Shepard Fairey Sues The Associated Press

Shepard Fairey’s Barack Obama campaign poster is still in the news even though people now refer to the subject as President Obama. Fairey has filed a lawsuit against The Associated Press, requesting the judge to state that he is “protected from copyright infringement claims.”

Shepard Fairey Barack Obama Poster

The Barack Obama photograph used in the Fairey poster was taken by freelance photographer, Mannie Garcia for The Associated Press in 2006. The A.P. recently demanded a portion of any money made from the image and now the artist has decided to the let a federal judge figure out if the matter is a copyright infringement.

A lawyer for Fairey, Anthony T. Falzone said the Garcia photograph was transformed into a “stunning, abstracted and idealized visual image that created powerful new meaning and conveys a radically different message.”

NY Times has more on the copyright lawsuit. Brian over at MyArtSpace blog has a more in depth post on the Fairey case too.

Shepard Fairey is also currently showing at the Institute of Contemporary Art in Boston.

About Dion

Australian artist and observer of things.. all kinds of things. I like a wide variety of art, from the weird and wonderful to the bold and beautiful.. and everything in between.

Comments

  1. I like his images but I don’t think his claim passes muster.I think he will lose.

  2. The photographer may be his savior though as he’s happy that it was his image used for the photo. I think I read that the photographer retained the copyright for that particular image.

  3. The colour of the tie is different, the artist has added a lapel button or badge and the word HOPE. Look carefully and the angle of the head is at least 2 degrees different. Copyright should surely rest with Obama. It’s his mug thats created both images.

    I think copyright should not apply to images that can easily be replicated or are in the public domain. A photograph (or painting)of a building is in some way copying the original work of the architect. If I paint a red square and someone else paints a red square can I sue or does the shade have to be an exact match? How about if one is a couple of centimeters bigger?

    Given the limited number of angles you can take a photo from (360 is about the maximum or if you want to be pedantic it might be 360 x 360 = 129600)and the number of photos taken of Obama by now I sholud think the image must have been replicated many hundreds of times by now.

    I think the photographer/ press agency will loose but in reality all parties will win because it’s all about publicity and here we are …

    Finally I must warn you not to make any more photos of me. My mum has claimed me as one of her artistic creations,(well a work in progress actually), and you don’t want to mess with her!

  4. Some buildings are under copyright Earl, one that were built after Dec 1990. Creators of images retain copyright no matter where it is located or how easily downloaded or snipped from a magazine.
    This artist just downloaded the pic and manipulated on photo shop type program. Doesn’t really fit the definition of derivative.
    http://painting.about.com/cs/artistscopyright/f/copyrightfaq5.htm

  5. It’s a matter of ‘Fair Use’ and in this case it’s called transformation and precedent has already been extablished in a US court cases. Blanch v. Koons 2006
    - Koons won. Why: Because the use of Blanch’s photograph in the painting “Niagara” was intended to be-and appears to be transformative. Further, the creation and exhibition of the painting cannot fairly be described as commercial exploitation and the commerciality is not “dispositive.”

  6. Here is the problem with your comparison in regards to Blanch v. Koons 2006. Koons used the image and incorporated into a larger image that transformed the original work into a completely new context and new work. Fairey hasn’t done that anon. He just downloaded the image, manipulated said image and claimed it as his own. Had he downloaded the image and incorporated it into a larger picture like Koons then he might have had a case.

  7. I’m a little on the fence about this, I have to say. I will say, however, that Shepard’s show at the ICA is great. If you have an opportunity, go see it. His art is layered in a way that doesn’t come across too well in a reproduction.

  8. I like his work too and I like what he did to the photograph, but I am not sitting on the fence with this. I may change my mind if a I see a legal and cogent argument supporting his right to steal other images and slightly manipulate them on the computer photo shop, but as it is now I haven’t heard it.

  9. @JafaBrit
    The question is how significant to the original was the part that was used, and how much did it transform that part to create your new work.

    In Blanch vs. Koons the court said that a “transformative” work adds something new to the original work, it changes its message or meaning, takes on a different character or furthers a different purpose.

