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Shepard Fairey’s image below has achieved legendary status as one of the most recognizable icons of the now historic Barack Obama presidential campaign. The image above it may become as legendary for being the foundation of a successful copyright infringement suit against one of the most recognizable icons of the Barack Obama presidential campaign. The case for infringement is very strong, but that’s not why I’m pissed off at Shepard Fairey.
Analysis by stevesimula on Flickr of the image by AP photographer Mannie Garcia compared with Shepard Fairey's Obama HOPE poster.
Last year, at the Microsoft Pro Photography Summit, I advocated a policy of letting your online images get swiped for non-advertising use as long as they were accompanied by click-through attribution to your web site. I feel very strongly that there is more value using your images to get exposure on the web versus the money you would earn in selling your photos to blogs and other online entities. This assertion has been heard with differing degrees of shock and appreciation. I have been sure to put my photos where my mouth is with the following paragraph on the “about” page of my website:
“Copyright rules governing the material on this site: As long as you don’t use any of the copyrighted material on this site for advertising purposes or in association with anything illegal, AND you give me attribution in the form of a link back to this site, then grab the goods.”
Before the internet became a quotidian communication medium, Shepard Fairey was a significant figure in the underground art world. However, his huge popularity in the mainstream, especially the popularity of his Obama image, is a direct result of the internet. Acknowledging Mannie Garcia, the photographer who provided the image for his art piece, would have been an extraordinary example of online creative kinship. The type of creative kinship that fuels the remixing of existing creative works found online, as well as some of the best applications that have ever existed via the open source software movement. (If you’re reading this in a Firefox browser you’re reaping the rewards of this ideal.) Mr. Fairey could have brought Mr. Garcia some significant attention without detracting from his own.
In failing to do so, Mr. Fairey let us all down. He violated the unspoken, inviolate rule of the internet community. Acknowledgment has been expected online community behavior since the pre-browser days of the internet. It is the one continuous thread that makes the evolving internet a successful democracy.
I’m sure Mr. Fairey was totally unaware that his piece was destined for such popularity. I’m also aware that Mr. Fairey is notorious for using his work to challenge established social norms. But the Obama campaign was different. It was one based on change. It offered real hope that the ideals of the rest of us, the public, would finally take precedence over the few with access to power. Mr. Fairey’s failure to recognize the importance of the celebrity of his Obama piece as an endorsement of the true democracy of the internet is a disservice to us all. Especially when one considers how easy it would have been to give credit where credit was due.
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February 17th, 2009 at 11:37 am
Bennett Hall
I agree completely with your assessment – anyway I look at, this is a derivative work, which I understand is not fair use when there is commercial gain involved, as it appears the case here.
In the way of history, some decades again, I recall well a case whereby Morton Beebe litigated against Robert Rauschenberg over the famed collage arftists use of a published image Morton shot of a diver – it was the principle visual element in the collage. I believe the disposition of the case resulted in Rauschenberg giving an original signed piece to Mr. Beebe. Also, some years later, Jeff Koons copied a photograph by Art Rogers called “string of puppies”and made it into one of his mammoth scale sculptural pieces – Mr. Koons did not change at thing about the image – only the medium – I do not recall how that matter was resolved but a matter was initiated
SO why is that today it is more OK to lift an image and create a derivative work for gain. Was their change in teh copyright law that I am not aware of?
It does not seem to me that it IS OK – especially as I understand, that a fair amount $ changed hands in this case.
February 17th, 2009 at 12:17 pm
jonny
I think it’s not just an ‘unspoken’ rule, it’s a LEGAL requirement at the very least. If you are going to derive works, you have the obligation to get permission, or make payment where necessary.
February 17th, 2009 at 1:44 pm
Lou Lesko
Much of the lifting of work on the internet has more to do with education than anything else. The internet was established as a free exchange society open to everyone. Most people lifting images don’t have any idea about copyright law or the fact that they are violating it. As professionals we need to understand that placing our work online may result in it getting used as part of another project. That’s the brilliance of the remix.
Acknowledging sources goes a long way to avoiding litigation. Had the Richter Scales acknowledged all the photographers in their piece, there probably wouldn’t have been such a storm over the issue.
February 17th, 2009 at 9:13 pm
Willie Fagan
Hi Lou,
Greetings from Australia.
In the spirit of your remarks above, is it ok if I (or anyone else), use the same wording regarding copyright and attribution via a link? :-)
I think it is a great idea, but thought it best to ask your permission first.
Regards,
Willie
http://williefagan.blogspot.com
February 17th, 2009 at 9:57 pm
Lou Lesko
Willie: Absolutely. Thank you for asking. A big hello to everyone in Australia, and please know that my thoughts are with those affected by the fires.
February 17th, 2009 at 11:10 pm
Willie Fagan
Thanks on both counts Lou.
I am in Melbourne, capital of Victoria where the fires are still raging.
We lost a volunteer firefighter last night. These men and women are true heroes!
The rest of us are in their debt and cannot repay.
Again, thanks for your kind thoughts.
W
March 5th, 2009 at 2:27 pm
What fandom and cultural context can tell us about the Obama Hope controversy « The Learned Fangirl
[…] use (or copyright violation) is the role that cultural context can play. A related issue is the attribution/ownership/licensing of the original photo, discussed on Fresh Air — plus the initial filing […]
August 25th, 2009 at 2:09 pm
Is giving credit all that hard? : Lou Lesko
[…] same goes for artists like Shepard Fairey who I chastised for not attributing the source photograph of his iconic Obama image to photographer Mannie Garcia. […]
August 28th, 2012 at 8:47 pm
Cristian
James, that is a very nice poster.I mlyesf enjoy Shepard Fairey’s work, although it is hard to agree with his ethics all of the time. He freely admits that he appropriates cultural images from other artists, puts his spin on them and releases them as part of his own artwork. For every amazing poster, like the HOPE poster or the Duality of Humanity series, there are several less technically and visually appealing releases that make you wonder what Fairey’s grades at RISD were. I think his reasons for using appropriated images puts him just barely on the side of acceptable in terms of art, but unfortunately the legal system seems to see things in much more stern and less open minded terms.As far as the AP Image case goes, I think Fairey was fully in his right to use that photo as a reference when creating his poster. First, he is not trying to sell a copyrighted image. He did not claim the photo as his own work and he is not trying to sell the photo. Second the HOPE poster is very different from the photo it references. The composition, colors, medium and feeling of the two are very different. Unless the courts decide the AP can copyright Obama’s face, hopefully this case will be dismissed without any damaging (for other artists/designers) ammendments to US Copyright law.