Tone Deaf Chronicles: AP Knocks Shepard Fairey

Add another one to the annals of recent countercultural moments: Yesterday the Associated Press accused Shepard Fairey--the street artist who designed the most iconic user generated art to come out of the 2008 election--of copyright infringement. The creator of the "Hope" poster--that now sits regally in the National Portrait Gallery--has come under fire by the news organization for using its 2006 Obama photo as the canvas for the art-ified image, without buying rights to it.

I'm all for creators getting their cut (I am a journalist after all). And yes, Fairey probably should have been fair, and purchased the rights upfront. However, the fight the AP is now picking with Fairey is PR suicide: It makes the media organization look petty, superficial, and practically un-American (I mean, when was the last time we've had art rise to the top of culture as poetically as this?). Not to mention, the photo itself was nothing more than raw material without Fairey's vision to elevate it to something more. Now that the piece has catapulted Fairey to celeb status, and the image has been reincarnated into hundreds of thousands of posters (some clocking in at over $500) and stickers, AP just looks like it wants to piggyback on cashing in.

Fairey's no dummy. He's hired Anothony Falzone, a lawyer and executive director of the Fair Use Project at Stanford University. Falzone is also the heir apparent to Lawrence Lessig, the famed Stanford copyright law professor and founder of Creative Commons, the movement that encourages creators to modify copyright terms in order to "increase the amount of creativity (cultural, educational, and scientific content) in “the commons”—the body of work that is available to the public for free and legal sharing, use, repurposing, and remixing." It actually encourages building on someone else's creative work.

All of this reminds me of when the record labels went on a suing rampage against Napster users. Yet another example of huge organizations exercising bully power while exhibiting their total tone deafness to culture. We're well aware that news orgs are getting killed financially right now--but is this really the best way the AP can scrounge up a new revenue stream?

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5 Comments

  • John Pelphrey

    Yes, the interpretation of copyright infringement is up the courts. That is why we have a court system - to interpret the law, and thank goodness we have such a system instead of leaving it to the whims of the uneducated. To assume this is stealing without hearing both arguements is to diminish any work of art or science where the author, creator, or scientist has used another person's work to influence or build their own. Without fair use, we wouldn't have many of the technologies, scientific benefits, or art we enjoy today. By simply saying that the use of an image as the starting place of a work of art is "stealing" without regard to the artists own additions, interpretations, or motives would be handcuffing all creative and scientific fields. The purpose of our copyright law is to both protect that original author and to provide a means for progress. Both sides are equally important. And you are incorrect in your statement that there is nothing in the copyright law that states a work can be altered enough for it to be considered a new work. Please refer to the following:
    Copyright Act of 1976 in § 107 as follows:
    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

  • Bill Hood

    Ahh... therein lies the rub. A judge hears the case and makes a decision on how he personally interprets the law. Isn't this what got Mr. Fairey in trouble in the first place - interpreting the copyright law to his own benefit? The words used to define the law are often misinterpreted, but it doesn't change the letter of the law - stealing is just plain wrong. There is nothing in the law that states that a work can be altered substantially enough for it to be considered a new work. This is pretty much urban legend. But, let's not quibble on words, sir! - Bill Hood

  • Bill Hood

    Ahh... therein lies the rub. A judge hears the case and makes a decision on how he personally interprets the law. Isn't this what got Mr. Fairey in trouble in the first place - interpreting the copyright law to his own benefit? The words used to define the law are often misinterpreted, but it doesn't change the letter of the law - stealing is just plain wrong. But, let's not quibble on words, sir! - Bill Hood

  • John Pelphrey

    First, whether Mr. Fairey is guilty of defacing public or private property has no bearing on the copyright infringement case.
    The real issue is whether Mr. Fairey altered the original photo substantially enough for it to be considered a new work. The courts have sided on both sides in the past. Even Jeff Koons has lost one case and won another over the fair use of a copyright, and the transformative nature of his new works. It's really going to boil down to who has the best argument and which judge hears the case. These issues are often not as cut and dry as "it looks the same so it must be infringement."

  • Bill Hood

    You may call yourself a journalist, but you give the rest of us a bad name when you purport that Fairey is above the law. The law is quite clear on this - AP must move to protect its copyright or lose it forever. If Fairey or you want to change the law, then hire a lawyer and go about it the legal way.

    Plastering millions of illegal posters over the years, both himself and encouraging others to do so on his behalf to catapult him to fame is not only illegal it costs the taxpayers and small businesses millions of dollars to clean up and protect their property.

    Personally, I like Fairey's work. I do not agree, however, that he has the right to steal and destroy others property to gain his fame.

    He is just another example of the youth of America (U.S. and Mexico) not respecting others and breaking the law at every turn.

    -Bill Hood