Shepard Fairy Sued by AP over HOPE
In news this week it’s interesting to see Shepard Fairey is getting sued by Associated Press over his use of one of their images in his recent work HOPE; an iconic, although unofficial, Obama campaign poster in recent U.S. elections. The original photograph was taken by Mannie Garcia at the National Press Club in New York, April, 2006. Which poses an interesting set of questions for appropriation artists in a world of technology and with reproduction costs close to zero. Actually, for all artists.
Is Appropriation for Art Fair Use?
The first question is whether or not appropriation in art, in the context of the commercial business of art, is really fair use? If I take a photograph, for example, and you take a photograph of it then sell it for hundreds of thousands of dollars is that really fair use? If you fail to attribute? An article from The New York Times in December 2007 titled If the Copy is an Artwork, Then What’s the Original? asks that question about the work of Richard Prince, an artist who photographs advertising photographs and blows them up to a huge scale. Imagine the feeling of photographer Jim Krantz entering the Guggenheim on seeing his own work on sale and unattributed. Krantz asks a hypothetical question – if he purchased a copy of Moby Dick and italicised it would it then be his book?
Short answer: fair use may be discovered through expensive court proceedings. It’s not cut and dry so be careful where you tread.
Do Artists Understand Copyright / Creative Commons?
The second question is whether artists actually do understand current copyright law, the concept of various Creative Commons licensing, and the danger of grabbing any old photograph from Google Images or Flickr to be used in artwork. I’m all for a mash-up society but again in the context of the commerical business of art the average artist can’t lodge a court defense like Shepard Fairy. I ask this question because, as the partner of an artist, there are a growing number of appropriation artists emerging through the academic art schools. Because nowdays, just like Shepard Fairy, finding a good image to use is as simple as grabbing Google Images. Legally artists need to understand their vulnerability creating a career based on the unattributed work of third party photographers and fellow artists. I’d take a small bet that barely a single artist in my sphere of contact even understands that copyright has changed in recent years, let alone the subtleties of Creative Commons licensing models.
Short answer: Everything on the Web isn’t free as in beer whether it’s on Google Images, Facebook, Flickr or my blog. The moment you choose to take someoene else’s work and use it as your own without attribution you’re putting your art as a business model at serious risk.
A Career out of Appropriation Art
Shepard Fairy has made a career out of appropriation art – as a well researched critique Obey Plagiarist Shepard Fairey by artist Mark Vallen in December 2007 shows all too well. If I were to create images today with the word Obey I’m reasonably sure Sheperd Fairey would send me a cease and desist as it’s become his unofficial trademark. Something Austin designer Baxter Orr discovered when he reworked Sheperd Fairey’s Obey to depict Andre the Giant wearing a SARS mask. In a world of the commercial world of art ownership comes with the business model. One person’s mash-up becomes another’s plagiarism. What wins in the world of legal battles – money. Most artists lack money and should therefore avoid Google Images like the plague.
Art Schools Need to Focus on Copyright
Art and design schools need to spend more time focusing on copyright issues and providing students – future commercial artists and designers – with the skillset to operate their business model as commercial artists and designers successfully. It’s scarey the amount of Google Images being passed through the academic system with high distinctions even at the post graduate level. Not to mention the amount of commercial work being sold in galleries through the same ignorance.
Graduates should, for example, understand simple concepts like the illegality of putting a registered symbol on an unregistered design or logo simply because it looks cooler than a trademark symbol to readers or clients. Businesses pay a lot to register a trademark. And this should be common business knowledge for all graduates.
There is also the do unto others factor in all of this – Baxter Orr is really no different than Shepard Fairey in most people’s eyes, for sure. But what if I took a photo of somebody’s artwork and sold that photo online? Especially if the artist gained their image from Google Images? Do unto others…
Conclusion
My real point is that even if the letter of the law allows artists the use of copyrighted work from other artists and designers under fair use, and even if it’s morally fine by them to not attribute authors of work they appropriate – it is a matter for legal interpretation. Any artist that I know would be very silly to produce a print that risks more money than they’ll make in their entire art career for an article that sells under AUD$1,000. That’s just shonky business.
And, seriously, how hard is it to go and take your own images? Or learn to draw? Instead we have mash-up artists that dislike being mashed-up and who back their own commercial ownership with the monetary clout to fight it out in court. Art, after all, has become a business. Art has become very much about the money for those lucky enough to be making any money. Most artists, in fact, are very poor. Too poor to fight legal battles and employ lawyers or even make it into newspapers for a bit of public support.
To general artists and designers out there, please, figure out what Creative Commons really means. The number of times a business manager has told me to grab a Flickr picture to save $10 is just scarey. Free as in free to use under certain conditions, not free as in beer. Far too many people seem to believe anything available on the Web is free and they have a God given right to take it and make money from it.
