image courtesy of LAWeekly
With a B.F.A. in Illustration from the Rhode Island School of design, Fairey has been a part of the underground design scene, creating guerilla-type works through the skateboarding and graffiti scene since 1989. He created “Andre has a posse” or OBEY as a project at RISD and over time the image has gained momentum as a successful fashion and skateboarding franchise (you can buy OBEY brand at UrbanOutfitters on the Ave. for goodness sake). Despite misdemeanor charges and arrests for vandalism, Fairey’s actual graphic design career was never under much scrutiny until he released the “HOPE” image into the mainstream media. The Obama campaign, under suspicion of its originality and potential copyright infringement charges, never officially backed the image, but Fairey worked closely within the campaign.
Transitioning the underlining text from “PROGRESS” to “HOPE”, “CHANGE”, and later “VOTE”, Fairey created posters, buttons, and bumper stickers. The image went viral: almost single handily springing a “grassroots” style propaganda campaign that, without a doubt, benefited Obama in attracting young voters. The original print hangs in The National Portrait Gallery in Washington, D.C. and has already gone down in history with the likes of the iconic Uncle Sam. (More information about his career can be found in this lovely NYTimes post)
The Stink:
Back in 2008, the Associated Press recognized the base image, taken in 2006 by AP affiliate photographer Mannie Garcia, and claimed the image was blatant copyright infringement. AP demanded payment for its use and a percentage of the funds Fairey gained from the image. In turn, Fairey counter-sued AP in 2009, claiming he used multiple images to inspire the “Hope” poster and was under the protection of fair use. Fairey even enlisted Fair Use Project’s own Anthony T. Falzone as his lawyer in the case claiming “Mr. Fairey did nothing wrong… (Fairey) used the photograph only as a reference and transformed it into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message”.
Despite supportive media coverage and the convincing arguments of Falzone, AP sued once again later that year under the pretense that Fairey and the OBEY brand lied about which Mannie Garcia AP image was used and gaining commercial use out of the design. Due to this, Fairey was not protected under the fair use claim and AP was hell bent on getting their dues. Eventually in 2010, Fairey admitted he found the argument AP made to be correct, and instead of confessing the error, he destroyed documents, submitted false images, and committed general misconduct to hide the mistake. From this point, the Associated Press and Fairey settled some kind of agreement out of court, and as of 2011, the case faded into oblivion and left this argument unclear for the rest of us. Now that we have a guilty verdict, we can put it to rest. The only issue I have with it is this precedent set by Pop Art in the 1960s.
image courtesy of the NYTimes and Mannie Garcia, AP
Plagiarism?
In 2007, blogger Mark Vallen from Art for Change released this (extremely detailed) critique of Fairey’s work, attempting to deflate his reputation even before the “Hope” poster was even released. Within the first paragraph, Vallen states:
“What initially disturbed me about the art of Shepard Fairey is that it displays none of the line, modeling and other idiosyncrasies that reveal an artist’s unique personal style. His imagery appears as though it’s xeroxed or run through some computer graphics program; that is to say, it is machine art that any second-rate art student could produce.”
I understand his objections entirely as I’m sure he goes through quite a bit for his work, however a lot of propaganda illustrations are based upon iconic images to make social commentary and are therefore, transformative works. One can argue the effort put into the pieces, however the change in context of the original images still protects the work under fair use.
While studying design myself, this case and argument came up quite often. Art students are taught that within a school environment, they are protected under fair use. However, art history classes claim another thing entirely. Contemporary artists like Warhol and Lichtenstien blatantly defied potential copyright and capitalized upon images from photographs, famous brands, and comic books to create their works: the entirety of their fame and success built on the very case Fairey is in jail (or in all honesty, house bound) today. Vallen attempts to justify history by defending Warhol, which I think is a mistake.
“Even the art of Andy Warhol, reliant as it was upon photography and mass commercial imagery, displayed passages of gestural drawing and flamboyant brushstrokes.”
Technically speaking, silk-screening an image of Richard Nixon and smearing a can of paint over it isn’t much more than what Fairey digitally created with Obama’s image. Adding textures, backgrounds, and block color to the image was exactly what Fairey’s predecessors did, entirely unquestioned. My beef with this whole issue is the lack of clear definition of what is clearly wrong and what is accepted (and even praised!) throughout art history. Really, the thing that we should all think about is, what if Warhol and Lichtenstien had access to Photoshop and digital media in the 50s and 60s? Would they even have had careers in the first place? If Shepard Fairey hadn’t lied (or gotten caught) about the images he used to create the “HOPE” poster would this argument of copyright even be an issue in the first place? If not, every single creative institution in the country should step up to the plate and take full responsibility in defining contemporary copyright issues to their students right here and now to stop this kind of fiasco before it even starts.
Karly,
The question you raise about Warhol and Lichtenstein having access to something like Photoshop and/or digital media in the 50s and 60s is interesting. I’m guessing they still would’ve had careers, though maybe those careers wouldn’t have been as notable as they’re perceived to be today.
