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)
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.
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.