The AP, Obama, & Referencing

I'm sure a lot of people are wondering about my case with the AP over the Obama HOPE poster. I can't talk about every aspect of the case, but there are a few things I want to discuss and points I'd like to make. 

Most importantly, I am fighting the AP to protect the rights of all artists, especially those with a desire to make art with social commentary.  This is about artistic freedom and basic rights of free expression, which need to be available to all, whether they have money and lawyers or not.  I created the Obama image as a grassroots tool solely to help Obama get elected president. The image worked due to many complex variables. If I could do it all over again, I would not change anything about the process, because that could change the outcome. I am glad to endure legal headaches if that is the trade-off for Obama being president. 

No disrespect was intended to photographer Mannie Garcia, but I did not think (and do not think) I needed permission to make an art piece using a reference photo.  From the beginning, I openly acknowledged that my illustration of Obama was based on a reference photograph.  But the photograph is just a starting point.  The illustration transforms it aesthetically in its stylization and idealization, and the poster has an altogether different purpose than the photograph does.  The AP photo I used as a reference, which I found out much later was taken by Mannie Garcia, (which was actually this one, not the one being circulated in the press) was a news photo that showed George Clooney and Barack Obama attending a 2006 panel on the genocide in Darfur. My Obama poster variations of "HOPE" and "PROGRESS" were obviously not intended to report the news. I created them to generate support for Obama; the point was to capture and synthesize the qualities that made him a leader.  The point of the poster is to convince and inspire.  It's a political statement. My Obama poster does not compete with the intent of, or the market for the reference photo. In fact, the argument has been made that the reference photo would have faded into obscurity if it were not for my poster which became so culturally pervasive. The Garcia photo is now more famous and valuable than it ever would have been prior to the creation of my poster. With this factor in mind, it is not surprising, that a gallery in NYC is now selling the Garcia photo for $1,200 each. As I understand it, Garcia himself did not even realize the poster was created referencing his photo until it was pointed out to him a full year after the poster came into existence. Mannie Garcia has stated in the press that he is an Obama supporter pleased with the poster result.

I did not create the Obama poster for financial gain. The poster was created to promote Obama for president, and the revenue from poster sales was re-invested in more posters, flyers, stickers, etc.., and donated to charity, including the Obama campaign. A free download of the Obama image was available on my website, which should provide further evidence of the desire to disseminate the image, not to benefit financially. 

Lastly, I m very saddened to see many people try to demean my Obama poster as being "stolen" or that because I used a photo I "cheated".  As far as the idea of the image being "stolen", I would love to have the clout to command portrait sittings from world leaders, but for me and most artists out there, that is not an option. For lots of artists, even licensing an image is out of the question financially. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning? Reference is critical to communication, and in my opinion, reference as a part of social commentary should not be stifled. 

A writer asked me why I "didn't just draw Obama from my imagination". My response was that I needed to make my image look like Obama, who is not an imaginary character. I know few people who could capture a convincing likeness of close friends or even their own family members from their imagination or memory. I use my own family members as models, taking my own photos of them to illustrate from -  VIVI LA REVOLUCION and COMMANDA.  Were Obama a member of my family I would have employed this technique. 

Another suggestion someone made was "why not splice two or three photos together and illustrate from that?"  Well, though a direct match would have been harder to find, with an image as popular as the HOPE poster, internet sleuths would probably have found the references and maybe I'd be facing two or three lawsuits. This leads to the next question: is illustrating from a photograph "cheating"? I studied art, illustration specifically, at one of the most prestigious art schools, The Rhode Island School of Design. At RISD I was taught to draw from life, to draw from photo references, and to appropriate and re-contextualize imagery. All of these techniques had historical precedents which I learned about. Here are some great examples of famous painters working from photo references, and not always their own photos.  - 

I have respect for, and have frequently collaborated with, photographers, but I do not think permission, or a collaboration is warranted in every case where an artist works from a photo reference. I collaborate with photographers because I WANT to, not because I believe I HAVE to. Usually, when I work directly with a photographer as a collaboration, I do so because I am building upon, rather than transforming their original intent. Of course, as with everything, the definition of transformation and fair use is somewhat subjective. I'm an artist, not a lawyer, so I'd prefer to see more latitude for creativity even though I do respect intellectual property. 

