It ain't stealing if it's art.
posted: February 5, 2009
This is from today's Boston Globe. There's an exhibition of Shepard Fairy's work at the ICA in Boston this month and he's been doing a lot of press. I like what he does and the spirit in which he proceeds, but I can see how it would get a panty or two twisted up in a knot. One thing that did jump out at me in one of his interviews was when he was asked about appropriating someone else's images into his own work. "When you go see a band and they play cover tunes they never introduce the song by saying,'This is a cover song by...". Well, often they do. And if it's a recording of someone else's song then the writer is receiving credit and revenue from the recording (after giving permission).
 Anyway, I think it's an interesting issue and I'm firmly on the fence. I reserve my right to enjoy the transformative work of others and I'm fully prepared to be outraged, litigious and flattered if anyone ever has the poor judgement (financial and aesthetic) to use my work as a basis for theirs.
Or not.
NEW YORK - On buttons, posters, and websites, the image was everywhere during last year's presidential campaign: a pensive Barack Obama looking upward, as if to the future, splashed in a Warholesque red, white, and blue and underlined with the caption HOPE.

Designed by Shepard Fairey, a Los-Angeles based street artist, the image has led to sales of hundreds of thousands of posters and stickers and has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.

The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia at the National Press Club in Washington.

The AP says it owns the copyright and wants credit and compensation. Fairey disagrees.

"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement.

"AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."

"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School.

"It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

Fairey, in Boston for the opening of his solo show at the Institute of Contemporary Art, could not be reached for comment. The ICA declined to comment on the case, said deputy director Paul Bessire.

Punk rocker and social activist Henry Rollins, a friend of Fairey's who contributed an essay to the ICA show catalog, dismissed AP's claim.

"Shepard's image is his interpretation of an image," he said. "That is to say, it is not a photograph of a photograph, but a drawn image that resembles a photograph. Basically, AP's got no traction here. Nice try. Art wins again."

Fair use is a legal concept that allows exceptions to copyright law, based on, among other factors, how much of the original is used, what the new work is used for, and how the original is affected by the new work.

Fairey is not the first artist accused of copyright infringement. Campbell's raised the issue when Pop Art icon Andy Warhol created his famous works inspired by a soup can; no legal action was taken. More recently, visual artist Richard Prince, who typically takes photographs used in ads and blows them up to make gallery pieces, has been sued by a French photographer for using his images without permission.

A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images. He released the image on his website shortly after he created it, in early 2008, and made thousands of posters for the street.

As it caught on, supporters began downloading the image and distributing it at campaign events, while blogs and other Internet sites picked it up. Fairey has said that he did not receive any of the money raised.

A former Obama campaign official said they were well aware of the image based on the picture taken by Garcia, a temporary hire no longer with the AP, but never licensed it or used it officially. The Obama official asked not to be identified because no one was authorized anymore to speak on behalf of the campaign.

The image's fame did not end with the election. It will be included at the ICA exhibit, opening tomorrow, and a mixed-media stenciled collage version has been added to the permanent collection of the National Portrait Gallery in Washington.

"The continued use of the poster, regardless of whether it is for galleries or other distribution, is part of the discussion AP is having with Mr. Fairey's representative," Colford said.

Associated Press writer Philip Elliott in Washington and Geoff Edgers of the Globe staff contributed to this report.

