Picasso: The value of a name?

Apparently there has been a lengthy battle over Picasso’s name in the UK. It started when Manders Paints, owned by Dougie Urquhart, decided to introduce a line of paints called Picasso Tint to Taste. The estate of Pablo Picasso quickly took legal action in order to prevent Manders Paint from using the family name on their products. The verdict is in-- Picasso lost.

The case has been described as a landmark ruling due to the fact that only Dougie Urquhart’s company, Manders Paints, can use the name Picasso as a brand name for UK based painting products. Needless to say, the Intellectual Property Office (IPO) has sided with Manders Paints on the issue. However, the Picasso estate has appealed in the past-- so it is likely that they will continue to fight for their namesake.

The Picasso estate argued that the use of the name ‘Picasso’ without their consent amounted to exploitation by Dougie Urquhart and his company. In other words, they feel that the only reason Urquhart desires to use the name is due to the commercial value it has for his specific market-- products for painters. That said, Urquhart’s legal team pointed out that names of other famous painters, such as Renoir and Matisse, have been registered as trademarks with or without the consent of those respected families.

The Picasso estate is known for adamantly defending Pablo Picasso’s name and art. In fact, the movie Surviving Picasso (1996 Merchant Ivory Productions) experienced the wrath of the Picasso family during production. The producers were unable to obtain permission to feature replicas of Picasso’s art on the set. From what I’ve read the only painting in Surviving Picasso that is based on an authentic Picasso painting is the scene where Picasso, played by Anthony Hopkins, creates a section of Guernica-- though the scene is filmed in a way as to make the image only slightly visible.

This case involving Manders Paints and the Picasso estate begs the question-- what is the value of a name? I suspect that eventually we will see other art products named after artists. Perhaps in the future one will be able to purchase Hirst Black, Fairey Red, or Koons Blue. That said, is the last name of the artist as important as the visual legacy he or she leaves behind? Does commercial use of an artists name without his or her consent-- or estate consent-- harm the market for his or her art? What is the value of a name? Thoughts?

Link of Interest:

UK paint firm wins Picasso battle

http://news.bbc.co.uk/1/hi/england/northamptonshire/8015364.stm

Manders Paints

www.manderspaints.co.uk

Take care, Stay true,

Brian Sherwin

Senior Editor

myartspace.com

www.myartspace.com

Myartspace Blog on Twitter

www.twitter.com/myartspace_blog

If Shepard Fairey can do it...

Shepard Fairey and his legal team have once again responded to the Associated Press. This time artist Shepard Fairey and his lawyer, Anthony Falzone of the Fair Use Project, suggest that the AP is hypocritical concerning their stance on copyright and the defense of “fair use”.

In a nut shell-- Fairey and Falzone have offered different examples of AP photographs of artwork-- from exhibit coverage and history in the making-- that were taken without “permission” -- all of which were taken for the purpose of reporting and newsgathering. Concerning the use of images without permission or licensing Fairey has boldly stated, “If the AP has the right to do what it’s done, then so do I.”.

Fairey and Falzone also suggest that the AP has listed the images for sale on The AP's image licensing database as a commercial product for "professional photo buyers.". However, sources have told me that the “professional photo buyers” are other news agencies and museums who desire to document the historic significance of the photographs. The AP also offers images for personal use-- such as a photograph of a historic event to hang in your home. However, I was not able to find any of the mentioned photographs listed for personal use.

Note: One thing I noticed about Shepard Fairey and Anthony Falzone’s statement is that they conveniently left out some key details about the photographs the AP offer for sale. Thus, I invite you to look at what the AP says about the images they offer for sale :

“AP Images is a source of images for professional photo buyers. However, you can purchase open edition reprints of AP photos for home or personal use through our partner Pictopia. Using state-of-the-art laser enlargers to produce museum-grade photographs and special archival materials in production and framing, Pictopia creates images that will last a lifetime. Images purchased for personal use may not be used commercially (in publications, brochures, advertisements, copies to sell, etc.) or reproduced for any use.”

Shepard Fairey’s recent statement can be found on his Obeygiant website as well as his blog on The Huffing Post . Know in advance that the Huffington Post moderator will most likely not accept a comment if the comment sides with the AP on this case or points out specific contradictions involving Shepard Fairey & Obey Giant Art Inc. concerning “fair use“.

Note: Keep in mind that Shepard Fairey is known for sending cease-and-desist letters to artists who comment on or parody his widely known artwork. In other words, you probably won’t find Baxter Orr or the creator of Steelerbaby mentioned in the comment section of The Huffington Post article titled, 'If the AP Has the Right to Do What It’s Done, Then So Do I'. Why? Because Shepard Fairey is not the champion of “fair use“ that he portrays himself to be.

Allow me to expose some of the contradictions of Shepard Fairey’s recent statement. Fairey declares, “As I have stated before I am fighting the AP to protect the rights of all artists…”-- if that were true-- if Shepard Fairey felt so strongly about the rights of fellow artists-- wouldn’t he respect the exclusive rights that artists have under copyright? Or the exclusive rights that the estates of deceased artists, such as the Rene Mederos estate , have under copyright?

Rene Mederos’s work was still protected under copyright when Fairey decided to use one of his images for a shirt design without permission, credit, or compensation. His reason-- after being exposed for infringement I might add-- for not contacting the copyright owner can be found in an interview Shepard Fairey had with Mother Jones-- "Well, how would I ever pay this guy anyway because he's in Cuba?" . Obviously the estate of Rene Mederos had no problem contacting Shepard Fairey. The shirt design was pulled from production and distribution.

Fairey goes on to suggest that he would like everyone to have the same “broad rights of fair use and free expression“ that the media, such as the AP, has. What Fairey fails to understand is that the defense of “fair use” favors newsgathering sources. That said, I’m sure that Fairey and his company, Obey Giant Art Inc., would love to have the same extended interpretation of “fair use” for his commercial interest. One could suggest that Shepard Fairey needs an extended interpretation of "fair use" to dominate in order to have continued success. Does he really want that though? Perhaps members of the Fair Use Project are whispering in his ear?

If Shepard Fairey's statement were honest-- which it is not if you go by his past actions-- why did he send cease-and-desist letters to Baxter Orr and Steelerbaby ? Why did Fairey call Orr a “parasite”, “mimic”, and “profiteer” for claiming the defense of “fair use” after Orr made a social comment and parody of Fairey‘s widely known ObeyGiant image? Why did Obey Giant Art Inc. representative Olivia Perches state "Anything with 'Obey' on it they can't have." in response to Larkin Werner’s Steelerbaby store on Cafepress-- implying that only Shepard Fairey can use the word ‘obey' in a work of art or design? Fairey's words and actions don't mesh. Could it be that Shepard Fairey is obeying the advice of his peers?

Note: Shepard Fairey's Obey Giant Art Inc. forced Cafepress.com to remove the Steelerbaby merchandise due to the fact that it involved the word ‘obey’ and the phrase ‘Obey Steelerbaby’. However, Fairey apparently lifted the cease-and-desist order after bloggers and the media picked up on the story.

Fairey goes on to suggest that the AP can’t “have it both ways”-- in other words, Fairey suggests that the AP should not be able to photograph artwork and art exhibits while at the same time defending their photographs when artists use them as he did with his Obama posters. Fairey fails to grasp the fact that under current law media sources, such as the AP, can take said photographs. Fairey also fails to mention that, unlike him concerning aspects of his artwork, the AP gives credit to artists when they photograph artwork and art exhibits. The point-- Fairey needs to realize that people don’t necessarily change laws by breaking them or by making a mockery of current law.

There is a need to keep things in perspective-- Shepard Fairey is not some wide eyed teen-- he is a man inching ever-closer to 40 years of age who obviously knows how to use the law in his favor when individuals infringe upon his artwork. If his current position on “fair use” is honest he could have went about it differently prior to infringing on the copyright of the AP. I don’t think current copyright law will be changed when individuals, such as Shepard Fairey, prove that “fair use” should be limited in order to protect the rights of copyright owners.

That said, if Shepard Fairey and Anthony Falzone of the Fair Use Project desire to extend the interpretation of “fair use” to the point that copyright can be bypassed for all purposes they will find that the majority of the art community-- which they are obviously trying to gain support from-- will not support them. After all, one does not have to look back too far in order to see how artists come together in support of strong copyright.

I assume that Fairey does not remember the number of artists and art organizations that stood against the orphan works legislation in 2008-- which, if passed, would have made it harder for artists, photographers, and other creatives to defend the rights to their work in court. The legislation would have benefited copyright infringers-- which is why so many artists raised their voice against it.

Note: If the 2008 orphan works legislation had passed it would have removed some of the court awarded damages that discourage copyright infringers in the first place. It should be mentioned that Brad Holland , a notable illustrator, was one of the leading figures in the fight against the 2008 orphan works legislation.

As the saying goes, pick your battles. If the Associated Press loses to Shepard Fairey & Obey Giant Art Inc. it will set a legal precedent that will greatly harm artists who desire to uphold their copyright in court when individuals and companies, such as Obey Giant Art Inc., infringe upon their rights. If Shepard Fairey and his company, Obey Giant Art Inc., can do it other companies will have a better chance of doing it-- to fellow artists... to you.

A win for Shepard Fairey and his company, Obey Giant Art Inc., will be a loss for the art community-- it will be a loss for the majority of artists who enjoy the protection that copyright offers, a loss for art dealers who work very hard to establish a market for the artists they represent, and a loss to art collectors and other clients who desire-- and expect-- unique works of art.