This case has raised many issues, including the use of references in art. Some of my earlier works have been attacked by some as "plagiarism". I think reference is an important part of communication and it has been common practice in the art world. When I flipped through the Christie's auction house catalog from November 2008 I found many pieces that are based on reference or appropriation. Most are selling for over $100,000. Some are more clever than others, but these are all works that are at auction being taken very seriously. Take a look.

If the AP wins their case, every Obama art (or any other politician) that was based on a photo reference that was not licensed would be rendered illegal. Here are just a few that were an important part of the political discourse during this election cycle. I also think art that is critical of leaders that neither the subject or the photographer approve of need to be a legal form of expression. I think this Bush image is a perfect example.

This is a blog post that speaks more to the legal issues in the case. Thanks for reading.

-Shepard Fairey

  

Cash Wang Guanygi Great Criticism Series: Cash $200,000-300,000

Chanel Wang Guanygi Chanel $25,000-35,000

Gold Toilet Sherrie Levine Fountain (after Marcel Duchamp) $150,000-200,000

Horses Richard Prince Untitled (cowboys) $400,000-600,000

Jetsons Kenny Scharf heaven $100,000-150,000

Language Joseph Kosuth Titled art as idea as idea $60,000-80,000

Marilyn Louis Lawler Does Andy Warhol Make $60,000-80,000

Motor Head Banks Violette Motorhead (inverted) $150,000-200,000

Poster Paintings Louis Lawler Two Pictures $50,000-70,000

Warhol Knock Richard Pettibone Andy Warhol 'Marylin Monroe' $70,000-100,000

 

 

Comments

[Julie Ward]

I am struggling to find the words to describe how pathetic, weak, ridiculous, unwarrented, blunderbussed, dangerous, violating, laughable, cheap, ugly, abominable, jeopardous, alarming, blotted, perilous, hazardous, offensive, heinous, loathsome and terrifing the argument against this particular piece of Shepards work is. They have got to be kidding right??? How is Mr. Fairey or ANY artist suppose to paint or draw anything without a point of reference? Helllooooooo McFly, it is called an art method. Jeeeez. I thought the AP was smarter than this.

P.S.-- The world needs more men like Shepard Fairey. Alot more.

[natgunter]

Mr. Fairey, from looking at the images in your upcoming NY retrospective and from being very VERY familiar with several past colleagues and contemporaries, you've done a lot of "referencing" throughout your career. You can read "referencing" as however you choose, but this seems to be only the most highly publicized incident in a long history of artistic "borrowing."

Best of luck with the lawsuit.

[Bucket-Of-Love]

Recontextualization of imagery (referencing, appropriation) begins as early as 1912 with the collage experiments of Braques and Picasso in painting. It is part of a dialog that emerges in 20th C Art that concerns itself with language constructs in art and the language of imagery. It is a core concern, as well as a stylistic derivation, of art since the 20th C.

After this discussion began almost 100 years ago, and the use of referenced images crept into the language, no outside force really could dictate how people examine and use language --- except, of course, in the marketplace, where money is at stake and "intellectual property" must be protected. Outside of market-related concerns, people examine and play with language almost entirely on an ad hoc and de facto basis.

What Fairey does, or what anyone else does in their art, is rather inconsequential in regards to some kind of "problem" that is a result of appropriat­ion...unle­ss, of course, the point is to support the idea that the art marketplace is the definition of art -- which is a concept that exists either for purposeful gains or because it is unconsciously perceived to be what art is.