    This would then apply to the Fairey’s Obama piece. Two obvious points to consider about this Obama piece is: purpose and meaning, both of which have been changed. I think that a court would also see it this way. So, yes, it can be compared to Blanch vs. Koons

  10. Can I be compared to Blanch vs. Koons? Can I tell my mum she doesn’t have a copyright on me as I think I am a “transformative” work. I’ve certainly added something new to the original work, changed my message and meaning, taken on a different character and I now furthers a different purpose. I guess the courts will find in my favour but who has the nerve to tell my mum???

  11. I think the artwork Shepard created has enough change within it, in comparison to the photograph which it was inspired by, in order to be perfectly legal. That is pretty much what his lawyer is saying and I believe the law only requires a 20% change right ?

    In the United States everyone wants to take each other to go see the judge. Sounds fun !

  12. I guess where it doesn’t work for me anon is that while koons took an imaget an incorporated it into part of a picture, fairey didn’t. He took the image as it is and it remains the focal point. I look forward to a legal clarification in this case.

  13. I love the image, but honestly, I don’t care.

  14. This is why I avoid using anyone else’s images. Appropriation is very Post Modern and tries to avoid copyright by pretending to either criticise or magnify another’s image under the sanctity of art. It doesn’t fit well with me. Referencing on the other hand seems more sophisticated and advances the debate on a deeper and more creative level.
    Although the Obama images are strong, they had a very borrowed feel about them – especially the sunburst ones with their subversive New Age messages.

    This appropriation thing is one of main reasons I have problems with some Pop Art. Warhol to me has art that lasts 15 minutes, due to it’s implied intellectual content. Lichtenstein is good but runs out of poop as well. Wessellman, Johns, Oldenburg and Hockney and others are far more interesting.

  15. I’m surprised the thread went this far before Warhol was mentioned.

  16. David Howard mentioned borrowed feel. Everything else I’ve seen of Obama, be it illustration, portraiture or caricature does not have that blatant borrowed feel. I see the other images I’ve mentioned as unique. If that piece isn’t judged a copyright violation then I should put down my brushes immediately and borrow images online, digitally manipulate them, a tilt here and color change there, and save myself one heck of a lot of time.

  17. I like the poster, but the “O” should be changed to a “Y”.

    On the other hand, “HOPE” could be changed to “HOPELESS” in a few years, provided the copyright issue is resolved for the artist.

  18. Woa. The AP demanded a portion of the money made from Fairey’s art? How effin’ ballsily self-righteous can you be, Associated Press?

    That judge needs to UNDENIABLY rule that it is in fact copyright infringement.

  19. Donald Frazell says:

    I am always amazed how big this topic is, even Brian is almost obsessed with it. Fairley is not a creative artist, he is a graphic designer. His stuff is OK, does the job, and should be paid. Its simply absurd some want to put his stuff in galleries,of course he will go for it, he is a business after all.

    I really dont care, he is irrelevant to me. His using other peoples images without credit is bad, those who cover other peoples songs pay through ASCAP, he should also. Eevn if teh cover far surpasses the original. But this constant attention to him is way out of proportion. Just show how much the art world is about career and profit, wish there was half as much about making art better.

    ACDE

  20. In regards to Dave’s post just above, what is wrong with career and profit? “Better art” still benefits from a healthy dose of market motive – just don’t let it become like the music industry or Hollywood. I have to be both idealistic and practical to survive as an artist, as I’m sure most do.

  21. Donald Frazell says:

    Some of us are neither, just Truthful, which is all any real artist looks for. Practical because ia have a paying job in applied arts, Truthful when it counts doing my own. As any artist worth the title is.

    If commercial art that is fine, or Fine art decorating for the rich, just be honest and call it for what it is. This guy is not a creative artist, he is a graphic designer. Adn not ad at it, jsut a glorified one, with a bit of ego, but what the hell. They gonna give it to him, it is business. Not Art.

    art collegia delenda est

  22. He took a news photograph and turned it into a work of art. No matter what you think of his process, you don’t get any more transformative than that.