A handy weekly podcast well worth your while is Jonathon Bailey’s Plagiarism Today. Give it a try.
February 7th, 2009 at 4:21 am
This guy Fairey has made a career out of lifting images that don’t belong to him then passing them off as his own. As an artist myself this is the lowest thing you can do. He doesn’t deserve any support as an artist. You people that believe he doesn’t do this are gravely misinformed and need to do your homework before you embrace your poster boy. Now I see the Obama picture was lifted as well! Great Artist indeed. Great hack non-artist is more like it.
February 7th, 2009 at 8:47 am
Chase – I believe he doesn’t rip people off? Mmm I’m wondering if you only scanned the article, or read it. Of course he’s ripping people off.
And my real point for the art business and art schools is to EDUCATE artists and designers about their legal obligations, which isn’t happening. They just hear “fair use”. But fair use is actually wide open to interpretation, especially if you’re an artist as a business making money, I’d expect.
Also, I pointed out that Fairey sent a cease and desist to Orr for almost the same thing. Why? Because when it becomes valuable they start fighting for it themselves. Look at Disney over the rights to Mickey Mouse.
But I never did say in the article I believe Shepard Fairy isn’t ripping people off, Chase. And if it’s in there I’d expect you read a line out of context entirely.
Point one: he is using people’s workwithout attribution. In the Krantz example, I’m quite sure Krantz wouldn’t mind his rodeo photo hanging in the Guggenheim if it had his name underneath (original photo by Jim Krantz) even if it was a Richard Prince exhibition.
Point two: legally Fairey believes he’s covered by fair use – which may or may not be the case, it’s a legal issue to be determined.
Point three: Everything on the web ISN’T free as in beer.
I’m not really sure how you missed my point. But thanks for commenting. I think one of the first steps is for artists to lobby art and design schools asking why they don’t include this stuff in their contemporary course structure.
I appreciate your passion. I’m also an art photographer and designer, and my wife is a fine arts printmaker, painter and photographer.
February 7th, 2009 at 8:59 am
I also think artists need to discover the difference between “copyright” work and “creative commons” work.
Further, that creative commons doesn’t just mean FREE as in beer. It is free as in free to use under certain conditions – entirely set by the author / owner of the work. For example, this site and images on my blog are free to use and remix under the condition I am attributed and that it is only for non-commercial use. I believe Shepard Fairey needs to understand that difference, as do all artists.
Unfortunately we have a culture of believing that everything is FREE and should be FREE. Which is a crock. But until artists and designers are actually educated on these issues they won’t really respect the work or rights of others.
Google Images and Flickr aren’t FREE repositories of images for the world to grab and use… who here would like their wife used in a condom ad? Or daughter used as a beach photo on a porn site? Or ourselves used out of context. All images that could be sourced and misrepresented from Google Images or Flickr.
But as long as art schools say “you’re covered by fair use” with no contextual explanation then the Shepard Fairey’s will proliferate.
I’d only really ask he respects other people’s copyright, and if he does use work he should attribute the author / owner / original creator appropriately.
Which I hope does not get interpreted by anyone as that I condone theft.
February 7th, 2009 at 11:06 am
Just to play the other side of the coin.
If Obama is the most photographed person on the planet right now and out of the 10′s of 1000′s of photo’s a few hundred happen to catch him looking to the left wearing a suit, is that really copyrightable?
I mean, this photographer wants credit for an image of the President.
His ‘original’ image was not used. (set and setting). Where’s the flag?
The AP bites off more than it can chew often. Here is just another example.
February 7th, 2009 at 1:45 pm
Interesting point Brin. But I believe their isn’t any contention as to whether this was the actual photograph he used, he said it was and that he’d acquired it via Google Images.
I do find it very hard to have sympathy for someone who is very ready to send out cease and desists to other appropriation artists, too.
But in the end the reason artists should refrain from this from a purely business perspective is that fair use is not as cut and dried as most seem to believe. It’s a legal definition and unless one has the resources to fight a court battle why risk it?
As it stands, AP might not actually own that photograph – a bit snowed under at present to post the link – but it turns out that Garcia wasn’t actually employed by AP on the day but freelancing or contracting so there’s a good chance he still owns the image (it is his livelihood after all). While he apparently said that he probably wouldn’t sue he did have strong reservations about some of the commercial purposes that he’d seen this image put to in the streets of Washington over the last month.
I guess a lot of this conversation comes down to a personal moral standpoint as much as a legal one. But, in all honesty, it’s become just too easy for art students in particular to scrape Google Images and they have a quick artwork that earns a High Distinction. This carries on to become careers.
So I guess we’ll just have to agree to disagree on that one about Obama’s image. There’s a lot of icky lawyer work in that conversation, for sure.