Needless to say, I have responded to Shepard Fairey in the past and will continue to respond as long as he attempts to distract the public-- specifically the art community-- from what I assume are his true intentions. One should question the artist who says to “question everything” when the contradictions and hypocrisy of his words and actions are so apparent.

The fact that Shepard Fairey obviously feels that he can dupe the public-- specifically the art community-- is a sign of brutal arrogance in my opinion. He must be called out for it.

Note: A response from the AP-- Paul Colford, Director of Media Relations for The Associated Press, has released the following statement in response to Shepard Fairey and Anthony Falzone:

“The Associated Press is still in the process of reviewing Mr. Fairey's response to its Counterclaims, but it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP's copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities. Even more disappointing is the fact that Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used. We note that Mr. Fairey admits that he engaged in the hypocritical conduct discussed in the AP's Counterclaims, including using the work of others without obtaining a license while at the same time threatening others for using his own works.”

Take care, Stay true,

Brian Sherwin

Senior Editor

www.myartspace.com

Myartspace Blog on Twitter

www.twitter.com/myartspace_blog

Copyright Infringement: Richard Prince and Larry Gagosian respond to Patrick Cariou's lawsuit

Right: Collage by Richard Prince. Left: Photograph by Patrick Cariou

The issue of copyright infringement and “fair use” concerning visual art has been a hot topic as of late. For example, the mainstream media has devoted attention to the case involving Shepard Fairey and the Associated Press concerning Fairey’s infringement of an AP owned photograph taken by Mannie Garcia. However, there is another important copyright infringement case in the works that has received little press compared to the Fairey AP clash-- even though the outcome of the case is just as important to the art world and to copyright law as we know it. That situation involves photographer Patrick Cariou, Richard Prince, exhibit catalogue publisher Rizzoli, Gagosian Gallery, and art dealer Larry Gagosian.

For those who don’t know about the case-- Patrick Cariou, a photographer and author, filed a lawsuit against Richard Prince in December of last year after Richard Prince and Gagosian Gallery failed to acknowledge his cease-and-desist letter. Cariou’s lawsuit claims that photographs used by Prince for a series of collages were illegally borrowed from his book Yes Rasta-- which was registered in 2001.

Cariou claims that his photographs were illegally used in at least twenty Richard Prince collages exhibited by Gagosian Gallery in 2008. The collages, eight of which were sold, were priced between $1.5 million and $3 million each. Prince did not give the photographer credit or offer compensation-- and has since suggested that Cariou is a mediocre photographer.

As mentioned, Patrick Cariou did not stop with just Richard Prince-- the suit, which was filed in a U.S. federal court, also targets the Gagosian Gallery, the owner of the gallery Lawrence Gagosian, and the publisher of the exhibit catalogue, Rizzoli. Cariou’s suit claims that all parties were involved in the infringement. Thus, if the court rules in Cariou’s favor the precedent may play a role in the willingness of publishers, art galleries, and art dealers as far as working with artists who have a history of copyright infringement allegations.

In other words, if the court favors Patrick Cariou art dealers may think twice before exhibiting or promoting artists who have a history of copyright infringement allegations against them due to the potential financial burden that would occur if the infringer is exposed by a copyright owner. On that same note, publishers may refuse to create exhibit catalogues for artists who are known copyright infringers. Needless to say, a win for Cariou-- and for copyright-- could potentially change the ’landscape’ of the art world as well as the art market in general.

Richard Prince and Larry Gagosian have-- for the most part-- been silent about Patrick Cariou’s allegations-- until now. Gagosian’s lawyers have responded to Cariou’s lawsuit. The Gagosian legal team suggests that Prince’s use of Cariou’s photographs are protected under “fair use”. They suggest that the collages are acceptable due to the fact that Cariou’s photographs of Rastafarians in their native environments are “factually based”. Gagosian’s legal team goes on to suggest that the exhibition of the collages was not “commercially exploitative” and that the collages were created with a “genuine creative rationale” in good faith.

Richard Prince-- who is considered to be a pioneer of appropriation art and is often cited by copyright infringers-- has stated that Patrick Cariou’s photographs are not “strikingly original” or “distinctive in nature” and that his collages are “sanctioned under fair use”. Prince has also suggested that his use of Cariou’s photographs “poses no harm” to the value of Cariou’s work and that his use has instead increased the value of Cariou’s photographs. Prince also stated that his use of Cariou’s images reflect “established artistic practices”. However, Patrick Cariou and other supporters of copyright obviously have a different take on the situation.

Patrick Cariou has suggested that the unauthorized use of his photographs has harmed the integrity of his book Yes Rasta-- which involves photographs spanning a decade. Cariou has also suggested that Richard Prince would not have used 30 of his photographs if he were just a mediocre photograph. He feels that Richard Prince and Larry Gagosian are arrogant for suggesting that his photographs are not original or distinctive.

In the suit Patrick Cariou demands that the unsold artworks and exhibit catalogues be destroyed. Cariou also demands that the owners of the sold paintings be informed that it is illegal to display the work. This means that if the court sides with Cariou you will be hard pressed to find the Richard Prince collages involving Cariou’s work exhibited in a public collection-- or anywhere else for that matter. Needless to say, this case could be groundbreaking in that it will establish some order concerning how “fair use“ is interpreted-- either for or against it. The outcome of this case will drastically change the art world / art market.

While Shepard Fairey’s case against the Associated Press is a breeding ground for media buzz one could argue that the outcome of Patrick Cariou’s lawsuit against Richard Prince and Larry Gagosian is debatably more important for artists to observe-- especially artists who support copyright. It is true that if Shepard Fairey / Obey Giant Art Inc. wins against the AP it will set a legal precedent that will give companies-- like Obey Giant Art Inc.-- more pull when using copyrighted images for merchandise. However, the case involving Patrick Cariou and Richard Prince hits closer to home within the art world.

The case involving Cariou, Prince, and Gagosian will set a legal precedent that will effect the ability of artists to protect their copyright within the art world itself-- to protect their work from gallery represented artists and art dealers who-- debatably-- have more financial resources going into a case involving copyright infringement. Thus, emerging artists who support copyright should keep an eye on the outcome of Cariou’s lawsuit. I would go as far as to say that art dealers who support strong copyright should keep a watchful eye on the case as well.

Honestly, artists are not the only individuals harmed by weak copyright protection. Art collectors and art dealers can be harmed as well. Why invest in a work of art if it can be mass produced without restraint by any individual or company? The art market will be meaningless if we continue to stand back while copyright is chipped away to the point that artists are unable to uphold their copyright in court. Is my opinion extreme? Perhaps. However, there are enough examples of extreme interpretations of “fair use” to go around-- and people blindly accepting it-- to cause concern.

Links of Interest:

Fair Use in a Nutshell:A Roadmap to Copyright's Most Important Exception -- CopyLaw
www.copylaw.com/new_articles/fairuse.html

Richard Prince and Gagosian fight back over copyright -- The Art Newspaper
www.theartnewspaper.com/article.asp?id=17147

Patrick Cariou Versus Richard Prince -- Myartspace Blog
www.myartspace.com/blog/2009/01/patrick-cariou-versus-richard-prince.html

Photographer Patrick Cariou Sues Richard Prince for Copyright Infringement
www.pdnonline.com/pdn/content_display/photo-news/photojournalism/e3i4b1f65d43468689993c27258f9c4eaf0?imw=Y

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
Myartspace Blog on Twitter
www.twitter.com/myartspace_blog

Disobey Shepard Fairey

Larkin Werner's 'Obey Steelerbaby' next to a poster by Shepard Fairey.

Last month Shepard Fairey was interviewed by Terry Gross for NPR. The world renowned artist discussed his pre-emptive lawsuit against the Associated Press due to the media giants copyright infringement allegations concerning his Obama posters-- Fairey had used an AP owned photograph by Mannie Garcia as the base image for his posters. Fairey is represented by Stanford Law School's Fair Use Project (FUP)-- an organization that claims to support an extension of the boundaries of "fair use" in order to “enhance creative freedom“. However, it appears that Shepard Fairey does not agree with FUP 100%-- at least when his work is used by others under "fair use".

Based on Shepard Fairey's recent statements you would think that he would fully support artists using his widely known images under "fair use". After all, in the NPR interview Fairey suggested that his lawsuit against the Associated Press is important because he views it as standing up for the rights of artists who create art that is protected under "fair use". However, Shepard Fairey has a history of threatening artists with legal action when they utilize his famous artwork under "fair use"-- even if the artist did not willfully infringe. The most recent situation involves graphic designer Larkin Werner and his Cafepress store.

Early last month-- before the NPR interview-- Shepard Fairey’s Obey Giant Art Inc. sent www.cafepress.com a cease-and-desist letter concerning a Cafepress store titled Steelerbaby-- Larkin Werner‘s account. Obey Giant Art Inc. took action due to the fact that Werner had been selling a version of his ’Steelerbaby’ doll that involved the word ‘obey’. Shepard Fairey feels that the merchandise involving the word "Obey" is an infringement on his trademark. However, Werner claims that his use of ‘obey’ was not inspired by Shepard Fairey. In fact, Werner has suggested that “Obey Steelerbaby’ is one of several catch phrases spoken by the doll at, www.steelerbaby.com. The obey phrase is popular among fans of Steelerbaby.