  23. Why do people have to be so greedy? The photographer should be proud that his work inspired another artist. We should let this go.

  24. “Why do people have to be so greedy? The photographer should be proud that his work inspired another artist”

    Then that principle should also apply Fairey when he threatened to sue another artist for using HIS image and had transformed it. Can’t have it both ways.

  25. “and precedent has already been extablished in a US court cases. Blanch v. Koons 2006″

    Koons, Koons, Koons. People forget to mention that Koons has lost two cases in the past involving the same issue. So has the Warhol foundation. Just because Koons won one does not mean it is set in stone.

    My bet is that Fairey will lose and Richard Prince will lose later this year. It will be a major blow to people who can’t come up with their own concepts. Maybe they should take their own photographs instead of finding them at random? Fairey is worse because he has stole from paintings and posters.

    Both Warhol and Koons used recognizable images when they appropriated. Fairey latches on to little know photographs, paintings, and posters. He has a long history of taking from minority artists.

    There is no 20% rule. You can change 99% of a copyrighted image and still be sued and lose a copyright fringement lawsuit.

  26. So if I take an image of your work and defecate on it would you say that is transformative because it changed the meaning? I should do that with a print of the Fairey’s Obama poster.

    Transformative does not have a solid definition yet in court and the way some of you are viewing it would mean that any copyrighted material can be used as long as there is some change to it. How do you define change? That would destroy copyright. Fair use is supposed to be limited for a reason.

  27. Below an extract copied from the Telegraph UK: “Can Banksy ride the recession? Bonhams clearly thinks so and has included 21 Banksy prints and paintings valued at between £300,000 and £490,000 in its next urban art sale, which opens for viewing on Sunday. The big catch, says Bonhams, is a complete set of six screenprints of Kate Moss in which the supermodel has been given the Andy Warhol/Marilyn Monroe treatment, valued at £100,000 to £150,000. “

    So where does Banksy stand on the Warhol/Marilyn Monroe treatment. My considered opinion is that it’s all crap and and it’s all been done before and I very much hope somebody sues somebody. Its a pity the law cann’t be used to stop crap art from being produced and sold for such sums of money when so many good artists are skint.

  28. What do Damien Hirst, Shepard Fairey, Cartrain, and Baxter Orr have in common? A lot.

    http://www.myartspace.com/blog/2009/02/birds-of-feather-flock-together-damien.html

  29. blah. Does not work in url space!

  30. If the photograph itself is iconic or just very well known it is open to fair use. The problem is when you use photographs that are not well known.

  31. ….”and and it’s all been done before…”

    It’s all been none before. We are constantly borrowing (to various degrees) from others to make art.

  32. And now we have to borrow from each others comments as Art Blog hasn’t given us a new topic for days. I hope he hasn’t burnt his didgery doo in all these bush fires down under – what a world – we law abiding Brits get too much rain while the excons get all the sun… so much for intelligent design. Come on art blog … get off the bloody beach and do some work.

  33. I’m alive Earl.. and found an interesting post about shit today. And we’re getting plenty of rain too.. half the country is burning and half is flooding. Not sure if I’m located in the burning part or flooding part yet as it could go either way.

  34. When I heard about Fairey and the AP, I got nervous about an image I was using for a (very large temporary installation in DC this past weekend. Tried harder to find the author of the photo and discovered it was Annie Leibovitz. Contacted the firm that represents her, simply explained my project, and asked permission to use the image. They said yes. This entire process took 1 hour internet research, two phone calls, one email, and 48 hours of waiting. Sometimes attaining the rights to use a copyrighted image is simpler than you might imagine!

  35. This is the kind of stuff that in art that gives me a headache!

    Ideally people just want to get on with making their work but at some point someone will take an idea you’ve had and use it and it starts to get very complicated.

    In this case you can see the artist/ graphic designer clearly used the photograph as a base for their image- what that means is up to the courts.

