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Disobedient
Giant
If
you’re a regular reader of this column, you know that I’m
not a huge fan of Shepard Fairey, the artist behind the Obey
Giant and Obama Hope images. Not that his stuff isn’t good.
It’s all the self-generated hype, the masquerading as some
sort of renegade street artist while making gazillions designing
ad campaigns for megacorporations, and the repeated plundering
of potent historical political images for his self-serving,
faux-dada nonsense without any attribution to the original
artists or causes he steals from.
You probably know that Fairey is in the middle of a lawsuit
that came about when someone pointed out on the Internet that
his iconic Obama Hope image was based on an Associated Press
photograph. The Associated Press, which is rarely on the right
side of any intellectual property issue, jumped ugly at the
revelation, even though it hadn’t bothered to uncover the
source of the image itself. So Fairey runs to court, with
the pro-bono assistance of the great folks at the Stanford
Fair Use Project, asking the court to declare his use “fair
use”—that is, exempt from any claim of infringement because
the Obama Hope work was transformative, not-for-profit, and
a host of other factors. The AP turned around and sued Fairey
for infringement.
Meanwhile, over the summer, the actual photographer, Mannie
Garcia, who is represented by the most excellent Albany attorney
(and the guy who taught me copyright law years ago) George
Carpinello, enters the case claiming that Garcia owns
the copyright to the photograph, not the AP, and that both
Fairey and the AP were acting in bad faith. Essentially,
Fairey was infringing Garcia’s copyrights, not the
AP’s.
There was a little twist to this case I didn’t know about
until this weekend. There was an issue over which of Garcia’s
photographs Fairey used for the Obama Hope poster. Fairey
claimed that it was a cropped version of a photo that included
George Clooney sitting at Obama’s side. The AP claimed is
was a different photo, one showing only Obama, that was likely
taken seconds before or after the other one. On Friday, Fairey’s
lawyers disclosed that they had just learned that Fairey had
lied to them and in court papers about which photo he’d used,
and he had destroyed evidence and fabricated documents to
hide the fact that he hadn’t used the Clooney photo as he’d
been claiming for months. He’d used the one the AP said he’d
used. Fairey has admitted as much on his Web site.
Oh boy. To say Fairey is an idiot would be an understatement.
He has severely damaged not only his own case but the cause
of those seeking sanity and balance in copyright law. And
for no good reason.
Whether it was the Clooney photograph or the Obama photograph
is largely immaterial to the fundamental issues of fair use
in this case. I suppose the Clooney photo would favor Fairey
a little bit because he could argue he used a smaller amount
of it for the Obama Hope image, but the more important and
central issues about transformative purpose and impact are
exactly the same. Fairey’s infantile and clandestine little
scheme would have had little or no impact on the case had
it suceeded, and it was doomed to fail in any event. Fairey
has stated that the fair-use issues remain intact. Well, yeah.
But what’s going to happen now is unclear. Fairey’s attorneys
have announced their intention to withdraw from the case.
The AP, smelling blood, appears to want to push forward. On
Tuesday they moved to amend their pleadings to incorporate
these new “developments.” The proposed AP complaint is full
of rhetorical, largely irrelevant, and really, really fun
details about Fairey and the case, and can be found here:
amlaw daily.typepad.com/faireyamended complaint.pdf. It’s
required reading if you’re closely following the case. This
is what you get when you have very, very good lawyers and
pay them well. It’s pretty awesome. It’s even got pictures.
I suppose that the fundamental issue of whether Fairey’s use
of the Garcia photographs is fair use will eventually be decided.
But Fairey’s case is severely compromised; the judge, as a
sanction of Fairey’s fraudulent conduct, could well limit
the evidence that Fairey can introduce, and Fairey’s gonna
have to find and pay a second team of lawyers willing to go
to bat for an admitted liar. I’m particularly incensed that
not only has this important question of the law of fair use
been tossed to the wind, but that the efforts of a bunch of
high-end public-interest lawyers have been wasted on this
pathetic little twerp.
Like that happy caroler Bob Dylan once said, “If you’re gonna
live outside the law you must be honest.”
Obey truth.
—Paul
Rapp
Paul
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment law
at Albany Law School, and regularly appears as part of the
Copyright Forum on WAMC’s Vox Pop. Contact info can be found
at paulrapp.com. Comments about this article can be posted
at rapponthis.blogspot.com.
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