Obey Giant Art Inc. took issue with Werner due to the fact that the graphic artist had designed merchandise based on the popularity of Steelerbaby’s "Obey Steelerbaby" catch phrase. The merchandise, which was sold on Cafepress, involved pictures of the Steelerbaby doll standing between the words “Obey” and “Steelerbaby” while others featured the word “Obey” above the doll. According to the Pittsburgh City Paper, Werner-- who is based in Pittsburgh-- had earned around $70 from selling “Obey Steelerbaby” merchandise on Cafepress. That said, Shepard Fairey’s representatives feel that Werner’s “Obey Steelerbaby” merchandise is a direct threat to Shepard Fairey’s trademark and business.

According to the Pittsburgh City Paper, Olivia Perches-- the representative of Shepard Fairey who sent the cease-and-desist letter to Cafepress-- has suggested that Obey Giant Art Inc. owns the use of ‘Obey’ and that artists can’t use the word ‘Obey’ in their artwork or designs. Chris Broders, a business partner involved with Fairey’s Obey clothing line, has suggested that the use of “Obey” becomes an issue when artists or other individuals profit from the “‘Obey’ mark”. He went on to suggest that Fairey’s representatives and business partners will do what they can in order to “protect" their "trademark". Needless to say, Larkin Werner feels that Shepard Fairey is being a hypocrite due to the fact that Fairey has established a career from creating images under "fair use" of copyright and trademark law.
A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr put a SARs protective mask over the famous Obey Giant image and titled it ‘Protect’. Fair Use? You be the judge.

This is not the first time that Shepard Fairey has attacked "fair use". In 2008 there was a story concerning “fair use” and Shepard Fairey in The Austin Chronicle. The situation involved the famous Shepard Fairey and emerging artist Baxter Orr. Orr created a parody of the iconic Obey Giant image-- which he distributed and sold. Orr-- being cynical of Shepard Fairey -- strived to make a visual statement about Fairey’s art and practice in general. One could say that Orr’s appropriation of the Obey Giant image was in itself a statement on Fairey’s practice of appropriating from other artists.

Viewers of the work recognized that Orr had made a visual statement about Shepard Fairey and the Obey Giant image. There was no confusion as to who made what. Thus, it did not take long for Orr’s image to be picked up by art bloggers-- which stirred debate concerning Fairey’s artwork, the copyright infringement allegations that have shadowed Fairey’s career, and Fairey’s own history of appropriation.

Eventually Orr received a cease-and-desist letter from Obey Giant Art Inc. However, Orr continues to sell his parody, now titled ‘Protect Yourself -- Giant’, for $25.00 on his website, www.baxterorr.bigcartel.com. Oddly enough, some artists have started to parody the situation between Baxter Orr and Shepard Fairey:
A parody of the Orr, Fairey, and Associated Press disputes by Dan Nolan.

I find it odd that Shepard Fairey suggested on NPR that he is fighting for the rights of all artists concerning “fair use” when earlier that month he had sent a cease-and-desist letter to Larkin Werner. After all, supporters of Shepard Fairey have suggested that the Associated Press has “bullied” Fairey-- some have went as far as to suggest that the AP has attacked "fair use". You would think these strong supporters of "fair use" would call Shepard Fairey out just as they have called the AP out concerning "fair use". Right?

One must ask-- where was Lawrence Lessig, Anthony Falzone, the Fair Use Project, and other supporters of extreme interpretations of "fair use" when Shepard Fairey 'bullied' Baxter Orr and Larkin Werner concerning issues involving “fair use”? Is Shepard Fairey truly fighting the good fight for “fair use” or is he, as the Phantom Street Artist suggested, fighting for “Fairey use”?

The contradictions involving Shepard Fairey are widespread. Unfortunately, the major media has barely reported on this aspect of Shepard Fairey and "fair use". Instead, most have conveniently championed Fairey as an advocate for “fair use”-- which is obviously false. If anything, Shepard Fairey is a champion for his own work involving "fair use".

In closing, I think Shepard Fairey needs to realize that artists can, and will, use trademark protected images under “trademark fair use” within the context of their own work. I’m not against “fair use”-- though I do think it should be limited. That said, if Shepard Fairey is allowed to extend the boundaries of “fair use” I think he needs to realize that he is opening the doors for his own work to be exploited by legal gray areas. My guess is that artists and other creative individuals will continue to disobey Shepard Fairey's copyright and trademark-- especially if he wins his case against the Associated Press. Be careful which doors you open Mr. Fairey-- they may lead back to you.

UPDATE: It appears that Shepard Fairey has dropped his cease-and-desist against Cafepress and Larkin Werner's Steelerbaby store. My sources tell me it was dropped on March 10th-- just days after this post. There are three rumors floating around as to why the cease-and-desist was dropped:

1.) Shepard Fairey did not want the negative press going into his case against the Associated Press-- kind of hard to be a champion of "fair use" when you oppose it, true?

2.) Lawrence Lessig, Anthony Falzone, and the Fair Use Project did not want negative press concerning contradictions of "fair use" in regards to their client-- Shepard Fairey. After all, the Fair Use Project supports an extended interpretation of "fair use" in general. It would not look good if their client flip-flops on his opinion of "fair use".

3.) Shepard Fairey did not want negative press-- period. It seems the press honeymoon is over. Recently Shepard Fairey has been ripped apart by the press-- a far cry from the constant praise he received for months due to his work for the Obama campaign.

Werner's 'Obey Steelerbaby' items have returned to Cafepress, www.cafepress.com/steelerbaby

Links of Interest:
Steelerbaby Blues by Chris Young -- Pittsburgh City Paper
www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932

Fair Use: Shepard Fairey and Baxter Orr by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Birds of a Feather Flock Together: Damien Hirst & Shepard Fairey / Cartrain & Baxter Orr by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/02/birds-of-feather-flock-together-damien.html

Artist Cage Match: Fairey vs. Orr by Richard Whittaker -- The Austin Chronicle
www.austinchronicle.com/gyrobase/Issue/story?oid=oid:625022

Integrity Lost: Lawrence Lessig helps Shepard Fairey by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/02/integrity-lost-lawrence-lessig-helps.html

The Phantom Street Artist speaks out against Shepard Fairey in Citizen LA by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/03/phantom-street-artist-speaks-out.html

Take care, Stay true,

Brian Sherwin
Senior Editor
Myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com

Integrity Lost: Lawrence Lessig helps Shepard Fairey

A comparison showing Mannie Garcia’s AP photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters.

I noticed something of interest on the Lessig website recently-- be prepared for a rant. Before I get started I feel that I should include some background information about Lessig and some of the organizations he has worked with: Lawrence Lessig is a Professor of Law at Stanford Law School. Lessig is the founder of the school's Center for Internet and Society. Lessig is currently supporting Shepard Fairey's case against the Associated Press.

In fact, The Stanford Center for Internet and Society's Fair Use Project (FUP), under the guidance of Executive Director Anthony Falzone, is currently representing Shepard Fairey in his case against the Associated Press. The case stems from the copyright allegations the AP made against Shepard Fairey concerning his use of an Obama photograph that the AP claims ownership of. Needless to say, the lawsuit has spurred debate about copyright law and the rights of artists-- it has spread like wildfire on blogs and art forums.

For those who don't know, the Fair Use Project provides legal support to cases of this nature in order to “clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom.”. Shepard Fairey hopes to “vindicate his rights, and disprove the AP's accusations“ with the help of the Fair Use Project. Thus, both Lessig and Falzone desire to see Shepard Fairey win his case against the Associated Press in order to strengthen their interpretation of “fair use”-- an interpretation that places the rights of visual artists at risk according to artist rights advocates.

It should be noted that Professor Lessig has served on the board of Public Knowledge . Public Knowledge (PK) is a public interest group based in Washington DC. PK’s mission is to defend “citizens' rights in the emerging digital culture.”. The group has been very active in fighting against legislation that strengthens copyright protection for musicians and visual artists. The organization claims that they are upholding the rights of consumers by opposing legislation that would limit or prevent fair use.

Public Knowledge strongly supported the 2008 orphan works legislation-- legislation that was opposed by Brad Holland , co-founder of The Illustrators Partnership of America (IPA). The IPA and over 60 other art organizations were outraged because the legislation would have greatly reduced the ability of a living artist to defend his or her art against copyright infringers. In fact, exclusive rights would have been destroyed if the legislation had passed according to Brad Holland. Holland and his supporters firmly stand on their position that the legislation would have stripped artists of many of the rights they enjoy under current copyright law had it passed.

Now to the task at hand. On February 6th Professor Lawrence Lessig posted an entry titled ‘Shepard Fairey's AP troubles’ on the Lessig.org website. The message stated, “A bunch of you have forwarded to me the story about the AP threatening Shepard Fairey for copyright infringement. The Stanford Center's Fair Use Project is representing Fairey, so I'm a bit constrained about what I can say just now. More when there can be more.”. It is not uncommon for a legal eagle to remain hush, hush until more information is available. However, on February 17th Professor Lessig posted the following message on Twitter, he said, “We could use help on the Shepard Fairey/AP case.”. Needless to say, I decided to click on the link.

Upon clicking on the link I was taken to Professor Lessig’s website and an article titled, ‘Crowd-sourcing a “fair use” case’ . The entry stated, “As mentioned, the Fair Use Project at Stanford's CIS is representing Shepard Fairey in his suit against the AP. To that end, we'd be grateful for some net-based knowledge. How many photos are there "like" the beautiful photograph that Mannie Garcia took?” At the top of the article there is a comparison image that shows two photographs of Obama with Shepard Fairy’s ‘Hope’ in the middle.
From the Lessig website. The photograph on the left was taken by Mannie Garcia and the photograph on the right was taken by Steve Jurvetson. Lessig stresses that Jurvetson’s Obama photograph is a CC licensed photo.

