2.12.09 On Shepard Fairey

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 re-use 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 who 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 of photos 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 website, 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 look foolish, sad and clueless.

And now this, going after 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 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 to 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.