    Other times it’s not so easy- two people can come up with the same idea at the same time, usually it’s the most well known artist that it will get attributed to.

  36. Ahem. Could I just take exception to the post mentioning that this guy isn’t creative – he’s a graphic designer? I returned to art school and took graphic design after a divorce. I knew I had to feed myself! And creativity is required when placing images and type together. The same challenges arise whether one is deciding where to place a flower in relation to all the other elements in a painting, or where to place a block of type in relation to graphic elements. I’m returning to painting and love watercolor, but I also derive satisfaction from an effective melding of typeface, color, and image. And it has been my experience that a graphic designer is usually also an artist, but not every artist is capable of being a graphic artist, as it requires some very specific knowledge. Not to change the subject too much, it just jars me to see such condescension. I too, will be curious to see the result of this tussle.

  37. http://www.ap.org/pages/about/pressreleases/pr_020409a.html

    I think it’s interesting that AP wanted the money for charity…

    AP Statement on Shepard Fairey Lawsuit

    The Associated Press is disappointed by the surprise filing by Shepard Fairey and his company, and by Mr. Fairey’s failure to recognize the rights of photographers in their works. AP was in the middle of settlement discussions with Mr. Fairey’s attorney last week in order to resolve this amicably, and made it clear that a settlement would benefit the AP Emergency Relief Fund, a charitable fund that supports AP journalists around the world who suffer personal loss from natural disasters and conflicts.

    At Mr. Fairey’s attorney’s request, we agreed AP would not pursue legal action while in these discussions. Despite an agreement to continue these discussions on Friday, Mr. Fairey’s attorney avoided contact, nor did he respond to an invitation to make contact over the weekend. Instead, he chose to file on Monday morning, without any notice to AP.

    AP believes it is crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others. The photograph used in the poster is an AP photo, and its use required permission from AP.

    Paul Colford
    Director of Media Relations

  38. I understand the infraction, but I don’t think it calls for grounds of litigation.

  39. Anonymous says:

    You guys are missing it, Fairey is a artist, the graphic design he uses is just part of the work. His art is the dissemination of these messages and images as well as the images themselves. He has managed to significantly capture and influence public consciousness just like many works of art do. So not only is the medium the message, it is the art. If a fine artist used the world, or a neighborhood or any art space for that matter as his canvas, and plastered it with simple symbols to communicate a message, you would have no qualms with it. You wouldn’t be calling him a plagiarist or fluff. I think you are all confused because he happens to be a pretty good illustrator and designer. Look at the big picture. Also, Fairey didn’t retain any profits from the sales of these posters, all funds were reinvested in legal advertising campaigns in markets where the candidate had a close race. All this was done on the artist’s own accord, so when you think about it, it was an art project that turned into a pro-bono advertising campaign. This poster did not make him rich nor is he as wealthy as most people believe. He lives a very modest life and is someone you would never characterize as extravagant. He’s uncomfortable in fancy restaurants and loves doing pro-bono work for many different charities. He’s an honest and fair person, who just happens to have a lot to say and a method that is unconventional to the mainstream art world.

  40. I think we have to look at the history of art and music and where that is at. Has everything not just become a mush and re-appropriation of something else? Music does it all the time. I think Shepard Fairey’s work is interesting in it’s social commentary, although do agree it lacks a certain depth. He is using public consciousness to create images that resonate with everyone in the public sphere, not just those in the high art world. Traditionally and often still in many concept based art schools this is a sign of bad art. Art that is too accessible becomes bad art. Why is this? Are we so elitist that we cannot share our medium with everyone? I do however find an issue not in his Obama poster, (because I do feel it was a more or less publicly accessible image) but in his other works. Their unassuming direct appropriation of former artist artworks without recognition is concerning. I myself am a painter and use photographs to work from and feel that style of the re-appropriation is what makes it an original. Is what Fairey is doing stylized enough? Where should we draw the line? Is this graphic design? Kitsch art? Or so called high art? In the end is art as we know it not dying out anyway?

  41. I have copyright on the word ‘art’.
    You all owe me big time.

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