copyright?

From what I’ve read it appears that art law professionals are split on the issue. Peter Friedman, a visiting Professor at the University of Detroit Mercy Law School, has stated, “The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative”. However, 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 photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.

The Art Law Blog has mentioned that 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 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.”

Richard Lacayo , writing for TIME, has stated that Mannie Garcia will have difficulty if he changes his mind about taking Shepard Fairey to court. Lacayo stated, “And if he changes his mind about the not-seeking-money part? He might find it hard to make a case in court. In lawsuits over image appropriation, judges commonly try to decide whether an artist's re-use of earlier material is "transformative". If the new image passes that test, the appropriation is protected by the fair use doctrine, which permits limited reproduction of copyrighted material.”. However, Lacayo goes on to say, “the law in this area is vague and outcomes are very unpredictable. That's even the view of Pierre Leval, the federal appeals court judge who first proposed the influential "transformative" standard in a 1990 Harvard Law Review article.”

Based on the comments I’ve read concerning this issue it appears that many individuals in the art and photography community would like Mannie Garcia to take legal action against Shepard Fairey in order to send a clear message to other individuals and corporations who infringe on copyright protected images. Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.

A debate among lawyers and other interested individuals can be found at PrawfsBlawg . Shepard Fairey has yet to comment about the copyright infringement allegation involving Mannie Garcia’s Obama photograph. However, he has stated that the Obama posters, “Belong to everyone”. That said, he has previously threatened to take legal action against individuals who have profited off the posters and artists who have infringed on the posters copyright.

In the past Fairey has stated that artists who question the validity of his work are “jealous” of his success or that they are distracted by “apathy”. Some of those charges have been thrown at me for being critical of Fairey's art. Mr. Fairey, most artists just want to make sure that copyright is acknowledged and that the rights of fellow artists are respected. A businessman such as yourself-- having defended your own copyrights-- should understand that. If you feel that my opinions are wrong you are more than welcome to contact me in order to set the record straight. If you want a gloves off interview… I’m game.

Links of Interest:

Ripped and Altered? What You Need to Know -- Myartspace Blog

Imagine Fair Use -- Myartspace Blog

Shepard Fairey: Obey Copyright -- Myartspace Blog

The Intentions of Shepard Fairey Should Be Examined -- Myartspace Blog

Obama’s Obedient Artist: Is Shepard Fairey a Farce? -- Myartspace Blog

Productive Use, Transformative Use, Complementary Use: Who’s Right? -- The Patry Copyright Blog

Issues of Copyright Infringement and Shepard Fairey‘s Obama Poster -- Nothing Wavering

Shepard Fairey - Copyright - Orphan Works - and YOU! -- Collage Clearinghouse

Take care, Stay true,

Brian Sherwin

Senior Editor

myartspace.com

www.myartspace.com

New York Art Exchange

www.nyaxe.com

Shepard Fairey: Obey Copyright

(There is an update on this story near the bottom)

According to Reuters a blogger has discovered the source material of Shepard Fairey’s image of President Barack Obama titled ’Hope’. Michael Cramer took it upon himself to discover the identity of the photographer who took the Obama photo that Fairey had used as a resource for the now “iconic” poster. Fairey has openly stated that he found the images while searching for Obama image on Google. Cramer eventually found a match-- a photograph of Obama taken by Reuter’s veteran photographer Jim Young.

According to the Reuters article the photographer does not care that Shepard Fairey used his photograph without permission, stating, “I’m honored, but I’m glad it didn’t come out until after the campaign,“, he went on to say, “I think even if I had known it was mine, I would have kept quiet. It would be just my little secret.” I’m not sure what Young is implying with his statement-- perhaps he thinks that Obama would have lost support from the art community had it been revealed at that time?

On one hand you can say that Jim Young is being admirable. However, on the other hand you can say that he is being foolish-- working against his profession. After all, there has been heated debate about potential Orphan Works legislation for years now. Over 60 visual art and photography organizations have stood against Orphan Works legislation.

Thus, the issue concerning Fairey’s use of Jim Young’s image without permission or credit is a perfect example of how Orphan Works legislation can harm artists if it is passed at some point in the form we have come to know it. Needless to say, I feel that it is of the utmost importance that the needs of so many creative professionals be acknowledged. In other words, the issue is not about Young taking this alleged infringement by Shepard Fairey with a grain of salt-- the issue is that this could have happened to any visual artist, any photographer, anyone. You.

