The copyright and the copycat

flattered t-shirtThey say that imitation is the greatest form of flattery.

But that adage seems to go by the wayside in most copyright disputes.  In this case, the Associated Press seems anything but flattered by Shepard Fairey‘s iconic Obama poster.

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.  picture-12His 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.

shepard fairey derivative workIronically, 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.

Gangsta t-shirtThe 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.”

obey giantFairey 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.

11 Comments
  1. I’ve had to deal with something like this myself although fair use was not involved.

    Google states on each image, “Image may be subject to copyright” Fairey had knowledge of possible copyright and didn’t investigate further or ask permission, apparently.

    However, I look for Fairey’s atty to argue the surrounding CONDITIONS in which the image was used – fair use. Which, then I believe he will lose his case.

    ha!

  2. What if it is your own photo of the indivual. You actually took it of the president Can You use it in your art work? or your multi mediaproducts? There are hundreds on this website alone. It seems fair to say it is legal since his image is everywhere…..

  3. Actually, from what I understand, he is stealing it because either 1) he has to get a signed [handwritten] photo-release form, 2) if it is used he must change the look of the picture by more than 60%, or 3) the picture must be older than [i think] 40 years. Since none of those are being followed, he will lose the case. To answer some of the questions in other people’s comments… Schools are allowed to use other people’s pictues as long as it is for teaching purposes only. Once money is being involved, it no longer will be considered “used in the class-room”. The other question… If you’re using your own photo captured on film, then yes. You have all rights to use your picture in any way. But once it hits the internet and can be taken by someone else, it is considered “free art” [I forgot the technical term for it]. Unless though there is a personal watermark, signature, or copyright symbol with name and year.

  4. The situation is not as simple as those of you on either side want it to be. The copyright law covering fair use says that modified visual content must not be detrimental to the original artist, for one thing – and there has been nothing detrimental about that image to the AP. Number two: he did not modify the visual content of the actual photographic image – he used the face as a model for his own hand work in another media – it’s not the photoshopped photo on the wall! I can show you book illustrations for decades that have used public images of actors, etc as models for painters’ work.

    Best known example of an artist using publicity photographs for his own work is Andy Warhol. Not only did he use other people’s work as the basis of his own efforts, but his method has been copied, again and again, by artists and designers all over the world.

    Um…including in this case. :)

    I do not believe AP can win this one.

  5. I agree with Sandra completely, these people are extremely confused about the copywright law which BTW is in gross need of being updated into our “current” technological standards.

  6. Pingback: Discussion on Copyright | Imagekind Blog | Buy, Sell, Create and Discuss Art

  7. Shepard Fairey should be called out on stealing from minority artists and for twisting the message of other artists. I read articles that open my eyes to how horrible he is as a man. He does not allow artist to comment visually on his art but takes, takes, takes all he can from minority artists and photographers. If he thinks that fair use is creative freedom he should accept that artists will comment on his work visually and profit from it just as he does. NPR did not ask him about any of his contradictions and ICA did not either. He is a hypocrite and steals culture for his own profit and messages. He is a rightest selling a leftist message for his own fame and fortune. Support the ASL group in exposing this fraud. Please read and see what he does from the words of this man who has been critical of this artist,

    http://www.myartspace.com/blog/2009/02/shepard-fairey-sues-associated-press.html

    And the Supertouch article bashing Mr. Vallen is bogus. They only bash Mr. Vallen becauses Vallen is a true revolutionary artist and mentor of the streets. They do it because Mr. Fairey makes them money.

    http://www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html

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  9. Its really not clear where the fair use argument will turn out when things are all said and done. After all, people can have their opinions back and forth all day long, but the four factors to test fair use are so subjective and slippery that only a judge can say what is right or wrong in the end.

    For the sake of having a sane precedent, I think that the court should rule in favor of fair use, but the big factor that may not be on Fairey’s side is the fourth “effect on market” factor which hurts so many artists.

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