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Ol’
Shep
Shepard
Fairey’s been in the news a lot lately, which should suit
Shepard Fairey just fine. Fairey is the self-styled “street
artist” responsible for the ubiquitous “Obama Hope” poster,
which has become, in a few short months, one of the great
iconic images of our time. A few weeks ago, the Smithsonian
acquired the original poster for its National Portrait Gallery.
Fairey’s got a checkered reputation, to be sure, accused of
being a shameless self-promoter and serial plagiarist of potent
political images for reuse in his often dada-esque (or perhaps
empty is a more fitting word) works, which promote little
more than, well, Shepard Fairey. Check out California artist
Mark Vallen’s furious blog post about Fairey at art-for-a-change.com
for a taste of some anti-Fairey thought.
But love him or hate him, the Obama image is remarkably powerful
and absolutely deserving of its iconic stature; the reductive
red, white and blue style has spawned “Obamafy” image generators
on the internet. If you’re on Facebook, a good number of your
friends probably have Obamafied themselves. You probably Obamafied
yourself. C’mon. Admit it.
A question spinning around the internet for months was the
source of the Obama image. Fairey, who’s an appropriator and/or
plagiarist, depending on whom you ask (and these aren’t the
same things), obviously copped the image from somewhere, but
nobody could figure out from where, and Fairey either was
playing coy or didn’t know where his source photo came from.
After several false alarms (a couple of weeks ago it was claimed
that it was a 2007 Reuters photograph), the consensus seems
to be that Fairey used a photo taken for the Associated Press
by a photographer named Mannie Garcia. The photo was taken
at the National Press Club in 2006 where Obama was holding
forth with George Clooney.
So, of course, the Associated Press is going to Fairey with
its hand out, notwithstanding the fact that neither it nor
its photographer realized that the Hope poster was based on
their photograph until it was pointed out to them last week.
The Associated Press, on top of being increasingly a right-wing
toady, has a history of being stupid and piggish about its
intellectual property rights. In 2000, a couple of guys hysterically
mashed up the AP’s famous Elian Gonzales photo (the one with
the ATF guy pointing a gun at Elian and the handsome, enigmatic
fisherman who were hiding in a closet) with the audio from
one of those Budweiser “wassup” ads. After the primitive little
movie had been downloaded and forwarded hundreds of thousands
of times in a few short hours, the AP slapped the jokesters
with a cease and desist order. The guys posted the letter
on their Web site, and enraged citizens buried the AP with
angry emails, shutting down the AP’s mail server. The AP backed
off.
Last June, the AP tried shaking down bloggers and news sites
for quoting AP news stories, claiming that it would charge
these other outlets for excessive quoting. This went nowhere
fast, and the AP wound up looking foolish, sad and clueless.
And now this: going after one of the most recognized visual
artists in the world for one of the most timeless images ever,
one for which Fairey may have gotten ridiculously famous,
but didn’t make any direct money. Has the AP no shame?
Some of you might be yelling “Fair use! Fair use!” And that’s
what a lot of people are saying, too. Increasingly, courts
have been granting fair-use passes to appropriation artists
when the second use is “transformative” in presentation and
meaning. As one commentator observed, “The copyright owner
didn’t even recognize his own work in Fairey’s poster! How
much more transformative can you get?”
But some other copyright experts aren’t so sure. They point
out that there’s virtually no transformation in intent or
meaning. Licensing photographs for campaign posters is a standard
transaction. The photographer presumably took the photo for
commercial purposes, and that’s precisely what Fairey used
it for, notwithstanding the fact he made no money with it
by choice. Maybe this is over the line of fair use.
But there’s another route here. To claim fair use, first you
need an infringement, and maybe Fairey’s use doesn’t rise
to the level of infringement. To infringe, the second use
has to copy the “copyrightable elements” of the first. Photographs
generally receive fairly thin copyright protection: some protection
in the composition, color, shading, whatever can fairly be
attributed to the photographer’s original contribution to
the photograph. It certainly can be argued that Fairey stripped
the photo of most of the protectible elements, so that he
took only the unadorned image of Obama’s face—something to
which the AP cannot claim copyright ownership.
We’ll see where it goes, but Fairey does have a history of
paying off people when caught with his hand in the arty-jar.
And he can readily afford it: Despite his cultivated “street
art” image, he’s done ad campaigns for the likes of Pepsi
and Hasbro, and has a clothing line that I can only imagine
is exploding.
Over the weekend, while en route to a career retrospective
opening at Boston’s Institute for Contemporary Art, Fairey
was arrested by Boston police on a couple of pending graffitti
charges. Fairey likes telling people he’s been in jail 14
or 15 times. Headlines and more headlines. Life is good. Obey
Fame.
—Paul
Rapp
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