This is why it is important for works by living artists to remain protected. The current legal repercussions for copyright infringement should remain intact so that creators can adequately defend their copyright protected works and receive the compensation they deserve when their rights are infringed upon. This is why Jim Young-- assuming he holds the copyright for the image-- should consider using what has happened as a way to gain momentum concerning the debate over copyright.

Having some knowledge of Shepard Fairey’s history of alleged copyright infringement and examples of him settling out of court I knew in my gut that eventually the truth would come to light. I was not the only one with concern. Now that the truth is free-- or allegedly free-- I can only hope that those involved will do the right thing. What do I hope for?

*I hope that Shepard Fairey will think twice before using random images that he finds.

*I hope that Shepard Fairey will respect the rights of fellow artists and serve as an example for upholding and respecting copyright laws.

*I hope that the present form of Orphan Works legislation is never passed and that people use this story as an example of why it is dangerous to creative professionals.

*I hope that people can set their emotive support for the ‘Hope’ poster aside in order to see that this is an issue of artist rights.

*I hope that the media will notice that this is the perfect time to discuss the rights of artists and legislation that may harm those rights.

*I hope that President Barack Obama will be a true champion of the arts and protect the rights of the creative community-- rights that we need in order to be productive and successful.

*If there is anything to this story-- even if Jim Young refuses to defend his copyright-- I hope that President Barack Obama will reject any further “help” from Shepard Fairey as a sign of solidarity with hundreds of organizations and millions of artists, art buyers, and artist rights advocates who support copyright protection.

Let us pretend that Jim Young was infuriated with Shepard Fairey. Let us assume that he wanted to defend his copyright and seek damages from the controversial artist. I’m not a lawyer, but I do have some basic understanding of copyright law based on conversations I’ve had with attorneys and other individuals who work closely with copyright issues. My opinion is that this would be a case of copyright infringement due to several factors:

* Making copies of a work that is based on a copyright protected image is copyright infringement unless the artist has permission from the photographer to utilize his photograph within the context of the artwork. In this case Shepard Fairey and his business partners should have had permission from Jim Young before distributing posters derived from Young’s photograph of Obama.

* Fair Use can only protect an artist like Shepard Fairey to a certain point. Fair Use is acceptable when an artwork is copied for purposes of criticism, comment, news reporting, teaching, scholarship, and research. However, the right-- the Fair Use defense-- is not absolute. I think printing thousands of posters involving the image is well beyond Fair Use. The issue is not that Fairey used an image of Obama-- his First Amendment rights allows him to do so-- the issue is that he did not seek permission from the photographer from which his image was base.

Since Shepard Fairey worked closely with companies that distributed the image-- and since Fairey technically runs a company-- the venture was predominately a commercial one regardless if “all of the money” was donated to the Obama campaign. After all, someone profited off of it. There are even reports that Shepard Fairey sold Urban Outfitters exclusive rights to some of the merchandise. All of this would come out if Shepard Fairey had to defend his Fair Use of Jim Young’s Obama photograph. In this scenario the photographer could take action against Shepard Fairey and others who helped promote and sell the image.

If this issue were to go to trial the jury would consider the potential value or market of the original work-- in this case Jim Young‘s photograph. In this scenario jurors would decide whether the alleged infringement sought to supplant or divert sales away from the original work. One could say that Shepard Fairey intentionally diverted attention away from Young’ photo of Obama-- he did not give the photographer credit nor did he ask permission. The court would decide if Shepard Fairey’s ‘Hope’ suppressed the market or value of Jim Young’s photograph.

In a sense, both the artist and the photographer would be at the mercy of the jury. However, in cases like this the jury will think more about facts than law. So the fact that the portrait of Obama in Fairey’s ’Hope’ matches when flipped and placed over Young’s photograph would not bode well for Fairey’s defense of Fair Use in that scenario. It would be a case of Copyright versus the First Amendment. I will say that I think Jim Young would have a lot of support if he decided to take action. Personally I think he is obligated to take action if indeed he holds the rights to that specific images. There are many photography organizations and visual arts organization fighting against infringement like this due to ongoing Orphan Works legislation. It would be a major win for copyright supporters in the arts community.

*Copyright infringement does not have to be word-for-word copying-- it does not have to be literal. In fact, the total concept and feel of a work can also be protected by copyright. There is no specific percentage that needs to be reached before a work can be considered infringement. Since the placement of the face is exactly the same other than being flipped I think that it is possible that infringement occurred.