The article by Lessig appears to suggest that the Fair Use Project plans to question if Shepard Fairey had used Mannie Garcia’s AP photograph or not-- or they plan to devalue Mannie Garcia's photograph by comparing it to similar photographs. Why else would Lessig be asking readers to send in similar examples? However, if that is the case the Fair Use Project will surely run into some snags in court. After all, Mannie Garcia states on his website that the owner of Danziger Projects, a gallery that represents Shepard Fairey in New York City, contacted him on January 21st 2009 in order to inform him that his photograph of Obama was the basis of Shepard Fairy’s ‘Hope’ and ’Progress’ posters. On top of that, Shepard Fairey has long suggested that the photograph attracted him because of the power it conveyed. Shepard Fairey chose Mannie Garcia's photograph out of hundreds, if not thousands, of Obama photographs online. Thus, one can assume that for Fairey this specific photograph had a lot of meaning.

On the same page Mannie Garcia states, “In a telephone conversation on the 17th of February, Shepard Fairey acknowledged that my photograph was used and that credit should have been given as such.”. It should be noted that the telephone conversation between Mannie Garcia and Shepard Fairey took place on the same day that Professor Lessig posted ‘Crowd-sourcing a “fair use” case’ on his website. This begs the question-- why would Professor Lessig suggest that Shepard Fairey did not use Mannie Garcia’s photograph or attempt to devalue the importance of Garcia's photograph within the context of the Obama posters knowing that Shepard Fairey had acknowledged the use of the photograph to Garcia earlier that day? Perhaps he was not aware of the conversation between Garcia and Fairey? Either way, the Fair Use Project is going to have a tough time suggesting otherwise.

Professor Lessig’s entry titled, ‘Crowd-sourcing a “fair use” case’ appears to be an act of desperation in my opinion. After all, Lessig calls for readers to send Obama photographs similar to Mannie Garcia’s photograph to shep_use @ pobox.com. Again, this suggests that the Fair Use Project may try to project the idea that Shepard Fairey used a different image all together and that the owner of the base image may never be known-- or is an attempt to devalue Mannie Garcia's photograph by suggesting that it is nothing special or not copyrightable. Either way Fairey has admitted that he used Mannie Garcia’s Obama photograph and has suggested that he chose the image because of the power it conveyed. Could it be that the individuals representing Shepard Fairey are grasping at straw?

On a side note the email address strikes me as amusing-- Shep_use? ‘Shep use’ might be the correct usage for this case because Shepard Fairey’s “fair use” of the Obama photograph was anything but fair in my opinion. It reminds one that Fairey has been exposed for copyright infringement in the past-- such as the case of Rene Mederos . In that situation Shepard Fairey settled out of court with the Mederos estate after being exposed for having used a Mederos poster for a shirt titled ‘Cuban Rider’. Perhaps Lessig and the Fair Use Project is not aware of that?

Untitled Silk-screen poster - Rene Mederos, Cuba, 1972. This double portrait by one of Cuba’s most famous poster artists depicts the revolutionaries Che Guevara and Camilo Cienfuegos as seen on the Art for a Change article. A must read!

In that situation Fairey had printed a copy of the poster from a book about revolutionary art-- the author of the book, a friend of the Mederos family, recognized the image upon viewing Shepard Fairey’s shirt design. Shepard Fairey later claimed-- in an interview with Mother Jones -- that he did not know how to contact Rene Mederos for payment-- he was obviously unaware that Mederos had passed in 1996. A simple internet search would have enlightened Fairey. Fairey stated in the Mother Jones interview, "Well, how would I ever pay this guy anyway because he's in Cuba?". (It just goes to show how much the orphan works legislation would have failed had it passed.)

From Art for a Change-- Screenshot taken from the "Bombing Science" website 7/18/2007, where the Fairey rip-off of the Mederos poster had been sold as a T-shirt.

One interesting aspect of this situation is that Danziger Projects-- the gallery that informed Mannie Garcia that Shepard Fairey had used his photograph of Obama-- has since sold limited prints of Mannie Garcia’s photograph with profit going to Garcia. Anthony Falzone-- the Executive Director of the Fair Use Project who is representing Shepard Fairey directly-- has suggested that the limited edition prints of Garcia’s photograph is proof that the Obama photograph has increased in value. The only problem with this is that the Associated Press claims to own the copyright to the photograph. It also seems just a bit staged in my opinion-- almost as if individuals who are close to the case are trying to create something out of nothing in order to support Shepard Fairey. Hopefully the judge and jury will see past this obvious ploy.

In my opinion Lawrence Lessig and Anthony Falzone should have their integrity questioned. I base my opinion on prior cases they have supported and the contradictions and hypocrisy I observe in their support of Shepard Fairey. For example, in 2008 the Fair Use Project represented the Council on American-Islamic Relations (CAIR) in a case against radio host Michael Savage of the Savage Nation. Savage's character and interpretation of freedom of speech was questioned. I question why the Fair Use Project has failed to place Shepard Fairey under the same critical scope that Savage was placed under. After all, both Shepard Fairey and Michael Savage have tried to stomp on the rights of others-- both have taken action that goes against the mission of the Fair Use Project.

That case involved Savage’s claims that CAIR had infringed on his copyright by posting excerpts of his program on the CAIR website. I think Anthony Falzone’s case was warranted in that situation. However, in a Fair Use Project write-up about the case Falzone suggests that Michael Savage lacks integrity for having tried to block freedom of speech since he makes his living from said freedom. Falzone stated:

“The right to speak and the right to criticize speech you don't like are equally important. You'd think that Savage of all people, who depends on free speech to do what he does for a living, would understand that.”. In the article Falzone goes on to say, “If fair use protects anything, it protects the right to use portions of a copyrighted work to criticize it, so Savage lost his case quickly and decisively.”

Obviously Falzone does not feel that way about his current client. After all, Shepard Fairey has opposed creative freedoms in the past. That is why I have a problem with Anthony Falzone’s opinion in regards to the Fair Use Project supporting Shepard Fairey’s claim of “fair use” concerning the Obama photograph. After all, Shepard Fairey has revealed in the past that he is not a strong supporter of “fair use” in the first place-- if it involves an artist making a profit off of legitimate parodies of his art.

A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr put a SARs protective mask over the famous Obey Giant image and titled it ‘Protect’. Fair Use? You be the judge.

In 2008 Shepard Fairey sent a cease-and-desist letter to artist Baxter Orr after finding out that Orr had made a parody of his Obey Giant image. Having viewed Orr’s parody I would say that it is “fair use” under both copyright and trademark law since by that time the Obey Giant image was known worldwide. There was no confusion about who created what-- people knew upon viewing Orr’s image that it was a parody and they knew who and what the image was commenting on. Let us not forget that Shepard Fairey has made a living off of creating parodies of copyrighted images and trademarks. However, that did not stop Fairey from claiming that Orr's image was not "fair use". Kind of reminds one of the views of Michael Savage concerning CAIR, does it not?

Baxter Orr’s image, titled ‘Protect’, criticized Shepard Fairey’s art as well as his status as a street artist. The image was quickly picked up by bloggers-- which resulted in further criticism of Shepard Fairey’s practice of “referencing” and status concerning the commercialization of street art. It was a prime example of why we have "fair use" in the first place. Apparently that did not sit well with Shepard Fairey. Fairey, as reported by the Austin Chronicle , called Orr a “mimic” and “parasite”. He did not agree that Orr’s image was “fair use”. He went as far as to suggest that it was damaging to the business aspect of his art. I would think that the Fair Use Project would have seen that as a call to arms.

The fact remains that Shepard Fairey tried to stomp out freedom just as Michael Savage had tried. With that in mind, shouldn’t Anthony Falzone and the Fair Use Project be critical of their client? Why did they extend him a helping hand in the first place concerning his past attack against "fair use"? Did they not know? If they did know I would think they would question Shepard Fairey’s integrity as they had suggested the integrity of Michael Savage be questioned. Perhaps they are just selective as far as their mission is concerned. Regardless, there is room to question the ethics and integrity of the Fair Use Project.

The key point can be found in Fairey’s reply on the Austin Chronicle. In the article Fairey states, “I have to deal with the bad end of it(copyright) sometimes. I’ve had to pay out.”-- he went on to say that the difference between him and Baxter Orr is that he will stop using an image once the copyright owner comes forward. In hindsight this opens a few questions-- why did Shepard Fairey not stick to his word concerning the Obama photograph and the Associated Press? Why did the Fair Use Project fail to give support to Baxter Orr when a famous artist trampled on “fair use“? Why is Anthony Falzone and Lawrence Lessig defending someone who trampled on "fair use" just over a year ago? The contradictions and hypocrisy is alarming. Where is the integrity?

Back to the Lessig article-- Professor Lessig’s entry closes with the following words, “please send any favorite examples of photos used as visual references for other works of art. We lawyers don't know much, but we can learn pretty quickly. Thanks for any help.” Help? It is easy to rattle the sabers by making this case into a 'media bully vs. poor artist' scenario. However, if we place the Associated Press aside and consider Shepard Fairey's past thoughts concerning "fair use"-- as well as the contradictions of the Fair Use Project-- it is just as easy to view this case as just another attack against the rights of the majority of living artists. One could also say that it is an attack on photography as a whole.

