Annals of overlooked photo permissions

Uh-oh: it appears the most famous American political artwork to come along in decades, Shepard Fairey’s Obama poster, was made without notice to or permission from the photographer who snapped the original image on which it was based. (Prawfsblawg, A Photo Editor).


  • Two words (three?): Rogers v. Koons

  • Why is Rogers v. Koons relevant? That was about parody. This isn’t a parody of the original photograph but more an abstraction of it.

  • Have you read the SuperTouch critique of Mark Vallen’s critique of Shepard Fairey? You might be interesting in Brian Sherwin’s response to it. It sums up how Shepard Fairey and Jaime O Shea are both ignorant of fair use.

  • This is how I see it. 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.