http://www.flickr.com/photos/gelatobaby/2285248646/

Is ANY of it ‘ART’ ? Well, for me, NO, but hey, I’m willing to PLAY with both the mechanics of photography AND computer graphics, but if you want a real genuine and ORIGINAL hand-crafted Obama Portrait, put a pencil or paint brush in my hand and let ME do it all by my Self …

The Associated Press situation involving the artist Shepard Fairey and allegations of copyright infringement has taken a twist. Shepard Fairey’s legal team broke settlement negotiations with the AP on Friday. Earlier today the artist filed against the AP in hopes of gaining a supportive decision from a judge concerning his use of the AP owned photograph which served as the base image for three versions of Fairey‘s Obama posters.The AP wants to make it clear that works by photographers and artists should not be misappropriated by others.

This case will be important because if Shepard Fairey wins it could mean that any photograph or image of art is fair game. This year will either be a major blow for copyright or a year that brings a clear definition of what fair use is.

More on the story,

http://www.myartspace.com/blog/2009/02/shepard-fairey-sues-associated-press.html

And why Baxter Orr’s poster involving Fairey’s Obey Giant is fair use,
http://www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

step 1.. find photo

step 2.. run through a crummy copy machine

step 3.. color in shapes

step 4.. make silk screens

step 5.. sell millions

It is not about how nice or lovable you think Shepard Fairey is nor is it about how hard he works. No one is questioning the good that he has done or how hard he works. What people are questioning is the fact that he has willfully infringed on copyrights several times. In one interview he actually said that if he is “busted”, which is what he calls being caught for infringement, he hopes that it is a “good bust”, does not involve legal action.

People are outraged because the same thing that happened to the music industry is now trying to happen against the visual art industry. Contrary to popular belief for many of us art is a business. We create out of passion and if we can profit from it good. But how can an artist profit from hard work and dedication if an artist like Shepard Fairey can take from that work and do what he sees fit to it FOR PROFIT while holding on to a fragile foundation of fair use. If we follow Fairey’s idea of fair use all images would be up for grabs. He tends to use images that are not widely known. That is why fair use does not apply. The photograph of Obama itself was not a widely known photograph.

I’m personally sick of people using Warhol and others to defend Shepard Fairey. Warhol used images that the public knew of. Everyone knew that his Monroe’s were a comment/parody of the famous photograph. The same thing goes for the soup cans. Under fair use today it would be perfectly acceptable to do that. Fairey failed at fair use because people did not make the connection between the photograph and his posters. That is because the photograph itself is not widely known. In order to claim fair use you almost have to use an iconic image as the foundation of the new work. Fairey is only saying it is fair use to cover himself and he is not doing a very good job of that.

Since he donated over $400,000 to the Obama campaign from his profits selling the posters I hope that he will have to give $400,000 to the AP if indeed they are the copyright holder. I also think that members of the Obama campaign need to be questioned and perhaps included in any copyright infringement case that comes of this. Workers from the former campaign are now saying that they never suggested a photograph to Shepard Fairey but other articles from last year suggest the opposite. Either Shepard Fairey is a liar or the former Obama workers are.

If this case goes to court and Shepard Fairey loses to the AP it will be a great win for artists who support copyright protection. It will help to define the limits of fair use… which ARE LIMITED in the first place. Copyright laws were not made to protect people who willfully steal. They were made to protect creators so that they will continue to create knowing their work is safe. If you have not noticed there has been a boom in the number of artists since strict copyright laws have been around. Copyright creates an environment that respects creativity. People would not openly show their works if they thought someone could use it without giving them credit.

Maybe Obama will make a statement about the importance of copyright laws. I think he should apologize for supporting a poster that violated a US law. If he can take the time to send Fairey a personal letter thanking him for his images and for putting work on stop signs I’d think he can take the time to address copyright and why we have it in the first place.

The poster failed at fair use because people did not make the connection with the original image. The basis of fair use is that you comment or parody another work. If that connection isn’t made fair use does not apply. Saying that the public or the AP is silly for not making the connection only helps strengthen the case against Fairey. Keep it up.

There is only three reasons people defend Fairey. They are fan boys. They think a slam against the Hope poster is a slam against Obama. Or they don’t care about copyright in the first place. If this was just some kid posting altered AP images everyone would agree with APs choice to seek compensation.