[HappyMarsden]

Fairey says he did not create the Obama poster for financial gain, yet he certainly profited from it. He's made a career out of doing so, as I have learned. Playing the faux-revolutionary card (when he shows he clearly doesn't even understand the history of such revolutions), in order to sell t-shirts at Wal-mart, featuring artwork from true revolutionary or visionary artists, to teenagers wishing to play faux rebel. Artwork on t-shirts or posters that he's sto.len for himself, run thru photo.shop and slapped "andre the giant" or "obey" signs all over. Should "artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning?" he complains. How about "drawing"? It's usually associated with the word "artist". Most artists, I mean those who don't just make a living ripp/ing off the work of others, can usually draw. I've not seen a single instance of Fairey's work, that shows he even knows how to draw. Apparently, I'm not alone: art-for-a-­change.com­/Obey/inde­x.htm

[jbeach]

So?

He can be a lousy artist. That doesn't make him a thief if he works from a reference.

Plenty of artists with reference, and also directly with collage. To close this free speech off for all artists just because AP is mad *they* aren't getting a slice of another artist's money, is a terrible idea for the future of creative expression in this country.

I like Shephard Fairey's work. But he doesn't have to be a good artist at all, to still be right here.

[Bucket-Of-Love]

Warhol appropriated everything. As far as I know, he was not plagued with lawsuits.

[cdouglas]

People asked Warhol to screenprint their likeness. Warhol was making a direct commentary on commercialism and he commercialized himself and never claimed to be anything else. He saw himself as a product as well. Fairey claims a high ground as an artist but he is really defending the interests of his corporation.

[Bucket-Of-Love]

Campbells soup cans and Brillo boxes did not ask him to him to portray their likeness. Nor did a fair number of things or people, whom he portrayed, ask, either.

By the way, what do you mean that he "was making a direct commentary on commercialism". Also, what is meant by "he commercialized himself and never claimed to be anything else", and what relevance would that have? I'm curious about what point you're making, there.

[jbeach]

Whatever. Doesn't make Fairey wrong.

[blah7]

Are you suggesting that Warhol did not make financial gain from his work? Because you would be wrong on that one.
Whatever way you lean, there is a hug amount of precedence that invalidates the APs lawsuit.

[marmalidov]

You have a camera, you could have made your own picture. You may win the suit, you my lose it, but you will never feel the pride of creation that an artist feels, when their source material is their own, and you would not need to be creating this sort of argument, and you would not need to verbally defend your visual image.

Obviously you are going to show us Warhol, just as Warhol pointed to Duchamp, but Warhol also had to live with the realization that a lot of informed people thought he was a fake. When this is the situation, no amount of money, or well constructed argument, will make you feel better about your work.

[Bucket-Of-Love]

Why does this become a debate about pride of creation or about feeling better about one's work?

In regards to Art, I see this topic as being more about complexities around issues of images, their use, and the consequent meanings that result -- and not really about authenticity. If you argue that authenticity and concerns that are proprietary in nature -- which is really about the marketplace -- trump whatever it is that artists do, and have done, in whatever pursuits they've been involved in doing, according to their own whims, predilections, or schemes, then I'd suggest that you may clearly be mistaking marketplace for art.

[HighInfoVoter]

Copyright was originally intended by the founders to ensure value for creativity, to protect artists from being exploited without compensation. It was supposed to protect individual not corporate interests.

Unfortunately, as so much of U.S. law has been perverted toward the interests of corporate profits rather than the creation of new work copyright has been rewritten to protect corporations (specifically at the behest of Disney).

Fair use provisions were devised to encourage new works that may be inspired by existing work, that comment upon, enhance, and other wise draw attention to the previous work are just some examples of fair use.

If I were to create a documentary on racists attitudes from 1928 to 1946, using film clips from cartoons of the period would be a wellspring of illustrative examples. However, Disney would prefer to control information about it's period racism, and has been quite successful at having the copyright laws extended again and again.

The AP is not working to protect creativity, but suppress artistic expression.

[cdouglas]

There is a difference in intention. If you are making the proposed film with Disney clips, it is understood it is a critique. There is a huge difference between critique or homage and just taking an image and using as your own.

[HighInfoVoter]

However, you miss the point that Sonny Bono's intent, on the behalf of Disney, in extending copyright was to give greater control of critique.

[Sioen]

Thank you, Shepard, for your inspiring art work. The AP should lose this case, because your work is not derivative. It is commentary, and legal as is.