February 8th, 2009 at 4:59 pm
Jonathon Bailey’s post on Plagiarism Today outlines why he suspects AP won’t succeed in their suit against Fairey. It’s a good read and he makes some excellent points.
February 9th, 2009 at 6:58 pm
You may find this article equally revealing if you have the time to read it.
http://www.supertouchart.com/2009/02/09/think-piecefair-use-it-or-lose-it-by-marjorie-heins/#more-15711
Plenty of examples as to why fair use is valuable and important to the creative process.
February 10th, 2009 at 10:13 am
Brin, I’m out of town at the moment and just have a few minutes to grab on a borrowed laptop. But I do believe in fair use for art and other purposes, and I do believe in “ownership” for a limited time as in healthy copyright.
Professor Dan Boyle’s book, The Public Domain, puts forward a balanced history and suggestion for where copyright should be headed.
But I do disagree with “free as in beer” for images not in the public domain, or to which somebody just hunted up on Google Images. It’s a little more complex than the black and white of artists having carte blanche to use anything out there. And my point, really, if you missed it is that unless you’re able and rich enough to fight people in court then recognise that fair use is a legal ground – it’s not a god given right above the law.
Yes fair use is important to creative process and in mashing up our society – ie. singing songs on the porch. That’s where current copyright is getting out of control. But the other factor is the Web, the easily available at a fingertip 6 billion photos on Flickr. Point one is that everything on the Internet isn’t free as in beer – and that’s a reality that you have to be prepared to accept as a matter of law. The other is that when an artist of yore borrowed from an image it wasn’t anything like the current Web paradigm – find, copy, click and paste into Photoshop. It’s that ease and speed of reproduction that I also object to in art – that people are earning Master and PhD art creds from Google Images…
But we’ll have to agree to disagree I expect. Each perspective is entirely valid. However, again my advice to young artists would be to learn about copyright law and only risk breaching it if you have nothing to lose or you can afford a lengthy court case.
Which, in itself, is rather obvious.
I’ll get to read that link tomorrow when I’m back home Brin. You can pick up a free electronic copy of Boyle’s book online, by the way. Its a good read.
February 10th, 2009 at 10:29 am
But you’re right, we should be able to stand on the porch and sing happy birthday. We should be able to develop culture rather than have it stifled.
February 10th, 2009 at 11:23 am
I agree with your main point, schools should focus on copyright, not only art schools but nowadays it’s very easy for anyone to lift an image or text and use it for a variety of ends, some of then business and some of them personal but that still may carry some risk.
But overall I think that copyright law needs a thorough overhaul. The last thing we want is to find out that our culture is not really ours, but belongs to a corporation in the Bahamas.
February 10th, 2009 at 2:32 pm
Yes its become all about big business trying to keep hold of something worth money forever and ever. Mickey Mouse belonging to Disney for example. Life plus 70 years is just a little more than the incentive needed to promote creativity and invention.
February 11th, 2009 at 11:23 am
Jonathon Bailey over on Plagiarism Today linked to this story on Google News about Fairey has sued AP.
So things are getting a little dirty in the dogfight over the HOPE poster.
February 11th, 2009 at 11:43 am
By the way, a very interesting read was sent to my by Brian Sherwin this week. His artilce on myartspace.com – Fair Use: Shephard Fairey and Baxter Orr – explains a very strong argument as to why Baxter Orr’s take on Fairey’s Giant image is fair use but Fairey’s use of the Mannie Garcia photo might not be.
February 14th, 2009 at 4:27 am
Here’s a quote from Fairey’s Legal team.
“There should be no doubt about the legality of Fairey’s work,” said Anthony Falzone, executive director of the Fair Use Project and lecturer in law at Stanford Law School, who is leading Fairey’s legal team. “He used the photograph for a purpose entirely different than the original, and transformed it dramatically. The original photograph is a literal depiction of Obama, whereas Fairey’s poster creates powerful new meaning and conveys a radically different message that has no analogue in the original photograph. Nor has Fairey done any harm to the value of the original photograph. Quite the opposite; Fairey has made the photograph immeasurably more valuable.”
-That sums up my sentiments about this whole AP nonsense in a nutshell. This is like Kelloggs pulling endorsement of Phelps. It backfires in their smug, pompous corporate representatives faces.
Go Fairey!
February 14th, 2009 at 8:12 am
Ha ha, well good on him if he can get away with it Brin.
Otherwise…
Your views are as valid as anyone elses on this one and I appreciate your input. Falzone is a passionate guy and it will be interesting to see how this one turns out in court. We need a copyright system that balances everyone’s interest, not just the copyright holder. However, neither is it just the artist’s rights in there either.
So I’ll be very interested in the outcome.
February 14th, 2009 at 8:51 am
Although I might ask how fair use might be interpreted by Shephard Fairey if I used his OBEY in the same way… (Baxter Orr?)
One can’t run with the fox and hunt with the hounds, Brin.