When evaluating Shepard Fairey's case against the AP remember that it is supported by individuals who have a vested interest in artists such as Shepard Fairey. Remember that it is supported by individuals who have strived to make it so that artists would be unable to challenge copyright infringement in a court of law as they can today. After all, an extended view of "fair use" implies that. Remember that only a small percentage of visual artists benefit from the extreme interpretations of “fair use” that Lessig and the Fair Use Project support.

The majority of visual artists have a lot to lose if “fair use” continues to be supported in an extreme manner. Should the majority of visual artists sacrifice their rights so that a relatively small number of visual artists can create with total disregard for the works of others? I don't think so. Should we devalue the legal aspect of works of art so that forms of art that rely on extreme interpretations of "fair use" can be secured? I don't think so. After all, it is not just artists like Shepard Fairey that we have to look out for-- I'm certain that many corporations would love it if visual artists were unable to legally defend the ownership of their work.

In fact, I would go as far as to say that some of these individuals would like nothing more than to see copyright made void. In my opinion, cases like this are nothing more than a clever ruse to take away from the rights of all artists. Don’t be fooled by their battle cry of upholding creative freedom. In reality these individuals stand for concepts that put your art and your business at risk. Isn't it hard enough for visual artists to protect their art as it is?

With the technology of today someone like Shepard Fairey can print off and use an image of an oil painting that may have involved months of work in the studio of some yet to be known artist. That said, the beauty of copyright protection is that said artist can defend his or her art knowing that he or she will be acknowledged. That is why copyright is important. Unfortunately, there are key players who hope to destroy that. They strive to take away from your hard work, from your business, and from your dignity. They will do this while waving the banner of creative freedom.

In conclusion, my opinion is that Lawrence Lessig, Anthony Falzone, and Shepard Fairey are going to need a lot of hope in their case against the Associated Press-- they are also going to have to defend some of their past positions, statements, and lack of action. True, “fair use” is needed. After all, artists-- such as Baxter Orr-- have used “fair use” as it is intended. “Fair use” is limited for a reason. If visual artists allow “fair use” to be extended in the extreme they can kiss the business aspect of their art, as well as their legacy, goodbye. If we stand for this I'm concerned that integrity will truly be lost.

Links of Interest:

Public Knowledge and the Orphan Works Bill -- Myartspace Blog
www.myartspace.com/blog/2008/08/art-space-opinions-public-knowledge-and.html

Brad Holland Responds to Public Knowledge -- Myartspace Blog
www.myartspace.com/blog/2009/01/brad-holland-responds-to-public.html

Fair Use: Shepard Fairey and Baxter Orr
www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Take care, Stay true,

Brian Sherwin
Senior Editor
Myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com

Birds of a Feather Flock Together: Damien Hirst & Shepard Fairey / Cartrain & Baxter Orr

A collage by Cartrain involving Damien Hirst's 'For the Love of God'

The story involving Damien Hirst and his copyright infringement allegations against a 16 year old street artist-- known as Cartrain-- has taken a twist. Several influential UK artists have joined forces in order to defend Cartrain. In doing so they have targeted the contradictory nature of Hirst’s decision to seek legal action against Cartrain. After all, Damien Hirst has allegedly infringed on copyright himself-- in one case he settled out of court due to copyright infringement allegations.

The battle charge against Damien Hirst has been spearheaded by Jamie Reid -- widely known for creating the Sex Pistol‘s ‘God Save the Queen‘ cover art, Jimmy Cauty -- a former member of KLF, and Billy Childish -- co-founder and former member of the Stuckists. Reid, Cauty, and Childish have produced a series of skull images which mock copyright regulations in the UK while exploring the contradictions of Damien Hirst concerning copyright in general. A website, Red Rag to a Bull, has been created so that the trio and other artists can sell parodies involving artwork by Hirst and other YBAs.

The works sold on Red Rag to a Bull include a version of Jamie Reid's famous Sex Pistols poster. In the poster the head of the Queen has been replaced with a diamond skull. According to reports, the artists have stated that the money raised from selling the parodies will be used to handle the legal expenses of Cartrain or other artists who are “bullied” by Damien Hirst or other YBAs. The trio have also stated that if enough money is raised they will create a replica of Hirst’s ’For the Love of God’ to serve as the ultimate parody of Hirst‘s work and status. Parodies of Damien Hirst and other YBAs can be purchased at, www.redragtoabull.com.

For those who don’t know about the Damien Hirst / Cartrain situation-- The Design and Artists Copyright Society, of which Damien Hirst is a member, contacted Cartrain after receiving direct instructions from Hirst. The society informed the young artist that he had broken the law by infringing upon Hirst’s copyright. Hirst’s demands were clear-- he demanded the original works and the halt of sales with the threat of legal action. Hirst also demanded the profit that Cartrain had made from selling his collages and prints. Four works were confiscated by DACS from Cartrain’s gallery on November 12th. Reports state that Cartrain only earned about £200 from sales of the work. Cartrain has stated that DACS informed him that Damien Hirst had personally ordered the action.

The situation between Damien Hirst and Cartrain in the UK is very similar to the situation between Shepard Fairey and Baxter Orr in the United States. The saying, "Birds of a feather..." comes to mind. Cartrain, like Orr, decided to make a parody of a widely known work of art by a world renowned artist-- in this case Damien Hirst -- in order to make a social comment about Hirst’s art as well as his status in the art world. Damien Hirst, like Shepard Fairey in the case of Baxter Orr, had his legal team send a cease-and-desist letter to Cartain. Again, 'birds of a feather flock together'.

That said, unlike the situation with Baxter Orr and Shepard Fairey-- Cartrain’s parodies and profit were seized by Damien Hirst's legal team. Some reports state that Cartrain’s prints were destroyed in the process. Needless to say, if this had occurred in the United States I would think that Cartrain’s Hirst parody would have been considered “fair use” due to the widely known work he parodied and the social comment he established concerning the global status of Damien Hirst within the art market.

A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr put a SARs protective mask over the famous Obey Giant image and titled it ‘Protect’. Fair Use? You be the judge.

The irony of recent events is that we have two widely known and successful artists-- Damien Hirst and Shepard Fairey --who have defended their use of images created by others-- but are quick to stamp out any work that parodies their world renowned images. One should note the contradictions and hypocrisy that is involved with these issues. Damien Hirst and Shepard Fairey have three things in common-- they have both settled out of court due to infringing on the copyright of others, they both have careers that are shadowed by copyright infringement allegations against them, and they have both threatened legal action against artists who have done something they would otherwise support had they been in their shoes, so to speak. Thus, it seems that the two are only interested in aspects of “fair use” and freedom of expression if they are the ones applying it. Fly, fly, fly.

Concerns over copyright and interpretations of “fair use” is a global issue. I find the views that people take on issues like this to be very interesting-- they are often loaded with contradictions. For example, people are quick to say “It is art!“ when a world renowned artist-- such as Damien Hirst or Shepard Fairey-- allegedly infringes on copyright. However, those same people are apt to say “it is a rip-off!” if a less known artist-- such as Cartrain or Baxter Orr-- utilizes the same avenue of creation. It begs the question-- Does this attitude concerning copyright, and who is right or wrong concerning parody or social comment, convey a new form of elitism as far as art appreciation is concerned?

Furthermore, does it seem that when it comes down to the line only works by successful artists are truly protected-- at least as far as public opinion is concerned? Is there a double standard in the art world concerning appropriation and freedom of expression? Are some birds allowed to fly while others are shot down before having the chance to spread their wings? What say you?

Links of Interest:
For the Love of God: Damien Hirst Threatens Young Artist with Legal Action -- Myartspace Blog
www.myartspace.com/blog/2008/12/for-love-of-god-damien-hirst-threatens.html

How Damien Hirst Disappointed us --- Guardian
www.guardian.co.uk/artanddesign/jonathanjonesblog/2008/dec/15/damien-hirst-cartrain

God save the Damien Hirst rip-off industry! -- Independent UK
www.independent.co.uk/arts-entertainment/art/news/god-save-the-damien-hirst-ripoff-industry-1608219.html

Artists flout copyright law to attack Damien Hirst -- Telegraph UK
www.telegraph.co.uk/culture/art/4609976/Artists-flout-copyright-law-to-attack-Damien-Hirst.html

Fair Use: Shepard Fairey and Baxter Orr
www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Shepard Fairey sues the Associated Press over photograph of Obama
www.myartspace.com/blog/2009/02/shepard-fairey-sues-associated-press.html

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com
New York Art Exchange
www.nyaxe.com
London Calling
www.myartspace.com/londoncalling

Shepard Fairey sues the Associated Press over photograph of Obama

A comparison showing Mannie Garcia’s AP owned photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters. The portrait of Obama by Shepard Fairey is a stencil portrait.

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 had agreed not to sue Shepard Fairey up until today. However, they will likely take action now having stated that they believe it is crucial to protect photographers, who are creators and artists. The AP wants to make it clear that works by photographers and artists should not be misappropriated by others.

Shepard Fairey’s legal team has stated that Fairey did not violate copyright law because the posters “dramatically changed the nature of the image”. However, legal experts outside of the case have suggested that Fairey was not in the right. For example, Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, has stated that though the photograph is “transformed” to a “sizable extent” the owner of the photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.

Jane Ginsburg, a law professor at Columbia University who specializes in copyright cases, has stated, "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage,". Ginsburg does not think that Fairey has a valid fair-use claim and has stated that he should have at least credited the AP.

Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion of the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.”

