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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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