There are many artists who have alleged the same thing about Fairey. So if AP wins it will open the doors for others to file against Fairey. The guy could be a pauper before it is over and it is because of his poor choices. He should have learned after settling out of court when he infringed on the copyright of Rene Mederos.

I imagine that artists — as Mannie does – understand the creative process and respect the flow of creativity that is sparked from one source to a new one making it unique. It’s the corporate world (bestowing billions in bonuses to themselves after taking TARP money) who would pry every bit of compensation they can muster from a struggling illustrator in the name of derivative infringement.

Albeit, Fairey is very successful and not one of the strugglers. But 99% of the working artists in America work 12 hour days seven days a week 365 days a year to turn what’s effectively an hourly minimum wage into a survivable living. We can’t afford to take our own photographs. Say you get $500 to do a quarter page editorial spot of Obama for Newsweek (less – $200 a spot for textbooks). How can you then afford to do a photo shoot? And getting a good likeness of someone so recognizable from a compilation of source photographs takes hours and hours of refinement to nail. Then you could be told by the art director that s/he doesn’t like that angle, please re-do from a new angle. Color then needs to be applied and, most likely, further changes will be ordered by the art director. So now you’ve most likely averaged about ten dollars an hour on the job and would be richer flipping burgers.

What I’m trying to say is that without using photos as a basis for our work, Illustrators in America would not survive. Only the one’s in India would and AP would probably have little luck suing them!

http://www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html

http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=160312817014

Oh, and don’t be afraid to bid, people. My kid goes there too. :-)

You seem angry.

http://www.law.cornell.edu/uscode/17/106).html

People might want to read the Berne Convention, Madrid Protocols, Universal Copyright Code, and the US Copyright Laws, before making encompassing statements about what is or is not Fair Use, especially in derivative works:

http://en.wikipedia.org/wiki/Derivative_work

Lots of good links there. Also try:

http://en.wikipedia.org/wiki/US_copyright

http://law-ref.org/BERN/index.html

Problem that is when people make these assumptions, it opens up misinterpretation, which can lead to abuse. People who want to work under these laws should know a little about them, and realize there is room for interpretation, often only solved in court.

The proposed Orphan Works Bill in the US could have been one defense Shepard Fairey might have tried. He could simply claim he tried to find the originator of an image, and could not, thus limiting challenges and potential damages against him.

You say; “Whether or not Fairey made a penny off the Obama campaign directly with his work, it’s raised his cachet as an artist and made him world famous. At the very least, the original photographer should be credited as well.”

What you don’t know is, that for the past two years Shepard Fairey has been one of the most important emerging artists in the world. He did not need the notoriety he received as a result of the Obama campaign poster. It obviously gave him much publicity but he was already there with out it.

Just think about it: if the photo was already an icon, then how would that change your reaction to the poster? Of course, you would say that the copyright was infringed, because anyone could have spotted the resemblance then.

But what do I know. Common sense tells me that photographing the Marlboro Man directly off a billboard is wrong — but I guess not.

My vote is not to shackle designers but to give them the benefit of the doubt and as much freedom as possible.

If the photograph had been more iconic and “rare” would Garcia feel the same way about its appropriation? Has this particular photo been used anywhere else? Seems to me the photographer sees the photo as a throw-away that happened to get a second life and helped boost his visibility a bit in the process. Maybe a bit of back scratching should be in order by Fairey if he’s not going to be sued.

I dislike most of the true or false aspect of the law, the hard resistance to much of the gray matter in between (where this issue falls). As photographers (artists), we need to make the decision for ourselves if we are going to draw the hard line or let those things slide that are clearly infringements but help us out in some way.

By what principles do we as individual photographers act? It’s certainly easy for us to comment on this and other instances. We don’t have a direct stake in the outcome.

But, what would you do, really, honestly, in the same situation? Would you hard-nosed “make him pay” types really do that or would you appreciate the bit-o-fame?

Would you “hey, it’s more exposure than I could have gotten on my own” types really let it slide or would you want to get some money to help pay your mortgage, buy some new gear, or fund that promotion campaign you’ve been wanting to do for years?

I can’t say what I would do until I’m placed in that situation. I hope I would try to make the situation a win for me as well, whatever course that might take, and to whatever extent I would need to go to make it happen.

The hard line is this appears to be infringement. The gray matter is anybody’s guess.

Cheers
Alleh