Mark Vallen’s assertion that “…one was always aware that Lichtenstein was taking his images from comic books; that was after all the point, to examine the blasé and artificial in modern American commercial culture” falls in line with what Warhol was (usually) doing as well. Take, for example, Warhol’s Campbell’s Soup Can: http://en.wikipedia.org/wiki/File:Warhol-Campbell_Soup-1-screenprint-1968.jpg. As with Lichtenstein’s work, a viewer could look at Warhol’s Campbell’s number and very quickly recognize what he was up to. That said, there’s no doub that Warhol’s work is/was appropriated.
The heart of the issue with Shepard Fairey’s appropriation seems to be his intent (which you’ve pointed out), or even lack thereof. Perhaps it’s that Fairey’s intent seems poorly thought out at best, or maybe it’s his attitude toward history (which Vallen calls negligent). Vallen makes some valid points, though he’s clearly out to take down Fairey.
Like you, I have an arts background, though mine’s on the writing side of things. If every creative institution in the country were to be asked to take full responsibility in defining copyright issues, I’m guessing that a) some faculty might not know where to begin, and b) both faculty and students might view elements of copyright issue and law to be constraining, or even detrimental, to the creativity for which they’ve been granted space and time.
I enjoyed your post and look forward to any other comments you might have.
Shannon
The questions you raise in regards to the definition as to what constitutes fair use of copyrighted works is one that interests me, Karly. That unspoken fifth factor as identified by Standford’s Fair Use section (http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/) on their website seems to be the main component in most fair use cases. With that factor it’s a primarily subjective decision based on “are you good or bad?” (as was seen to be a deciding factor in the Garbage Pail Kids vs Cabbage Patch Kids 1986 lawsuit). That fifth factor seems to be the heavy hitter in Fairey’s situation. His dishonest actions in regards to admitting his error seems to be the primary reason for his sentence.
Defining contemporary copyright for students is a great idea. At least make students and artists aware of the potential issues that they might run into. However, I can see it becoming an extremely difficult undertaking. What defines contemporary copyright now could quickly change tomorrow, as our technology and our abilities offered to us through technology grow and alter exponentially. I’m not suggesting action not be taken, just pointing out that every solution I consider seems to be a tangled mess of thorny issues. As Shannon pointed out, artists may feel constrained and limited if forced to adhere to strict copyright, however, at the same time, if those copyright laws were explicit and easy to follow (and were adhered to), artists wouldn’t be threatened with possible lawsuits they couldn’t afford in the first place.
In the end, I have no true insight to offer, but I found your post to be interesting and thought provoking and an issue that I wish could be easily resolved for everyone’s sake.
Oh man I wanted to take some time to respond properly to this — thank you so much for your comments!
I totally understand your points: money to provide for these services, as well as a a professor with somewhat decent experience in the field is an issue for teaching anyone anything. However, I feel that if colleges are providing an education to their students on becoming professional artists, they should be dishing out a general overview of fair use, copyright issues, and HELL, creative commons to prepare for success in the real world.
Going through this process myself, the only experience I had with *ANY* of this material (mind you, not until after this case was already happening in 2008) was consistently urged by professors to purchase an ethical guideline (http://www.amazon.com/Graphic-Artists-Handbook-Pricing-Guidelines/dp/0932102158/ref=dp_ob_image_bk) and a pat on the head. These issues are not being discussed and it is a damn shame.
There is a general need for artists to know about this topic — especially within the context of people stealing THEIR work. Personal blogs and community discussion on the topic happens all the time, but nothing is ever defined. Students are taking into practice what they learned in school (which I’m not going to lie, consisted a lot in stealing fonts, images, and content simply because these things are truly expensive and you have to make a deadline.) Personally, I don’t think it would hinder the creative process at all; some thought behind whether or not the creation is ethical or not would be a bad thing. Students get a (required) two hour class their senior year in loan repayment, but absolutely nothing about how to protect themselves outside of the school environment. They are consistently reminded that they are covered by fair use in school, but nothing is defined once they graduate. Students are paying enough money — they *should be* reassured that they will be informed in current law practices for their own protection. If they decide to pull a Fairey during their career, its on their head at that point.
I guess what I’m saying is a brief coverage “what is okay in the real world” shouldn’t be too much to ask. Maybe some schools are covering this material already, but based on what I learned in my education, I’m shocked that this information wasn’t even *briefly* provided.
I think it’s interesting that fair use in the art world is still such a gray area, especially since the fair use issue has already been court-cased to death in other creative arenas like film and music. Regarding these other artistic areas, Congress has always stepped in eventually and forced a compromise between the “thieves” and the copyright holders.
I’m curious how this sort of legislation currently affects the art world. Are there any licensing laws in effect so that artists can license images for a set fee? Or are they completely at the mercy of the copyright (or trademark) holder? In essence, could Shepard Fairey have obtained the rights to create his pieces without paying exorbitant amounts of money to Mannie Garcia and the Associated Press?
I also wonder how aware Fairey actually was of the potential legal backlash from this piece when he created it. When my boyfriend was in art school, his professors hailed the “20% rule” as the artist’s Bible. As long as the artist changed the original source material by 20%, it would supposedly be protected by fair use. The Obama picture seems at least 20% different to me. There are a lot of artists who, like my boyfriend, have been told time and again that 20% is all they need to cover their butts. It makes me wonder why there aren’t constantly cases like this in the news.