Wednesday, October 21, 2009

2.22.09 DOPE

This article originally ran in the 2.22.09 issue of Metroland

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 mega-corporations, 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’s 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. 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 Fairey’s 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.

Meantime, 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, that both Fairey and the AP were acting in bad faith, and that 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—that 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 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 website.

Oh boy. To say Fairey is an idiot would be an understatement. He’s 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 of 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 succeeded, 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 detail about Fairey and the case, and can be found here: 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.

It's likely 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 to 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 X-mas caroller Bob Dylan once said “if you’re gonna live outside the law you must be honest.”

Obey truth.

Thursday, October 08, 2009


I’m just back from the Future of Music Coalition Summit, which had a couple of major themes: (1) fan-financed recordings are becoming a major driver in the DIY world (check out new player; (2) the music industry is rapidly moving from being product-oriented to service-oriented; (3) Spotify, a UK internet and mobile device music delivery company, is going to change everything when it gets here in the next year or so; (4) Senator Al Franken rocks; and (5) the traditional music industry, represented by a slick RIAA flak who embarrassed himself repeatedly on a Monday panel, is pathetically arrogant, disingenuous, and increasingly irrelevant. But we already knew that. Here’s some money quotes from the conference:

“If you can’t get people to take your music for free, don’t focus on how to get people to pay more for it” – Jed Carlson, ReverbNation, quoting Eric Garland, Big Champagne

“Now we’re living in a time where every musician is DIY, no matter how big they are” — Greg Kot, Chicago Tribute / Sound Opinions

“I feel so old-fashioned, having a record label” — Mac McCaughan, Merge Records

“The internet is one big file-sharing program. It’s what it does” — Bertis Downs, REM management

“The music business was built by Rube Goldberg, and it was designed by Kafka” —Bertis Downs quoting Rob Glaser

“I like how the Future of Music Coalition provides exposure for up-and-coming musicians like Mike Mills. Watch that Athens Georgia scene, there’s a group of youngsters I think’s gonna be big called the B-52’s” – Senator Al Franken, after being introduced by REM’s Mike Mills

“As far as I’m concerned free speech limited or free speech delayed is the same thing as free speech denied” – Senator Al Franken, advocating for net neutrality

“This year the music business is shifting from blocking content to connecting fans with artists” -- Joanna Sheldon, Google

“Copyright didn’t come from Adam and Eve, it was concocted, and I think there’s a reasonable argument to be made that it’s outlived its usefulness” –Peter Jenner, Pink Floyd manager

“It took the labels ten goddamn years to figure out that people wanted MP3s” – Tim Quirk, Rhapsody

“You should’ve negotiated a better deal to start with” – Steven Marks, RIAA, addressing Tim Quirk’s complaint that the major labels demanded more money after Rhapsody’s iPhone app was accepted

“That was a very, very stupid thing to say” – Tim Quirk, responding to the RIAA’s Steven Marks

“It’s asking a terrific amount to get the turkeys to vote for Christmas” – Peter Jenner, commenting on getting the labels to change their business model

“I start every music story from the perspective that ‘people aren’t going to like this’ and then try to give people reasons to care” — Bob Boilin, NPR

“Every time I open up a CD I realize I’m holding someone’s heart in my hands” – Bob Boilin

“Jazz is not dead. It doesn’t even smell funny” -- John Davis, NPR

“The radio stations say they shouldn’t pay artists because radio promotes the artists’ music. But, then, so does everything else” -- Congressman Mike Doyle (D, PA) on Big Radio’s resistance to the performance royalty bill before Congress

“I’m not sure why the record companies should get any of that money” – Congressman Mike Doyle on the performance royalty bill

“We’re aiming for the end of this year or the beginning of the next” – David Ek, Spotify, on when Spotify will be introduced in the US.

“Don’t worry about making a pristine recording; just make sure it’s good” – Ian MacKaye, Fugazi, Minor Threat

“I still record on an 8 track cassette machine, I want less options, not more” – Ian MacKaye

“If you can get fan respect and build some trust, you can get heard above the noise” – Brian Message, Radiohead management

“We should try to address this huge problem now, before it becomes an overwhelming problem” – Peter Jenner, on the lack of uniform and accurate metadata tagging on digital music files

“If someone names their band Various Artists, they’ll make a lot of money from SoundExchange” – Barrie Kessler, SoundExchange

“Monitizing anarchy means losing your house” – Jim Griffin, Choruss

“People ask me about the future of the music business and I say I hope my infant son someday gets laid to a mixtape” – Jim Griffin, Choruss