Feb 9th, 2009
And when the AP goes up against a well-known pop artist with a history of copyright infringment claims in the name of Intellectual Property, it’s like the Superbowl for the copyright enthusiast (or the Puppy Bowl, if you’re buzzcowboy).
From what we can gather, Mr. Fairey used an AP photo that he took from Google images to created his iconic Obama poster. His derivative work was plastered on Obama t-shirts and posters during Obama’s political campaign, and derivatives of that were seen on everything from leather jackets to the occasional garage door.
The AP claims that Shepard Fairey’s use of the photo as the basis of his work is copyright infringement. Mr. Fairey and his attorney argue that his use of the photo is protected under the fair use doctrine. Even though the photographer who took the original photo does not appear to have a problem with Mr. Fairey’s use, the Associated Press is the owner of the copyright in the photo. Often when we create things (like this blog post) on our employers’ clock, they own the copyright in the work.
Ironically, while Fairey is touting “fair use” one moment, another artist says he’s claiming copyright infringement the next. Baxter Orr claims to have received a Cease and Desist letter for his own Obama poster. Baxter claims he “wanted to parody the guy who parodies everything. He’s based his career off this. If he gets mad at this, he’s become just like Tide detergent or Coca-Cola.”
If indeed Orr’s claims are true (a copy of the C&D has yet to be made public), it looks like what’s good for the goose is not so great for the gander.
Although we’d love to hear the legal arguments and see whose side a judge or jury would pick, something tells us that these disputes will be resolved informally as opposed to through the courts. Nonetheless, both disputes raise great fair use issues.
The legal issues behind copyright infringement may be on the back burner for Shepard Fairey anyway. His humble beginnings as a street artist apparently haven’t gone by the wayside, as Fairey was recently arrested for tagging. He was arrested en route to his first solo show, “Supply and Demand.”
Fairey has entered a not guilty plea, and this is where we come full circle and wonder whether he might actually regret his many attempts to keep complete control of his imagery. Because without witnesses, who’s to say that the public graffitti wasn’t done by a fan of his work?
So will Fairey use the “imitation is the sincerest form of flattery” defense, submitting a mountain of C&D‘s to prove his case? We’ll see.