If the AP Has the Right to Do What It's Done, Then So Do I

My lawyers filed my response to The AP's claims against me on Tuesday. It includes a dozen examples of AP photographs that consist almost entirely of copyrighted artwork from me and other artists. Today, The AP issued a statement accusing me of "making attacks" on them. I don't feel the need to respond to that in detail, because my lawyer already has.

As I have stated before I am fighting the AP to protect the rights of all artists but I do want to emphasize one other important point. I'm not accusing the AP of infringing anybody's rights. I'm saying everyone should have the same broad rights of fair use and free expression, and that includes The AP. I'm not questioning The AP's legal right to do what it does. But I am saying they have to be consistent. They can't have it both ways. If AP photographs that do nothing but depict other artists' work are protected by fair use, then my work has to be, too, because it's at least as transformative, creative and expressive as The AP photos we identify in my response, if not much more so. If the AP has the right to do what it's done, then so do I.

Comments

[BillDodder]

It is about time for a class action against the AP

The AP has become very bad for America,and I think that the Moreovers, Shepard Fairey's and the All headline News' of the world all need to get together and take them down a few notches.

[Bucket-Of-Love]

Roy Lichtenstein took Warhol's early paintings of cartoon still frames, using commercial art techniques that were scaled to the size of the larger canvases, and propelled his career from it. Warhol, who understood better than others about the intricacies of the creative process, said "So what? Lichtenstein did them better than me".

Warhol's career, often misunderstood, was a sly critique of the art world.

The idea of intellectual property in art is tied to the bourgeois co-opting of art by wealthy merchants during the Renaissance. It's legacy is that Art is equated with Market. Because most everyone has that bred into them from birth, it goes unquestioned.

The market for art, including concerns over intellectual property, is commerce. It is not art -- it is SEPARATE from art. Fairey's case merely points this out. Many people argue against this point. And, the concern, while being related to matters of commerce, is not at all a part of the art it uses to promote its point.

[Jacob White]

I have to be honest, I thought Sheppard was in the wrong here for fighting the AP on this issue, but after reading this essay, I do believe there is essentially nothing separating what he did and what the AP does when photographing some of Sheppard's works.

[gilster]

There is only one issue here.....t­here is like 350 million dollars spent each second trying to capture and control every brain cell in my head via advertising etc., so if I takes this plethora of nauseating attempted dominance and do something with it via creativity, then I am the bad guy? When I take control, I am the bad guy? Please....­...

[monkeyrocketsurgeon]

well said gilster... indeed!

shepard keep at them, you are the just one in all this.

[alexis d]

We're with you, Shepard.

[revhatchell]

f the ap!

ps. fairey, would you mind signing mah "obey" poster? thaaaannx.

[peacegurl48]

MANY people then took Fairey's image and used it...where will the litigation end?

[kgb999]

Jeez dude. Give it a rest already .... this is even more wacko than your last argument. The copyright holder of a physical work of art has the right to control if it's photographed . ...

"A work of art that is copyrighted may only be filmed in general installation shots, containing more
than one work of art in each shot (unless permission from the copyright holder is granted for the
specific project). Loans to the permanent collection each have their own specific loan agreement
outlining the individual lender’s wishes regarding photography. These objects cannot be the focus of
any photography or filming without confirming the lender’s permission in advance."

http://www.cincinnatiartmuseum.org/absolutenm/articlefiles/66-General%20Guidelines%20for%20All%20Filming%20and%20Photography.pdf

you are gonna loose in court and nobody's going to care.

[alexis d]

Speak for yourself.

[MoDMaN60]

Fairey's argument goes to that exact principle. The AP and other photo sources regularly infringe on the copy right of artist's work, especially street and digital artists. "If they have the right to do it so should we."

He's arguing for a broader interpretation of fair use, which is where the general public and creative class have already moved. The law needs to catch up.

I think he'll probably win, but with some sort of admonishment or slap on the wrist to all parties involved.

