2/10/2009
Maybe it’s… not OK, Shep
Followup to last August’s It’s OK when I do it, but… post:
A few days ago I heard Shep Fairey interviewed on NPR (I think it was Fresh Air.) The subject of his “influences” came up, and in particular the source image for his iconic “Hope” poster of Obama.
As I recall from the interview, Fairey said that he had no idea who took the original picture he appropriated. He said he hadn’t been contacted by anyone… but if he was, he sure would like the opportunity to say “thanks!” (said in an eager-beaver “golly, thanks a bunch, buddy!” tone.)
Now maybe he’ll have to say a whole lot more than that. Apparently the source photo was by AP photographer Mannie Garcia. A press release by the AP claims that Fairey’s appropriation is better described as copyright infringement.
(In the interests of avoiding accustations of “pulling a Shep” myself, I’d like to acknowledge Creativepro.com as the source of the above news and image. Refer to their post for additional info, including a link to a Print interview where none other than Milton Glaser weighs in with his thoughts on the matter. Also, I did not contact or compensate Mannie Garcia for displaying his photo beside Fairey’s poster, which truth be told I just lifted off the Creativepro site… who in turn seem to have lifted it off the Print site.)
by Dirt at 1:08 pm under art & media, design, general, illustration, media, photography, politics, printed materials
9 Comments
I know this puts me in opposition to Milton Glaser, but I think Fairey’s work is a textbook example of fair use. It seems very obvious that original image was not simply copied; it was referenced, built upon, and incorporated into something different. I hope the judge agrees with me.
I agree with Sean. It’s not like Shep represented the photograph itself as his own photograph. If anything Shep is guilty of Gestalt infringement—and malicious destruction of public property.
I assume the argument against copyright infringement is that SF made several artistic choices in rendering the final product. There is less negative space at the top of the ear and the contour of the shoulder is different. Also, the angle of the head is different. The overall composition is different — less space above the head. Also there were artistic decisions made as far as color scheme, how shadow was being rendered.
Caricaturists use reference photos from media all the time. They generally don’t go out and shoot a photo of a celebrity and base their caricature on that. They go to websites and find photos and make artistic decisions on how to reproduce what is in it.
If somebody painstakingly painted every pixel of the photograph onto a canvas, would that be copyright infringement? I think many people would say that there was an effort of observation which they might respect as “artistic.” SF’s work looks like it has just been run through a photoshop filter and tweaked a little, so it looks like he’s not putting any effort into it.
If a national news program ran every photo through Fairey-izer set of filters and used that to sit behind the talking head on each news story, would they have to pay for use of the original, non-manipulated photo? Is that a piece of custom art? What if they ran it though filters and then had some idiot savant copy it line-for-line, color-for-color on a piece of posterboard and then shot that?
What if SF took the photo and just started airbrushing it and resizing different parts to make him more “handsome” or “presidential”?
Another case would be audio sampling. If you take a drumbeat and run it through distortion, or flip it backwards, you are making an artistic decision on how the result is going to sound, which is completely different than the original artist’s intent. Are you still guilty of copyright infringement? What level of sound manipulation is required before it’s not?
I have no idea how lawyers approach these cases, but I think many judge a piece of art solely by the effort or “talent” used to make it — either the hours sunk into it, or the “i could do that” vs “i could never do that” spectrum. The first thing my brother always asks if I show him a drawing that looks close to what I was copying is “did you trace it?”
Also, I think that nationally distributed media is part of our landscape, albeit a cultural one. An effective way to provide artistic discourse on this landscape is appropriation and recontextualization. Dada collage is pretty widely accepted as art, even though they are just snipping out pieces of magazines and such. I think recontextualization is continues to grow as an acceptable “artistic decision.” But I’m not sure exactly how this qualifies as recontextualization. I have begun to think SF’s whole gambit with the “communist vibe” is that this landscape is owned by everybody and it is all fair to use. However this is in complete contrast to the previous Shep post.
It’s a gray area, but I don’t believe this piece is copyright infringement any more than warhol’s elvis or marilyn monroe. I’m kind of biased, though.