More importantly, though, your obviously quite original work helped build/sustain the meme when we needed it most.

I have stopped visiting the AP Web site in protest of this nonsense, and I mostly stopped reading their stories altogether, as they are hugely biased and often poorly written. (I was a copy editor at a major metro daily newspaper for years.)

Thanks for all you do; may you prevail.

[NotBob]

The image may be inspiring, but it is not inspired artwork. It is an altered photo taken by another person. Aside from adding a word at the bottom of the image and posterizing the colors, where is Fairey's vision? This is unfortunately what he does. He takes other peoples creations, ads some embellishments and calls it his own. Look at this web site for more examples:

http://www.art-for-a-change.com/Obey/index.htm

The irony of it is that even though he shows no respect for the original creators of the work he "references" he feels that once its his it should be protected as shown from his web site:

http://obeygiant.com/post/obama-pasters-update/

"If you are still interested in helping get the word out we have made a Downloadable Version of the OBAMA paster so you can print out your own paster to put on the streets. To download the image please right click here and save it to your computer. This downloadable image is not to be used for merchandise or any other profitable means and it is a copyrighted image of Shepard Fairey and OBEY GIANT ART."

[HappyMarsden]

Hey look! I'm Shepard Fairey too! Gee I hope Cheney doesn't sue me, 'cos I done him up good!

http://vector.tutsplus.com/illustration/create-an-inspirational-vector-political-poster/

[Principaldad]

Here is a link showing how to recreate the Mona Lisa using Microsoft Paint. It does a better job recreating Leonardo's work than the tutsplus tutorial does of recreating the effect of the Hope poster.

http://www.youtube.com/watch?v=uk2sPl_Z7ZU

Just because it is possible to almost recreate something does not mean that it isn't art.

[aercolini]

This is a free speech issue. The AP may have a right to protect it's property interest in photographs, but not at the price of punishing individuals who make that work substantially their own to convey a larger social and political message. I think their is ample Federal case law to support this. As far as I am concerned, their is nothing to even attribute to the AP. The painting was a radical departure from the AP's photograph.

[jbeach]

Exactly.

[kgb999]

The issue here is attribution ... not fair use. This is a derivative work without any acknowledgment of the original art from which it is derived.

[shanghaislim]

BINGO!!!!!!!!!!!!!

[Carnacamarna]

Thank you!!!

[human23]

Um. No.

There are countless creative works (paintings, music, theater — now and in the past) that do not attribute each source and influence. That's why issues of fair use (was it done for commercial gain, did it rob the original of its value, was it sufficiently transformed) are so germane.

I can't speak to all of Mr. Fairey's work, but this case is a slam dunk. The Associated Press is wrong.

[HighInfoVoter]

Hmm, so if instead of stroking one of the lines as solid color there were 3 point text giving attribution to the AP image embedded in the line, your attribution would be included. It might be illegible but discoverable and pointless.

[Smutty]

Maybe it would be pointless!? ...or maybe citation in images would have to maintain an aspect ratio in relation to the image?!

...or how would this work with a piece of sculpture made from copyrighted material too?!

Really unsure on this, but it poses some very interesting questions to ask & discuss???

[jbeach]

Baloney.

There is nothing in copyrights that require artists have to disclose references. Not even in collages.

AP wants money, period. And hopefully they won't get it, because that would shut the door on creative expression for all artists. It really would.

[kgb999]

You have made a fortune selling art images created by others; changing the colors, stripping the original artist's identity from the work they created, putting your corporate brand on it, and selling it as if it were your own. You aren't an artist, you are a thief.

[silva66]

You folks making this kind of argument are like Golam in Lord of Rings. Your work is your precious, not a gift to humanity meant to inspire and build out from the present moment, but rather a possession you use to pump up and maintain your own ego. You are not artists guided by creative muses, you are selfish children uninterested in sharing and letting go...

[HappyMarsden]

LOL! Sounds like you can't come up with any original artwork of your one either. My preciousssssss.....