[LeeCalif]

AP = Irrelevant Biased News

[Siobhan11]

Whether AP has a legal case or not, this is silly and in my opinion makes them look petty. I mean it is a photograph turned into art. Fully admitted up front. It is not like someone lifted words from a story and passed them off as their own.

They may say they are protecting themselves from this happening all the time. But this to me was a special circumstance. I doubt that there is going to be a big run on taking news photos and turning them into art.

[kgb999]

It wasn't upfront or admitted. The only reason the original photographer is even know is because the AP sued Fairey .... who prior to the lawsuit took 100% credit for the image as his own work without attribution.

[Siobhan11]

I had read quite a while back that Fairey admitted it freely. Unfortunately I don't have that article in front of me to back my statement up. And it is possible the article was wrong or somehow I misread. I am just commenting here again to note that I didn't make up a lie to bolster my argument. I believed what I wrote,

[LeftRight]

He NEVER took credit for the image. He took credit for the ARTWORK, but that's not the same thing!!!

Think about it this way, in the 40s through the 80s, Issac Asimov wrote a series called the Foundation Series, about the collapse of a galactic empire some 20,000 years in the future. In so doing, he took a lot of information from The History of the Decline and Fall of the Roman Empire as written by English historian Edward Gibbon.

Having read the former, and some of the latter, I can assure you, the science fiction is BASED on the history, but it's not the same thing. Should Asimov have credited Gibbon's descendants?? Hardly, it's a completely separate story!

[alexis d]

And if they did, so what?

[momof3inGA]

We agree with you 100% Shepard.

[doctordawg]

Give credit to the originator and the remodeler, i.e. PAY UP when you stand on the shoulders of giants.

Otherwise, none of this means a cr@p until we prosecute the torturers and their masters. Right now, the only thing that matters is that we prosecute the torturers. Until then, we are all guilty of aiding and abetting war criminals, and a photo here and a copyright violation there is nothing but distraction from our greatest sin.

[max]

do an "arrest torturers" poster

[MarinaInMA]

YES - Use this opportunity to create more art that raises awareness and rallies support for current, critical issues.

[Bucket-Of-Love]

I totally agree. Social concerns trump commercial concerns. This lawsuit can be a mere bump in the road if a broader ambition is met by leveraging the publicity that it has generated.

[zola77]

We're with you Shepard. You have done great work. good luck.

[Gronkie]

I'm not a lawyer, nor do I play one in interweb comment sections, but it seems to me that there is a parallel to the work of musicians who sample the works of earlier musical artists. In the early days of sampling, there were no credits, even though the samples were often very obvious (the bass line from Ice Ice Baby, for instance, sampled from David Bowie's Under Pressure). The same arguments of transformation were made, but eventually, this issue was solved in the courts, and while sampling is still allowed, the user must credit the original composer. It leads to hilarious composer credits which list numerous, often disparate composers for a single work. I understand Mr. Fairey's use of a compelling image, transforming it into a new work of art, but he still sampled a copyrighted image, and he needs to properly credit the original artist. If we are talking about fair use, then it is only fair to the original artist who created the original image.

[novabird]

I agree! Times change, technologies change, social practices change and art is the living, breathing response to these changes.

We are all in the middle of trying to decide if the old idea that: "it's on the internet so it's free for the taking because culture just gotta be free" is ethical, workable, legal or fair.

[NightMoves]

I'm pretty sure the company that owned the rights to Under Pressure did sue Vanilla Ice. Fairey probably should have given the AP credit for the photo but it still seems like the AP is being a huge a-hole.

[alexis d]

The AP didn't credit the photographer. Shepard has said over and over that he'd credit the photographer, which is more than the AP would do.

[novabird]

What are you talking about?

Fairey has built his entire career on taking the artwork of others and changing it slightly and making money of it.

He didn't credit Mannie Garcia until he was forced/shamed into doing so. (see, I used the man's name, something that the free culture advocates don't seem to want to do)