Shepard Fairey’s lawsuit against the Associated Press was filed in U.S. District Court in Manhattan. Fairey’s legal team acknowledges that the artist used the photograph. However, they have stated that the artist transformed the “literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message.". Concerning the reason for his lawsuit against the AP Shepard Fairey has stated, "It's a suppression of an artist's freedom of expression.". However, the AP believes it is “crucial to protect photographers, who are creators and artists. Their work should not be misappropriated by others,".

The AP has stated that they are owed credit and compensation for the artist's rendition of the picture. The photograph was taken by Mannie Garcia on assignment for the AP at the National Press Club in Washington. The AP has stated that any settlement would be placed in a charitable fund that would benefit AP journalists worldwide who suffer personal loss from conflicts and natural disasters.

Shepard Fairey’s lawsuit against the AP was filed on the same day that the artist appeared in two different Boston courtrooms after having been arrested for vandalizing private and public property with graffiti-- as well as an outstanding warrant from 2000. Fairey pleaded not guilty. Of the charges Fairey has stated, "I'd love to be able to feel like the culture of Boston continues to encourage freedom of expression. If that's not going to be the case, I'll deal with that."

Some individuals feel that Shepard Fairey is revealing his true colors due to the stress of the Associated Press copyright infringement allegations. After all, Fairey often says that people should “question everything”, but questions about various copyright allegations against him were taken off the table at a recent Q&A session. Reports state that during the session the audience was not allowed to ask questions and that the questions asked by a curator were “soft”. Thus, it has been suggested that Fairey is a hypocrite. After all, he settled out of court with the estate of Rene Mederos in 2007 after willfully infringing on a copyright protected poster by Mederos. A poster that Rene Mederos created in 1972.

Shepard Fairey infringed on the copyright of the Rene Mederos estate in 2007. He copied the poster from a book and made a few changes. Fairey titled the image 'Cuban Rider'. Fairey acknowledged the copyright infringement and settled out of court with the Rene Mederos estate. He later suggested in an inteview with Mother Jones that he thought it was acceptable to use the image because Mederos was from Cuba.

In 2008 Shepard Fairey sent an artist, Baxter Orr, a cease-and-desist letter that threatened legal action after Orr had created, distributed, and sold a parody of Fairey’s widely known Obey Giant poster. Orr’s poster was protected by “fair use” under both copyright and trademark laws. Fairey claimed that Orr’s poster was both copyright and trademark infringement. At the time Fairey stated, "I have to deal with the bad end of it(copyright) sometimes. I've had to pay out,". Fairey also stated at the time that the difference between him and Orr is that if he's contacted by a copyright owner, he'll stop using that image.

A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr put a SARs protective mask over the famous Obey Giant image and titled it ‘Protect’. Fair Use? You be the judge.

That said, some individuals have suggested that Shepard Fairey is only interested in “fair use” when he is the one utilizing it-- or if high profit is involved. Regardless of how the AP situation turns out the damage has already been done. In other words, the artist who says that people should “question everything” is being questioned about his ethics-- when will he answer?

Links of Interest:

Calif. artist sues AP over image of Obama by Larry Neumunster -- Associated Press
http://news.yahoo.com/s/ap/20090209/ap_on_re_us/obama_poster

Shepard Fairey Fights Back by Aaron Perry-Zucker -- Fast Company
http://www.fastcompany.com/blog/aaron-perry-zucker/new-ideas/supply-demand-shepard-fairey-ica

Fair Use: Shepard Fairey and Baxter Orr by Brian Sherwin at MyartspaceBlog

http://www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Shepard Fairey Doges Criticism at ICA: Street Artists and CopyrightAdvocates Demand Answers by Brian Sherwin at Myartspace Blog

http://www.myartspace.com/blog/2009/02/shepard-fairey-dodges-criticism-at-ica.html

Jaime O’Shea Obeys Shepard Fairey by Taking Jabs at Mark Vallen by Brian Sherwin -- Myartspace Blog

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

Shepard Fairey: Obey Copyright by Brian Sherwin -- Myartspace Blog
http://www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html

Shepard Fairey: OBEY my lawyers by Dan Wasserman -- Boston Globe
http://www.boston.com/bostonglobe/editorial_opinion/outofline/2009/02/fairey_obey_my_lawyers_1.html

How phony is Shepard Fairey by Dan Wasserman -- Boston Globe
http://www.boston.com/bostonglobe/editorial_opinion/outofline/2009/02/how_phony_is_shepard_fairey.html?p1=Well_MostPop_Emailed6

Take care, Stay true,

Brian Sherwin

Senior Editor

myartspace.com

www.myartspace.com

New York Art Exchange

www.nyaxe.com

London Calling

www.myartspace.com/londoncalling

Fair Use: Shepard Fairey and Baxter Orr

A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr put a SARs protective mask over the famous Obey Giant image and titled it ‘Protect’. Fair Use? You be the judge.

Back in 2008 there was a story concerning “fair use” and Shepard Fairey. Followers of the Myartspace Blog may recall that there have been comments concerning the story when art law is discussed. The story involves Shepard Fairey and Baxter Orr. Orr created a parody of the iconic Obey Giant image-- which he distributed and sold as his own. Orr-- being cynical of Shepard Fairey -- strived to make a visual statement about Fairey’s art in general. Needless to say, Orr accomplished his goal.

Debate over Orr’s appropriation of Obey Giant spread like wildfire on blogs and forums. Eventually Orr received a cease-and-desist letter from Shepard Fairey’s legal team over his use of the Obey Giant image and was threatened with legal action if he failed to comply. Due to the iconic status of Obey Giant I feel that Orr’s poster was legitimate under “fair use”. In my opinion, Baxter Orr’s use of the image falls under “fair use” more so than Shepard Fairy’s “fair use” claim involving the Associated Press photograph of Obama-- which was taken by Mannie Garcia. After all, the photograph of Obama itself was not widely known-- it was not in itself iconic.

My opinion is that Baxter Orr was working well within the realm of fair use-- or trademark fair use-- when he created, distributed, and sold ‘Protect’. In other words, his image was “fair use” under both copyright and trademark law as far as I‘m concerned. After all, Orr created his parody in 2008-- the Obey Giant poster had been around for 20 years by that time and had already been considered culturally iconic as street art and as a trademarked logo. Fairey’s image of Andre the Giant had been published dozens if not hundreds of times-- in other words, the image was already within the heart of contemporary culture.

The fact that Fairey’s image had been published does not necessarily matter as far as fair use is concerned. However, the fact that it was an art phenomenon before 2008 does-- which is why it had been published in the first place. Baxter Orr simply made a parody of a world renowned image which reflected the very intention of fair use. Thus, I don’t see anything wrong with Orr deciding to make a visual statement about Obey Giant. I have no problem with “fair use” as long as it is used in the way it is intended.

Before I go any further I must stress something-- I realize that some people are suggesting that Baxter Orr was in the wrong because Obey Giant is a trademark. That said, what people are forgetting is that there is “fair use” for copyright and trademark laws. For example, in 1997 Tom Forsythe created ‘Food Chain Barbie’. The series of photographs depicted the Barbie doll in various kitchen situations. Forsythe stated that his goal was to “critique the objectification of women associated with Barbie.”. Forsythe was soon after sued by Mattel-- the manufacturer of Barbie dolls. Mattel claimed that the artist had infringed on the copyright and trademark which the company owned. However, a federal court ruled in favor of Tom Forsythe. The court found that the photographs were protected “fair use” under both trademark and copyright law. The court stressed the importance of critiquing “cultural icons” through art. Thus, I think the court would have sided with Baxter Orr along the same grounds.

There was no mass confusion concerning Shepard Fairey’s art and Baxter Orr’s art in regards to Orr’s ‘Protect’. The connection between Fairey’s image and Orr’s image was obvious to viewers, but it was also obvious that Fairey did not create ‘Protect‘. Orr did not try to conceal the artist of the base image, so to speak. He did not hide the fact that he had used Fairey’s Obey Giant image. In other words, Baxter Orr did not claim that it was a random image that he found online or anything of that nature. He did not try to promote it as work by Shepard Fairey either.

Viewers made the connection between the two images-- there was a visual dialogue going on. For example, online comments from that time ranged from support to furious rants concerning the ethics of Baxter Orr. Orr had achieved what he set out to do in that his poster fueled debate about the commercialization of street art and the contradictions of Shepard Fairey and his fan base.

Thus, Orr’s ’Protect’ was a clear parody of ‘Obey Giant‘ as well as a social comment about criticism that Shepard Fairey and the commercialization of street art had long endured-- and continues to endure today. Unfortunately, the dialogue was-- for a period of time -- cut short by Shepard Fairey's scare tactic in the form of a cease-and-desist letter sent to Orr. The artist who says to “question everything” tried to silence what he considered opposition.

Baxter Orr was aware of “fair use”-- he knew what he was doing… which is why ‘Protect‘ can still be purchased on his site (though he has since renamed the poster ‘Protect Yourself Giant‘-- www.baxterorr.com). Orr selected an image by Shepard Fairey that people would recognize due to its iconic status-- knowing that people would not be confused. By doing so Baxter Orr fostered debate. That is why we have fair use in the first place. Is it not? Orr’s image was both a parody and a social comment. In my opinion, Orr’s visual critique of ‘Obey Giant’ was of great importance to the public concerning Fairey’s iconic poster and the controversy that has shadowed his career for twenty years. In a sense, one could say that Orr gave a visual answer to the artist who often boldly states that people should “question everything”.