*One could claim that Shepard Fairey’s version of the photograph is a derivative work-- that Hope is derived from Jim Young’s photograph. However, the owner of a copyright protected work has the exclusive right to prepare derivative works and authorize others to do so. Thus, Shepard Fairey would have had to obtain permission from Jim Young in order to create, print, and distribute works derived from Young’s photograph of Obama.

*One could say that Shepard Fairey’s image is acceptable based on appropriation. However, appropriation-- a work that involves appropriating the property of someone else in order to claim it within his or her own work-- is hard to define and would most likely be up to a jury to decide. Appropriation is not a solid defense. Some artists have lost small fortunes over the issue.

In court the judge and jury would examine three points when observing an alleged violation of copyright infringement. First, they would find out if the artist had access to the work he or she infringed upon. Shepard Fairey had access to the image-- he admits that he found it online doing a Google search for Obama images. Second, they would examine if any copying had occurred by viewing the original work-- the photograph-- alongside the work that allegedly infringed upon the original work. Look at Michael Cramer discovery. Third, the jury would decide if the copying was substantial. Again, it would really boil down to how that specific jury felt at that specific time.

If Jim Young owns the copyright for the photograph and has officially registered it he would be able to pursue a copyright infringement lawsuit against Shepard Fairey easily. If the photograph is registered Young would be eligible for "statutory damages"-- meaning that Fairey would have a lot to lose in court. Young could possibly take action against Evolutionary Media Group as well for helping in the print and distribution process.

Shepard Fairey and Evolutionary Media Group printed over 300,000 posters (probably more) without permission from Jim Young-- assuming our imaginary jury sided with Young-- the story involving the mass printing and distribution of different versions of the poster is well documented online. The business partnership between Shepard Fairey and Evolutionary Media Group is also well documented online. Various quotes from Shepard Fairey, Yosi Sergant, and others would no doubt be heard in this scenario.

In this scenario I don’t know if Jim Young could target the Obama campaign organizers because they did not officially contract Shepard Fairey for the image-- depending on which article you read and at what date it was published. Needless to say, there are conflicting reports about Shepard Fairey‘s unofficial-official connection to the Obama campaign and fundraising. Recent articles state that Shepard Fairey was not contacted directly by the Obama campaign and that his work for the campaign was not “official“.

However, Maureen Callahan of the New York Post reported (on April 24th 2008) that Fairey had stated that he did not want to do something for the Obama campaign “without proper authorization”. Callahan also reported that Fairey worked closely with the Obama campaign communications director Scott Goodstein on the design of the poster.

A Wired article (from September 21st, 2008) quotes Shepard Fairey as saying that he did not want to be an “unwanted endorsement” for the Obama campaign. Thus, he waited for the “unofficial wink and nod to do the image.” which ended up being promoted heavily by the Obama campaign--- I’m sorry folks, that sounds official to me.

Oddly enough, in the same Wired article Fairey does not hide the fact that he drew some inspiration from Alberto Korda’s famous shot of revolutionary Che Guevara for his Obama image--- so why did he not give credit to Jim Young as well? The article goes on to say that Shepard Fairey was eventually contacted by the Obama campaign to create an “officially-approved” version including a campaign approved slogan, ‘Hope’, instead of ‘Progress’.

However, the same portrait, allegedly from Jim Young’s photo-- was used. The article also stated that the campaign desired Fairey to use a "campaign-approved" photo. If the Wired article is correct would that not mean that the Obama campaign is also responsible for the alleged copyright infringement of Jim Young’s photograph-- assuming that he owns the copyright and is willing to defend it? Keep in mind that the Obama campaign earned over $400,000 from Fairey’s Obama themed merchandise. I wonder how much Jim Young earns per year?

There are many contractions concerning stories about Shepard Fairey and his work with the Obama campaign. I’m certain that Michael Cramer’s discover will only add to the chaos. The truth may be forever buried under the rubble of regurgitated articles about Shepard Fairy’s ’Hope’ poster-- which I firmly believe was hyped by stealthy pr tactics instead of a grass roots initiative.