I recently did a roller derby flyer where I took photos off the web to use as reference for the poses, outfits, etc. I didn’t credit these photographers anywhere. But of course my end result is far more ghastly than the originals. Also, I was doing it gratis, but I guess the Roller Derby league makes money using it as advertising. It is way under the radar, but would the photographer have a case against me?
Meanwhile…
Faireyize it!
Some of mine:
Memebon
Yarnoise
GF
Coworxer
Copyright infringement is about as gray of an area as it gets. On one side, I salute collage artists, sample artists, and occasionally recontextualizers. I tend towards a socialist viewpoint where nobody really owns anything artistic. If nobody is profiting from someone else’s intellectual property, then I don’t see a problem. Fairey, though is a lazy opportunist and a businessman above all. I would hardly call him an artist. I would have more respect for him if he didn’t commercialize his art. Also, he’s certainly not the only person to recontextualize political art of the past, but he’s probably made the most money from it. I’m reminded of Sony’s recent commercial stunt, where they blatantly ripped off Improv Everywhere.
In the words of the unassailable Flavor Flav – “y’all can’t copyright no beats, man!”
Eve – that Sony ad was such crap, although I wouldn’t say it’s a blatant ripoff, but obviously they got the idea from IE. It just makes the IE stunt more respectable, IMO.
My frame of reference for both these posts is Fairey’s unhappiness at seeing his pieces appropriated by others. If nothing else, that suggests he has a thinly reasoned viewpoint on intellectual property issues (…along with an obliviousness to irony I wouldn’t have expected from the man who made Andre the Giant a subcultural icon.) To borrow from Eve’s description, it points to a certain laziness of thought that’s hard to respect or sympathize with.
All that aside, I myself can’t claim to have a precise definition of how or where art and ownership intersect—or whether they even should. For every instance where I appreciate the results of free-from-obligation recontextualizing, I can probably find an example that (to me at least) lends some support to the notion that a creative individual can assert some rights to works they produce. (Actually, the latter makes a lot more sense to me with the addition of the phrase if they so choose—which is maybe what is so attractive to me about movements like Creative Commons.)
Anyway, as J-Dogg points out, there’s no shortage of case studies and theoretical situations that illustrate just how convoluted and fuzzy the map of reasoning becomes. Speaking practically, I find I’ve already resigned myself to tacit agreement with some existing viewpoints on the subject. For instance, my company expects that when I use any creative work (photograph, collage, illustration, typeface) it will be fully licensed, paid for, and duly credited. That’s considered obligatory even if (for example) I clone-stamp, adjustment-layer, and otherwise obliterate the source image’s pixels into a state far different from the original. (Apparently this IS legally recognized as still being a derivative of copyrighted work.) However… the same company that respects the intellectual property of everyone else also considers my employment to be “work-for-hire”—meaning I have no legal rights to anything I create under their employ. Whatever I create with those licensed and credited works is owned entirely by them.
With that in mind, I think it’s worth noting that (to my knowledge) Mannie Garcia himself isn’t pursuing a claim against Shep. Rather, it’s the AP corporation that sent legal communication. (In the press release AP describes Garcia as a “temporary hire no longer with the company”— a work-for-hire arrangement, I’m sure.)
And the saga continues… apparently Shep has now retaliated with a lawsuit against AP.
As an apparel designer, I’m in pretty much the same boat as you, Dirt. And it’s actually not possible to copyright a piece of clothing, anyways. Only things like logos, or surface design/graphics/prints/lace patterns can be copyrighted. So, when I’ve seen pretty much direct knock offs of my designs places (I’m looking at you, Anthropologie & Lucy B!) Not only do I as the designer have no recourse, the company I work for pretty much has no recourse either.
The only thing we can do is get into agreements with out suppliers to confine certain lace patterns so that our competitors can’t use them.
All that said, I think it’s fair use, and it certainly helped win the election, so it’s all good with me.
I do think that Shep does a lot more than just apply a filter. In a way, I think he’s a victim of his own success, because he makes what he does *look* so simple that people assume it *is* simple.