According to The Austin Chronicle-- which covered the conflict between Shepard Fairey and Baxter Orr in May of 2008 -- Fairey had the following to say about copyright and Baxter Orr at the time-- he stated, . "I have to deal with the bad end of it(copyright) sometimes. I've had to pay out," he said. But, he says, the difference between him and Orr is that if he's contacted by a copyright owner, he'll stop using that image.” In the same article Baxter Orr was quoted about his opinion concerning the cease-and-desist letter he received from Shepard Fairey’s legal team, “It’s ridiculous for someone who built their empire on appropriating other people’s images,” followed by, “Obey Giant has become like Tide and Coca-Cola.”

In hindsight Orr has fully achieved what he set out to do-- Orr’s image was a visual comment on what he viewed as the hypocrisy of Shepard Fairey‘s practice. With what we know today-- the copyright infringement allegations involving Mannie Garcia‘s AP photograph and Fairey‘s ‘Hope’ posters-- perhaps Orr was right all along? If so, he made a powerful visual statement with ‘Protect’.

With that in mind-- I think there is enough information floating around to suggest that Shepard Fairey only cares about fair use when he is the one claiming it. After all, if Fairey is truly willing to “pay out” and stop using an image after being contacted by a copyright/trademark owner-- as he did with the estate of Rene Mederos in 2007 -- why is he not willing to “pay out” to the rightful owner of the Mannie Garcia photograph? Perhaps Shepard Fairey should obey the conviction he expressed over the Baxter Orr situation in 2008-- as in copyright owners being paid when they come forward. Needless to say, I don’t think that will happen.

The difference between Shepard Fairey and Baxter Orr is that Fairey is claiming "fair use" of a photograph that was not widely known involving a work of art that failed to establish a connection between the old and new image. After all, how many people said "Shepard Fairey is commenting on Mannie Garcia's AP photograph." when they viewed 'Hope'? It puzzles me that Shepard Fairey views his use of the AP photograph as “fair use’ when in 2008 he did not accept Baxter Orr’s use of Obey Giant as “fair use”-- especially when one considers the iconic status of Obey Giant against the little known photograph that Fairey chose to use for ‘Progress’ and ‘Hope’. Simply put, Shepard Fairey failed at fair use.

Furthermore, Shepard Fairey has stated that he “references” work that inspires him. So why is he against people-- such as Baxter Orr-- “referencing” his work if they are inspired by it? My point being that I don’t like contradictions. You can’t have the best of both worlds without having your integrity questioned. In other words, it is laughable that Shepard Fairey seems to think that it is ok when he “references” photographs and works of art that are not well known while at the same time saying that people can’t “reference” his widely known posters. The hypocrisy is alarming.

To be fair-- it does seem that Shepard Fairey and Baxter Orr have a mutual dislike for one another-- at least now. However, emotion does not control “fair use”. Fairey has mentioned that it would not have been an issue if Orr’s work had been pro-OBEY-- he has made it clear that he does not mind people making parodies of his images for their personal use. That said, I think the heart of this matter is that maybe Shepard Fairey did not like the fact that someone was making profit off of works involving Obey Giant. Which begs the question-- If Shepard Fairey does not like it when people profit from use of his work why does he do the exact same thing to other artists and copyright / trademark owners in general?

Links of Interest:

Shepard Fairey Threatens to Sue Artist for OBEY Giant Parody -- Animal New York
www.animalnewyork.com/news/2008/04/shepard-fairey-threatens-to-su.php

Shepard Fairey Declares Only He Can Copy and Paste -- Animal New York
www.animalnewyork.com/news/2008/04/shepard-fairey-declares-only-h.php

Artist Cage match: Fairey vs. Orr by Richard Whittaker -- The Austin Chronicle www.austinchronicle.com/gyrobase/Issue/story?oid=oid:625022

Fair Use It or Lose It Copyright owners’ threats erode free expression by Marjorie Heins -- Fair Blog
www.fair.org/index.php?page=3066

Shepard Fairey: OBEY my lawyers by Dan Wasserman -- Boston Globe / Out of Line
www.boston.com/bostonglobe/editorial_opinion/outofline/2009/02/fairey_obey_my_lawyers_1.html
Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com

Art Law Professionals weigh-in on Associated Press Copyright Infringement Allegation Against Shepard Fairey.

A comparison showing Mannie Garcia’s photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters. The portrait of Obama by Shepard Fairey is a stencil portrait. Fairey created a stencil over a scanned version of the photograph that was slightly tilted according to various articles.

As I’ve mentioned before the issue of Shepard Fairey, Mannie Garcia, and fair use has sparked a debate among the copyright law community online. Now the debate has been taken to the next level due to the fact that the Associated Press has acknowledged their ownership of the photograph and has made it clear that they want compensation from Shepard Fairey as well as some control over how the image is used in the future.

The debate is centered on a press photo of Obama taken by Mannie Garcia that Shepard Fairey used in order to create his stencil portraits of Obama. The story has caused an outrage among photographers and supporters of copyright protection due to the fact that Shepard Fairey did not ask permission to use the photograph. Others claim that Shepard Fairey’s use of the photograph falls under fair use as transformative art. However, fair use is still a predominately untested aspect of art law-- so the results of this case may help to put fair use into perspective. Needless to say, there is a growing concern that individuals and companies are exploiting the intention of fair use.

Fair use implies that the ’new’ image comments or parodies the ’old’ image-- in the case of the Obama photograph the dialogue between the old image and the new image was not established because the majority of people did not make the connection upon viewing Fairey’s various Obama posters which utilized the Obama photograph. In fact, the only defense that many Fairey supporters seem to have concerning Fairey’s fair use is that he was very open about his fair use practice in his book Supply and Demand.

However, many people-- including myself-- don’t think that fair use implies that one need buy a $59.95 book in order to be aware of the dialogue between the original images and Fairey’s work based off of the original images. Thus, if we are to accept Fairey’s idea of fair use it would mean that any image is fair game under fair use-- you just have to pitch a book to defend your intentions. Would Shepard Fairey support an artist if the artist used his images, tilted them slightly, and made a few additions in order to call the image his or her own? I doubt it. He did not like when Baxter Orr did that-- and was quick to send Orr a cease-and-desist letter.

A comparison of a poster by Shepard Fairey (left) next to a poster by Baxter Orr (right). Orr’s put a SARs protective mask over the famous Fairey image and titled it ‘Protect’. Shepard Fairey sent Orr a cease-and-desist letter and threatened legal action even though the Obey Giant image is considered iconic-- thus, Orr’s use of the image could be considered fair use. If anything, Orr’s use of the image falls under fair use more so than Shepard Fairey’s fair use claim involving the Associated Press photograph of Obama. After all, the photograph of Obama itself was not widely known.

What art law professionals are saying about Shepard Fairey’s use of the AP owned Obama photograph:

Anthony Falzone, the executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School has stated, "We believe fair use protects Shepard's right to do what he did here,". It should be noted that Falzone is Fairey’s lawyer.

Jane Ginsburg, a law professor at Columbia University who specializes in copyright cases, has stated, "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage,". Ginsburg does not think that Fairey has a valid fair-use claim and has stated that he should have at least credited the AP.

Robin Gross, an intellectual property attorney who heads the international civil liberties organization IP Justice, has stated, "Fairey's purpose of the use for the photo was political or civic, and this will certainly count in favor of the poster being a fair use,". Gross has also stated, "Nor will the poster diminish the value of the photo, if anything, it has increased the original photo's value beyond measure, another factor counting heavily in favor of fair use.".

Recently Michael Madison, a Professor of Law at the University of Pittsburgh School of Law, stated, “Sure, the photo is “transformed” to a sizable extent, which pushes the fair use needle to Fairey’s side. But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo. Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money. Push that needle back a ways.”

Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion of the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.”

My take on it:

Was Shepard Fairey’s Obama posters officially endorsed by the Obama campaign or not?
www.myartspace.com/blog/2009/02/was-shepard-faireys-obama-posters.html

Jamie O'Shea Obeys Shepard Fairey by Taking Jabs at Mark Vallen
www.myartspace.com/blog/2009/02/jamie-oshea-obeys-shepard-fairey-by.html

Shepard Fairey: Obey Copyright
www.myartspace.com/blog/2009/01/shepard-fairey-obey-copyright.html

The Intentions of Shepard Fairey Should be Examined
www.myartspace.com/blog/2008/11/intentions-of-shepard-fairey-should-be.html

Obama’s Obedient Artist: Is Shepard Fairey a Farce?
www.myartspace.com/blog/2008/09/obamas-obedient-artist-is-shepard.html

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com

Was Shepard Fairey’s Obama posters officially endorsed by the Obama campaign or not?

A comparison showing Mannie Garcia’s photograph of Obama next to Shepard Fairey’s ‘Progress’ and ‘Hope’ posters.

Imagine my surprise when I arrived home to find an article titled ‘Obama ‘Hope‘ poster‘s artist in legal dispute‘ on the front page of Yahoo!. After all, I’ve been calling for the mainstream media to examine the art and intentions of Shepard Fairey for months. Knowing Fairey’s history I was surprised that Barack Obama would choose an artist with a history of copyright infringement allegations to represent his campaign visually-- especially since Obama had by that time been praised as a ’Champion of the arts’.