I don’t know if Jim Young owns the copyright to the photo. It may very well be owned by Reuters. It might be open to the public to use. However, what if that is note the case? What if it did not happen to Jim Young and Reuters? What if Shepard Fairey randomly stumbled upon one of your copyright protected images online and “referenced it”? What if he made $400,000 in profit off of the manipulated image? What if the Orphan Works legislation of 2008 had passed and you had lost your right to seek adequate compensation in a court of law? That is what this is about people. I’m certain the family of Felix Rene Mederos Pazos would have an opinion about it.

Update Concerning Shepard Fairey Photograph Controversy:

Apparently the photography issue surrounding Shepard Fairey’s poster ‘Hope’ has been solved again. Earlier reports by Reuters stated that Michael Cramer had discovered the specific photograph that Shepard Fairey had used without permission and without giving credit. Reuters confirmed that the photograph had been taken by one of their veteran photographers, Jim Young.

A new article by TIME has thickened the plot. Michael Scherer reports that the origins of Shepard Fairey’s hope have been traced to a photograph of Obama taken in April of 2006. The photograph was taken by Mannie Garcia-- who at the time worked for the Associated Press as a freelancer. The discovery was made by Tom Gralish-- a Philadelphia Inquirer photographer who was inspired by Michael Cramer’s search for truth. In my opinion, the same scenario that I mentioned concerning Jim Young applies.

Photograph of Obama taken by Mannie Garcia for the Associated Press.

From what I've read it appears that Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.

A comparison of the Obama photograph taken by Jim Young and the Obama photograph taken by Mannie Garcia concerning Shepard Fairey’s ’Hope’.

From what I’ve read it seems Mannie Garcia simply wants to bring issues of appropriation and copyright directly to Shepard Fairey’s attention. However, it should be noted that Mannie Garcia works at the White House for Bloomberg-- so I doubt he would want to press too far into the issue.

Links to the Mannie Garcia / Shepard Fairey story:
http://swampland.blogs.time.com/2009/01/21/found-the-photograph-that-inspired-obama-nation/?xid=rss-topstories

http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/found_again_the_poster_source.html
The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.

Links of Interest:

http://blog.wired.com/underwire/2008/09/poster-boy-shep.html

http://blogs.reuters.com/photo/2009/01/15/iconic-obama-poster-based-on-reuters-photo/

www.art-for-a-change.com/Obey/index.htm

www.nypost.com/seven/04242008/news/nationalnews/paint_misbehavin_in_team_os_street_art_107876.htm?page=0

www.laweekly.com/2008-09-11/columns/yosi-sergant-and-the-art-of-change-the-publicist-behind-shepard-fairey-39-s-obama-hope-posters/

www.myartspace.com/blog/2009/01/obama-art-phenomenon-selling-hope.html

www.myartspace.com/blog/2008/11/intentions-of-shepard-fairey-should-be.html

www.myartspace.com/blog/2008/09/obamas-obedient-artist-is-shepard.html

www.myartspace.com/blog/2009/01/brad-holland-responds-to-public.html

www.myartspace.com/blog/2009/01/art-space-talk-martin-trailer.html

Take care, Stay true,

Brian Sherwin

Senior Editor

Myartspace Blog

www.myartspace.com/blog

myartspace.com

www.myartspace.com

New York Art Exchange (NYAXE)

www.nyaxe.com

Stealing Images Online… and other Copyright Issues

Stealing Images Online… and other Copyright Issues

The internet has created opportunities that visual artists would not have had in the past. However, with internet driven opportunity comes the need for greater responsibility-- artists need to be prepared to protect their art if a company or individual infringes upon them. It goes without saying that visual artists who utilize the internet for gaining exposure are faced with this burden. That said, it is a necessary burden. The rewards of online exposure outweigh the risk-- and with proper documentation the risk, under current copyright law, could very well become a reward if your art is infringed upon.

Dion at Art News Blog recently posted a blog entry, titled ‘Stealing Images Online‘ , that reminded me of some of the opinions that Gary Schuster, an attorney with Jacobowitz & Gubits, LLP (Walden , New York), stressed on the Myartspace Blog with the Art Space Law series. Mr. Schuster covered various topics, such as the legal aspects of image theft, copyright infringement, appropriation art, derivative works, copyright law, fair use, and image manipulation / alteration. Thus, I feel that it is important to highlight these topics once again:

What you need to know about Copyright laws . In regards to copyright registration and cases of fighting copyright infringement Schuster stated, “You may not bring a copyright infringement lawsuit unless the work has been registered. Furthermore, if the infringement occurs before registration, you are limited to receiving your "actual damages". If the infringement occurs after registration you are eligible for "statutory damages", which can be both higher and easier to obtain. You will also be eligible to recover your reasonable attorneys fees and costs.