© Copyright 2009 Globe Newspaper Company.
Tim OBrien February 5, 2009
Since this place is frequented by new illustrators, I think it's a good lesson to discuss how an artist works with published images. The LEGAL way is to purchase the rights. The slippery slope is to skip that step and hope that you've "CHANGEd" the portrait in some way that would convice an imagined jury that you did not copy the original. Most illustrators have styles that steer away from following the reference too closely and most likely never consider this safeguard. I have always been a realist and do use reference photographs to aid in doing portraits of recognizable people. In all cases, the client acquires the rights. I still try to alter and in my mind improve the image. If I did not take the step to purchase rights then I might find myself in a similar place the Sheppard is. The flip side to this story is the value of copyright. The photographer does NOT own the copyright and has said that he's cool with the connection to the famous portrait. AP is not so 'Peace and Love' about the issue and is going to sue Shepard for profits and a shared credit. When that sum comes out, I think people will rethink the value of copyright ownership. For the record, I feel Shepard has altered this enough to make it completely different from the original. There are shapes and colors and textures that are in NO WAY connected to the source.
Leo Espinosa February 5, 2009
I went to the ICA for the opening, and I saw the show in a record time. Great craftmanship but little depth. Obey, hope, etc. They are overstretched concepts that turned from art to marketing. The Obama poster had a lot to do with how big Fairey is perceived today and to my opinion the use of reference should have been handled very differently. As a side note, I had a kick last night seeing the public learning about wheat paste, tagging and bombing, treating the one they called a vandal a few years ago as a pure artist. Buying his book and staring at his used painted sneakers nicely preserved in a glass box along with stickers and other objects. I'm happy for him, he pulled off a serious show with a lot of attention to detail. It just didn't hit me in the heart.
Steve B February 5, 2009
I am in agreement with Tim about how much it changed and the proof of the pudding is in all the power this thing gained in the process. HOWEVER. Think of any of your favorite pieces Tim and you too Dale. When you do an illo it is a much more controlled and organized original construction. How would you feel, honestly, about this guy taking your image and doing this to it? And then marketing it worldwide and getting credit for the invention? That's the acid test. If you are on the business end of this stick it will feel very different. Can't get around that. There's a line that gets crossed or it doesn't, and the problem is that people cannot agree on where that line is!
David Flaherty February 5, 2009
Clearly Fairy has value as an image-maker/ artist. The lack of good judgment regarding this copyright is a mark against him.
Marc February 5, 2009
I think the Fairey image is significantly changed, but Tim makes an important point that ought to be underscored: wherever you fall on this issue, the original photographer SOLD his rights to the photo to AP, and probably for peanuts compared with what they may get from any infringement settlements or ongoing licensing. If you value your work in its "reproducible" form (its copyright), then register your copyrights consistently, and retain them—don't sell them outright to a third party, unless the figure is enormous. What commercial artists do is license rights, not "sell" them. There's a business side as well as an artistic one to be considered when taking work out of your studio and into the marketplace—gallery or commissioned—and as long as we live in a capital driven world, artists need to be engaged in them both.
Robert Hunt February 5, 2009
If, as Henry Rollins says, "art wins", who is the loser?
Tim OBrien February 5, 2009
I think Shepard loses here. In a career defining moment the take away is not only about his ability to create an iconic image but that he applied amateur reasoning to using a piece of reference. Ask a NON artist about this story and they will now say, "Didn't he copy it? I saw that on Yahoo"
Tim OBrien February 6, 2009
I'm sure you were going to post the photographer's perspective but in reality it matters little in this situation. He did not own the copyright, AP does. This is common practice since many photographers work in this way. I think I read where the photographer was pretty 'peace and love' about it. That's his right, but really he could be furious and feel completely ripped off and would have no recourse. I know you know that Cathleen, I'm writing thhis for the unwashed... See you later. T
Alan Witschonke February 6, 2009
My guess is that Fairey knew about the copyright laws when he appropriated photos for his Obama, Andre the Giant, Warhol, etc. artworks. In cultivating his brand as a street artist I think he is intentionally thumbing his nose at "the establishment" by using whatever images he wants, whenever he wants, without attribution. Knowing that getting arrested will enhance his hip, outsider personality, (and that his lawyers will get him off), he is making a conscious decision to not get permission for the work he reuses. Most of us do not have the funds to pay for expensive legal defenses so we have to play by the rules. But, as Steve B implies, the rules are a good thing if they protect you and me. When our most basic assets (copyrights) are threatened, as they are with the pending Orphan Works legislation, I'm kind of glad we still have them. (Now do I register every piece I do? Well, mea culpa, I've got to do better...!)
roberthunt February 6, 2009
I think that it starts with respect. If we artists don't respect the value of each other's work-and I include photographers in the category of "artists" as much as anyone else-then how can we expect others to do so?
laura l. February 12, 2009
Fantastic article, Leo. Thanks for posting the link.