I was also surprised that the visual art community-- most of whom do not agree with willful copyright infringement -- was for the most part silent on Obama’s choice of using Fairey‘s poster. I suppose making a stand was not a popular option. After all, those who did question the connection between Fairey and Obama were labeled “jealous”, “conservative”, “lazy”, “apathetic”, “right wing” or worse. Thus, the public ended up reading mainstream article after article praising Shepard Fairey with little to no balanced criticism of the copyright infringement allegations that have shadowed his art career or what his connection to the Obama campaign could symbolize in the eyes of those who strongly support copyright and artist rights. Now that the election is over people have time to reflect on these issues. The mainstream media did not take notice of copyright infringement allegations involving Shepard Fairey-- until recently. My guess is that eventually they will focus on Fairey’s connection to Obama’s historic campaign.

I don’t want to appear as if I’m a braggart, but I must say that on some level I expected the truth to be revealed at some point. In fact, I warned about it. In a Myartspace Blog article, titled ‘Obama’s Obedient Artist: Is Shepard Fairey a Farce? (Sept 21, 2008), I stated, “there is a message just under the surface of (Shepard Fairey‘s) ‘HOPE’ that should be examined before hype sways opinions.” concerning Fairey‘s media driven status and the copyright infringement allegations of his past. In the same article I mentioned that selective history-- as in the mainstream media not reporting in a balanced manner concerning Shepard Fairey‘s rise alongside the Obama campaign-- can build a career as long a people don't take notice of it.

Oddly enough, in response to a blog comment I suggested that due to Shepard Fairey’s history of alleged copyright infringement it may turn out that Fairey’s Obama posters are not exactly original-- it looks like I was right. Obviously people are starting to take notice due to the Mannie Garcia / Associated Press (AP) controversy surrounding Shepard Fairey’s alleged copyright infringement of a photograph of Obama taken by Garcia while working for the AP. However, the issue over copyright is not the only thing that needs to be examined.

Upon clicking the Yahoo! News update I read the article-- officially titled ‘AP alleges copyright infringement of Obama image’-- I was not surprised to discover that it contradicted several articles involving statements from key individuals who were directly involved with the production, distribution, and promotion of Shepard Fairey’s ’Hope’ posters. Indeed, the selective history surrounding Shepard Fairey’s Obama posters is still ever-present. Needless to say, I think Shepard Fairey’s connection to the campaign in general needs to be examined further so that the visual history of this historic campaign is documented based on fact instead of hype or emotive reasoning. Thus, I feel that it is important to examine the article in order to help put the puzzle together.

Before I go further I must make the blunt of the Associated Press article clear. The author of the article, Hillel Italie (AP National Writer) states that the Associated Press (AP) owns the copyright of the Mannie Garcia photograph that Shepard Fairey used to create his Obama posters. The article touches on the fact that Shepard Fairey did not credit or compensate Garcia or the AP and claims that he worked within his rights based on fair use. Italie goes on to say that the AP desires to receive credit and compensation from Shepard Fairey. The article also states that the AP is discussing the continued use-- as in gallery exhibits-- and distribution of the poster with Fairey’s attorney. Needless to say, Shepard Fairey does not agree with the opinion of the Associated Press.

Now it is time to explore how the article contradicts statements by Shepard Fairey and others concerning the photograph, the Obama campaign, and if the poster was officially sanctioned by the campaign or not:

I found one section of the article to be of great interest concerning the connection that the Obama campaign had regarding the photograph and its use by Shepard Fairey. Italie states, “A former Obama campaign official said they were well aware of the image based on the picture taken by Garcia, a temporary hire no longer with the AP, but never licensed it or used it officially. The Obama official asked not to be identified because no one was authorized anymore to speak on behalf of the campaign.” Again, this is interesting because the opposite has been said elsewhere.

In a WIRED article titled ‘Obey’ Street Artist Churns Out ‘Hope’ for Obama (Sept 21, 2008) “Before going into production on his first Obama-inspired print, Fairey, a fan of the senator after seeing him speak in 2004, was careful to seek approval from the campaign. "I didn't want anything I did to be a liability or an unwanted endorsement," said Fairey. "We had the unofficial wink and nod to do an image."" The WIRED article then states, “After the success of the "Progress" print, Fairey says he was contacted by the Obama campaign to create an officially sanctioned poster in the same style -- only this time with a campaign-approved photo and slogan. The new artwork featured the now-famous "Hope" slogan.”. It just does not add up.

Anyone who has seen ‘Progress’ and ‘Hope’ side by side (See Image at Top) knows that the stencil portrait of Obama is the same-- which means that both posters are based on the copyright protected photograph of Obama according to the Associated Press -- so was the AP photograph the “campaign-approved“ photo or not? Did WIRED flub on reporting? Did Shepard Fairey lie to WIRED about ‘Hope’ being “officially sanctioned”? Are individuals involved with the Obama campaign telling the truth about how official or unofficial the poster was? Where is the truth-- how far should this be investigated to discover the truth? I suppose time will tell.

The contradictions don’t stop there. In the article Italie states, “Fairey has said that he first designed the image a year ago after he was encouraged by the Obama campaign to come up with some kind of artwork. Last spring, he showed a letter to The Washington Post that came from the candidate. "Dear Shepard," the letter reads. "I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can help change the status quo. Your images have a profound effect on people, whether seen in a gallery or on a stop sign."" Was Shepard Fairey encouraged by the Obama campaign or did he work directly with the Obama campaign? Some past articles may shed some truth…

An article published by LA WEEKLY, titled ‘Yosi Sergant and the Art of Change: The Publicist Behind Shepard Fairey’s Obama Hope Posters (Sept 10,2008) claims that Yosi Sergant of Evolutionary Media Group (EMG) -- Sergant and EMG were working as media consultants for the Obama campaign at the time-- brought Shepard Fairey into the Obama campaign. The article states, “Sergant engaged Fairey in a discussion about the upcoming election. And when he found out that the artist was an Obama enthusiast, Sergant asked Fairey if he was doing anything to help the candidate get elected.” This info begs the question-- was Shepard Fairey simply encouraged by the Obama campaign or was he sought out by the Obama campaign as an addition to the campaign pr machine?

The article goes on to say, “The next day Fairey called, wondering if he thought the Obama camp would mind if he made a poster. Sergant immediately realized the power an iconic image by Fairey could have and decided that he and Evolutionary Media Group could be more effective if they worked outside the confines of the official Obama campaign and teamed up with Fairey instead.” It should be noted that Yosi Sergant and Evolutionary Media Group had worked six months as media consultants for the Obama campaign. Apparently they left the campaign ‘officially’ once Fairey came into the fold. However, they were obviously still working closely with the Obama campaign based on information that is provided by other articles pertaining to this story.

An article published by the New York Post, titled ‘Paint Misbehavin‘ In Team O‘S ‘Street Art‘, offer more information that suggests that Shepard Fairey, EMG, and the Obama campaign were still working closely together. The article states, “Fairey worked in such close coordination with campaign communications director Scott Goodstein that they discussed the color palette for Fairey's limited-edition Obama print. Within days of going up on Fairey's site, it sold out. Fairey produced two more versions, which also sold out and now fetch up to $1,300 on eBay.” This information is interesting to consider when in the same article Sergant is quoted as saying that he was never commissioned by the campaign to seek out street artists such as Shepard Fairey.

In fact, Yosi Sergant claims that the art by Fairey and other street artists was “purely user-generated."-- as in no involvement or guidance from the Obama campaign. The article quotes Yosi Sergant as stating that he never consulted with Scott Goodstein about programs that he worked on during his own time outside of the office. Again, the article quotes Sergant as saying, “The campaign was completely unaware of the art stuff.” I’m not sure who to believe! Are you?

In ‘Paint Misbehavin‘ In Team O‘S ‘Street Art‘’ Sergant states, “The campaign was completely unaware of the art stuff. I never worked out of the GO! [Generation Obama] offices." So which is it? Did the Obama campaign seek out Shepard Fairey? Did the Obama campaign put Yosi Sergant-- who was a media consultant for the campaign at the time-- in charge of recruiting street artists for a stealth pr campaign on the streets? Did Yosi Sergant act without the knowledge of the Obama campaign as he claims in the New York Post article? Or did Fairey contact the Obama campaign directly on his own accord? Which is it?

Oddly enough the article by Italie states, “At first, Obama's team just encouraged him to make an image, Fairey has said. But soon after he created it, a worker involved in the campaign asked if Fairey could make an image from a photo to which the campaign had rights.” Confused? Maybe the mainstream media will finally sort this story out. The public deserves it-- students reading the art history books of tomorrow deserve it. We deserve to know what exactly happened, who was involved, and how it was funded. Don’t we?

Individuals need to take responsibility for the confusion that has dominated this aspect of Obama’s historic campaign. Is the mainstream press at fault? Are former members of the Obama campaign at fault? Should Shepard Fairey take some responsibility? What about President Obama himself?

Links of Interest:

AP Alleges Copyright Infringement of Obama Image by Hillel Italie -- Associated Press
http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster

Paint Misbehavin’ in Team O’S ‘Street Art’ by Maureen Callahan -- New York Post
www.nypost.com/seven/04242008/news/nationalnews/paint_misbehavin_in_team_os_street_art_107876.htm?page=0

Yosi Sergant and the Art of Change: The Publicist Behind Shepard Fairey's Obama Hope Posters by Seven Mcdonald -- LA Weekly
www.laweekly.com/2008-09-11/columns/yosi-sergant-and-the-art-of-change-the-publicist-behind-shepard-fairey-39-s-obama-hope-posters/

‘Obey’ Street Artist Churns Out ‘Hope’ for Obama by Jenna Wortham -- WIRED Blog Network
http://blog.wired.com/underwire/2008/09/poster-boy-shep.html

Take care, Stay true,

Brian Sherwin

Senior Editor

myartspace.com

www.myartspace.com