Actually, the mere fact that you are eligible for statutory damages, attorneys fees and costs puts you in a stronger position in pre-litigation settlement negotiations. If all you can get is actual damages your settlement leverage is much reduced. With a law firm retainer of $5,000 or $10,000 or more for litigation, you definitely want to try to settle. You get all this for just $45.”

Ripped and Altered? What You Need to Know . In this entry Schuster discussed copyright infringement-- among other topics. Concerning copyright infringement Schuster stated, “Contrary to urban legend, there is no particular percentage which needs to be reached in order to permit a finding of infringement. Generally the tests are (i) was there access to the first work, (ii) was there copying, and (iii) was the copying substantial…”

Schuster went on to say, “Generally it means that the infringer copied a substantial portion of the original work. It doesn’t have to be literal, word-for-word copying. The "total concept and feel" of a work can also be protected by copyright. This is one of those areas where it comes down to "I know it when I see it." One thing that can be said with certainty is that substantial similarity is a question of fact rather than a question of law. The jury will determine whether the two works are substantially similar.”

Concerning derivative works Schuster stated, “A derivative work is, quite simply, one work that is derived from another. So, for example, a film is derived from a novel. A musical is derived from a film. One of the exclusive rights that a copyright owner has is the exclusive right to prepare derivative works, and authorize others to. If you own the copyright in a painting you have the right to prevent others from creating other works, derived from your painting, without your consent.”

Imagine Fair Use . Schuster explored the issues surrounding fair us. He stated, “Fair use permits the copying and distribution of copyrighted material, without the owner’s consent, for purposes of criticism, commentary, news reporting, teaching, scholarship or research. Fair use is where copyright law gives way to the First Amendment guarantees of freedom of speech and expression.”

Schuster provided examples of the controversy that can arise over claims of fair use. In the article Schuster described three specific tests used to determine whether a claim of fair use is acceptable or not. He also stated that issues of this nature become one of Copyright vs. The First Amendment if they end up in court.

The advice that Mr. Schuster provided makes for a good read if you are interested in art law. However, his advice does come with a disclaimer-- The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.

As for me I can only say that at heart copyright law is an issue of respect .

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com

For the Love of God: Damien Hirst Threatens Young Artist with Legal Action

A collage by Cartrain involving Damien Hirst's 'For the Love of God'

There has been some buzz about a situation involving a young British graffiti artist and Damien Hirst. Apparently the young artist, known as Cartrain, took a lesson from Banksy’s playbook-- he displayed one of his collages in the National Portrait Gallery under the nose of security and staff. So where does Damien Hirst come into play you ask? The collages by Cartrain, which the artist has sold as prints, involve a parody of Hirst’s ‘For the Love of God’. It seems that Hirst was not thrilled to discover that a young graffiti artist had profited from prints involving his copyright protected works.

The Design and Artists Copyright Society, of which Damien Hirst is a member, contacted Cartrain after receiving direct instructions from Hirst. The society informed the young artist that he had broken the law by infringing upon Hirst’s copyright. Hirst’s demands were clear-- he demanded the original works and the halt of sales with the threat of legal action. Hirst also demanded the profit that Cartrain had made from selling his collages and prints. Four works were confiscated by DACS from Cartrain’s gallery on November 12th. Reports state that Cartrain only earned about £200 from sales of the work.

People are defending the work of Cartrain by stating that appropriation is not theft. However, appropriation can be considered theft if the work is protected by copyright. It really boils down to a fine line decided by judge or jury. True, art schools and law have very different opinions about the implications of appropriation. In the case of Hirst’s work-- which is known worldwide-- one could make a case for parody within the protections of appropriation.

Damien Hirst is not the only internationally renowned artist waving the legal stick around these days. Shepard Fairey, the visual spearhead behind Barack Obama’s campaign, recently stated that he will take legal action against “bootleggers” who have “hijacked” his “style”. That said, I find it ironic that Damien Hirst would be upset over someone infringing upon his copyright considering that he has infringed upon the copyright of others. Damien Hirst and Shepard Fairey have two things in common-- they have both settled out of court due to infringing on the copyright of others and they have both threatened legal action against artists who have violated their protected works. The saying, “you reap what you sow”, comes to mind. Did I mention that Cartrain is 16 years old? ‘For the Love of God’-- Indeed.