[jbeach]

Whatever.

Artists have the right to work with other people's art, and create new works.

Maybe it's not your favorite art - but it doesn't have to be. That's what creative freedom is like.

[itolduso]

On another note, Mr. Fairey, please, please, please-NEVER claim that using another's work without permission is o.k. because you made his work more famous. That is not a defense for copyright infringement. It is not a judgement that you can make- whether or not you did Mr. Garcia a 'favor' is something only he can determine. Even the most captivating image, like many other things- can quickly lose all value when the market is flooded with it. And sometimes an artist's ability to license any of their work in the future is negatively impacted by one works association with certain causes- 'fame' is not always a good thing. Many professional artists develope a very strong following of clients that is dependent on a level of exclusivity - giving away their work to everyone & anyone, & selling it cheaply can destroy relationships that took decades to build.

[itolduso]

Many authors will use snippets of other authors work.... a few lines of poetry, lyrics from a song, a short paragraph from another book.... this is considered 'fair use' in most cases, and is generaly dependant on how much of the work is used in relation to the authors own, newer work, and it still requires attribution (the work should always be credited to the original author-failure to give credit can cause great harm to the copyright holder). It's a little trickier with images- even though the part of the photo you copied was not 'physically' large in proportion the the whole, it could be argued that it was the focal point or 'heart' of the photo- the tilt of the head, the look in the eye- anyone looking is drawn to that face of Obama (remarkable that George Clooney could be rendered almost invisable) and yours is almost a direct copy- would a jury rule that the 'similarity' is high enough to call it a 'derivative' rather than a simple 'reference' as you claim? It's a tough call.

[Smutty]

Thank you for this compelling & RATIONAL opinion. I too am really trying to look at this objectively within the terms of 'fair use'. I am a fan of Shepard Fairey's appropriated work, however I too believe that citation is needed...now how does the artist go about doing so? This to me is the real question that should be answered.

Hip-hop artists who use samples get or pay for permission to use such samples and often cite it within an album's liner notes...not sure how this works with digital mediums (ID3 tags?).

...but those who are bashing Shepard for his art are misguided. Just because you don't like it or feel you could do the same with photoshop...fact is YOU didn't; Fairey the ARTIST did!

It reminds me of the arguments around 'Voice of Fire' and the question by some as to whether it was art...

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

...which of course it is! Barnett Newman had the inspiration to paint it, no one else did.

[Blurp]

He significantly changed the original photo into a new piece of illustrated art. This is not infringement. AP doesn't stand a chance.

[kgb999]

He failed to attribute the original source of the image. The original photographer who composed the the visual essence of Fairey's "art" would be unknown, with this guy claiming full credit for his work, if the AP hadn't stepped up.

Taking someone else's work with attribution is totally lame.

http://www.art-for-a-change.com/Obey/index.htm

Look at his work ... he s.t.e als everything he does.

[kgb999]

er ... that is to say: Stealing someone's work WITHOUT attribution is totally lame.

[mlaiuppa]

It's art, not a master's thesis.

He doesn't need to list citations.

[Blurp]

Obama's own face created the "visual essence."

[monomatica]

I went to Syracuse University to study illustration and design around the same time that Shepard Fairey went to RISD. We were the generation that went to art school right before the computer and internet came out. I was also taught to use reference. When we were given illustration assignments, I would go to the library and take a pile of reference images out of the photo reference library. Without those images, I wouldn't have been able to replicate a famous person, historical figure, cultural imagery, etc. I never copied the reference exactly, but used it only to get a likeness right. After I graduated and was doing illustration full time, I started my own filing cabinet full of magazine clippings and photos neatly filed according to subject. Along with this technique, we were also taught to set up models to photograph and use as original reference to get a pose or scene just right. Commercial Art has always been about putting imagery together to depict a story, person, product, service or place in your personal artistic style so that it looks like something new.

Shepard, I am a huge fan of your work and I hope you win. Thank you for bringing this to everyone's attention. The AP clearly has no case and could cause irrevocable damage to illustrators, designers and artists every where.

[Blurp]

here here