Links of Interest:

‘Appropriation’ isn’t theft, Mr. Hirst

Damien Hirst 'threatened to sue teenager over alleged copyright theft'

How Damien disappointed us

With Barack Obama Posters Comes Fame

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com

Art Space News: Will Mass MoCA Display Installation Without Consent?

A part of an installation is hoisted into a warehouse for a Christoph Büchel exhibit-- but is it really a show of his work?

A Federal Court judge has ruled that the Massachusetts Museum of Contemporary Art can display materials assembled for Christoph Büchel's unfinished 'Training Ground for Democracy' installation. U.S. District Court Judge Michael A. Ponsor issued his ruling following a hearing on motions filed by both Christoph Büchel and Mass MoCA. In granting Mass MoCA's motion to allow the museum to display the installation, Ponsor also denied Büchel's motion to prevent the piece from being displayed in the museum's football-field size Gallery 5 (one of the largest gallery spaces in the United States). Ponsor's decision was due to the amount of space needed for 'Training Ground for Democracy' to be adequately displayed.

Büchel's design for 'Training Ground for Democracy' was indeed large-- both in size and cost. The installation, which cost the museum over $160,000 to assemble, is based on a mock village used for U.S. military training. Staff members were to obtain the items Büchel needed for his design. His list of required items included a leaflet-bomb carousel, a two-story Cape Cod cottage, an old bar from a tavern, a vintage movie theater and various "banged-up" vehicles. The artist had requested nine full-size shipping containers and had planned to design a re-creation of Saddam Hussein's hiding place-- commonly referred to as the 'spider hole'. However, Büchel's plans were scrapped due to disputes with the museum in January.

By the end of January, well past the scheduled Dec. 16 opening of the exhibit, Büchel departed from the project-- which resulted in several negative exchanges between the artist and museum officials. Büchel claimed that the incident has damaged his reputation and refused to have his name associated with the unfinished project because museum workers had continued to work on the installation without him -- the museum argued that it has a responsibility to deliver a show to the public and that its reputation is on the line as well. Both parties ended up in court over the issue and critics have stated that the ruling, which favored the museum, is a blow to artists’ rights in general.

During the case Büchel accused the museum of un-professionalism and went on to state that the museum had interfered with his work and had wasted his time. The museum claims that Büchel agreed to a $160,000 budget and that the project had cost more than twice that by the time Büchel had left the project. However, Büchel claims that an amount was never agreed upon and that the installation should not carry his name or be displayed in public since he did not oversee its completion. The court ruled that Büchel's work was not protected under the (VARA) law and that the museum can display the installation as long as they mention that it is not complete.

Many artists, art critics, and art advocates have proclaimed that the museums actions are not in the best interest for art as a whole (which conflicts with the museums mission statement). The debate has opened the door for discussions on ethics in the art-world since Büchel is being forced to exhibit work that he does not consider finished or acceptable for public viewing. There is strong concern that this case will allow future works to be shown without consent and that the ruling has created a loop-hole in laws that have been created to protect artists and their work.

In my opinion the financial loss the museum endured was a poor business expense on their part. I don't feel that Christoph Büchel should be punished since there obviously was not a clear contract involved with the work situation. This case has made a villain out of the artist, but I would think that the museum is in the wrong as well since they should have made things more clear. It is crazy to throw that kind of money around without a contract. It appears that the project was flawed from the start.

Büchel conceived 'Training Ground for Democracy' and oversaw the installations construction until his departure in January. The key word is 'departure'-- Büchel left the project! So how can this piece be considered his work? Especially if he does not want his name associated with it? Is it his fault that the museum threw money at him left and right and that they tried to force him into deadlines? The fact that the museum lost thousands over this project does not matter to me... the fact that an artist has been forced to put his name on something that he does not see as finished does! Both sides should have cut their losses and moved on.

I'm not the only one annoyed by this ruling. Many people feel that the museum has broken trust with the artist, the viewing public, and art in general. There are real fears that this case could lead to more troubles for artists and exhibit spaces in the future. What do you think? Was the ruling fair? Should Büchel accept it and move on? Would you be OK with your art being exhibited unfinished? Is this a blow to artists’ rights in general? Do you think Mass MoCA should go on with the show? Discuss.

Take care, Stay true,

Brian Sherwin