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

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My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 3

Part 1
Part 2

As I’ve said before, securing creative freedom is one thing-- the desire to legitimize irresponsible and disrespectful appropriation for profit is another. Creative freedom is not under attack-- the rights of artists to secure their artwork and images of their artwork by copyright is. The ability for artists to protect the market for their art is under attack.

Those on the other side of the aisle, such as Shepard Fairey, continue to wave the banner of creative freedom-- I wish they would just come out and say what their battle charge is really about. They want to be able to profit off of the works of others while at the same time protecting their ‘new‘ images from “profiteers“, “mimics“, and “parasites“. Shepard Fairey wants the best of both worlds.

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

Shepard Fairey failed to mention that many of the artist examples he listed appropriated widely known images instead of a photograph that was relatively unknown as he did with Mannie Garcia‘s AP copyrighted photograph of Obama. For example, the famous photograph of Marilyn Monroe was widely known, for the time, when Warhol used it. Warhol’s image quickly became iconic. Thus, under “fair use” one could parody Warhol’s Marilyn with little worry.

The same goes for other examples Fairey listed, such as ‘Jetsons’ by Kenny Scharf-- Scharf was a child in the 60s- it is safe to say that The Flintstones and The Jetsons were iconic long before Scharf used them in his art as an adult. The Marlboro advertisements that Richard Prince re-photographed were also widely known for their time. On a side note-- Fairey must not know that Richard Prince is having troubles of his own right now over copyright infringement.

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

Shepard Fairey is full of contradictions. Today he is the champion of artistic freedom and free expression-- for many he is now the poster boy for “fair use“. However, last year he had a different stance on artistic freedom and free expression. In an October 2008 article for US News Shepard Fairey mention that he planned to “go after” individuals who “hijacked” his style in order to make “copycat images” of the candidates. He stated that he would try to make the “bootleggers” donate their profit to the ACLU. The fact remains that Shepard Fairey is not the champion of appropriation that he claims to be. After all, his Obama posters were widely known by that time. One could suggest that parodies of HOPE and PROGRESS would be perfectly acceptable under “fair use” due to the iconic status of the posters.

Need further insight concerning the contradictions of Shepard Fairey over “fair use”? In May of 2008-- as reported by the The Austin Chronicle -- Shepard Fairey was infuriated when emerging artist Baxter Orr created a parody of Fairey’s 20 year old image of Obey Giant-- an image that was widely known… iconic in its own right. Orr titled his parody ‘Protect’ and placed a SARS mask over the face of Andre. Soon after Orr received a cease-and-desist letter from Obey Giant Art Inc. The Austin Chronicle reported that Fairey called Orr a “profiteer”, “parasite”, and “mimic” for having appropriated Obey Giant.

Fairey, according to the Austin Chronicle, felt that Orr’s parody of Obey Giant threatened the secondary market for his art. In the Orr situation Fairey made it clear that he was protecting his trademark. Obey Giant is a trademark-- however, there is “fair use” under trademark. Fairey knows this-- he has parodied trademarks himself. He also said that the difference between he and Orr is that if contacted by a copyright owner he will stop using the protected image. Apparently that does not count in regards to the Associated Press case? The contradiction don’t stop there.

Earlier this month, March 2009, the Pittsburgh City Paper reported that Shepard Fairey had sent a cease-and-desist letter to Cafepress.com due to a store titled Steelerbaby. The store featured merchandise involving Steelerbaby , a doll designed by Larkin Werner. The official site for Steelerbaby features an image of the doll along with several catch phrases that visitors can click in order to have Steelerbaby say the phrase. One of the most popular Steelerbaby phrases happens to be “Obey Steelerbaby”. Thus, Werner created “Obey Steelerbaby” merchandise for his Cafepress shop. Cafepress removed all of the Obey Steelerbaby merchandise soon after receiving the cease-and-desist letter from Obey Giant Art Inc. However, Werner claims that he was not inspired by Shepard Fairey in the first place. Needless to say, Shepard Fairey felt that the merchandise was a threat to his trademark and the market for his art.

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".

Keep in mind that Werner only made just over $70 from Obey Steeler baby merchandise-- just barely enough to buy an OBEY hoody. Again, Werner claims that Shepard Fairey’s ‘OBEY’ was not on his mind. Even if it had been I would think that his use of Obey would be considered parody and that it would be acceptable under “fair use” due the iconic status of OBEY in general. Which begs the question-- does Shepard Fairey really support “fair use” and the whole of appropriation for that matter?

Again, this is just my take on Shepard Fairey’s message concerning the AP, Obama, and referencing. Read his message in its entirety in order to draw your own conclusions. I stand by my opinions . I want to make it clear that there is nothing wrong with being successful. I want artists to be successful. However, I also want emerging artists to be able to protect their work from the abuse of profiteers- like Shepard Fairey-- who take an extreme position regarding “fair use“ for their own gain.

I don’t care if it is a corporation, an artist, or an artist who owns a corporation-- they should not prey on the images of emerging artists. An artist can be successful and sustain a level of integrity. If the laws allow abuse perhaps they should be changed as far as visual art is concerned.

This is a 4 part rant:

Part 1
Part 2
Part 3
Part 4

Take care, Stay true,

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

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 2

Part 1

Fairey states, “As far as the idea of the image being “stolen”, I would love to have the clout to command portrait sittings from world leaders, but for me and most artists out there, that is not an option. For lots of artists, even licensing an image is out of the question financially. Should artistic commentary featuring world leaders be stifled because of copyright of the reference images even when the final artistic product has new intent and meaning? Reference is critical to communication, and in my opinion, reference as a part of social commentary should not be stifled.”.

Unfortunately, Shepard Fairey failed to mention that some media sources and individuals make images of this nature available for use at no cost. There were many photographs of Obama that Shepard Fairey could have used legitimately without dodging aspects of licensing that any first year illustration student understands. Keep in mind that he could have simply asked Yosi Sergant of Evolutionary Media Group to obtain a photograph of Obama during the campaign. After all, Yosi Sergant worked as a media consultant for the Obama campaign. Thus, one could suggest that Shepard Fairey did have access if he had wanted it. Instead, he chose to willfully infringe on the copyright of the AP.

Fairey stated, “Another suggestion someone made was “why not splice two or three photos together and illustrate from that?” Well, though a direct match would have been harder to find, with an image as popular as the HOPE poster, internet sleuths would probably have found the references and maybe I’d be facing two or three lawsuits.” Followed by, “This leads to the next question: is illustrating from a photograph “cheating”? I studied art, illustration specifically, at one of the most prestigious art schools, The Rhode Island School of Design. At RISD I was taught to draw from life, to draw from photo references, and to appropriate and re-contextualize imagery. All of these techniques had historical precedents which I learned about. Here are some great examples of famous painters working from photo references, and not always their own photos - http://fogonazos.blogspot.com/2006/11/famous-painters-copied-photopraphs_06.html”

I’m glad that Shepard Fairey learned the basics at RISD. However, I don’t think this brief reflection of his academic years has served him well. I don’t think many people suggest that drawing or painting from a photograph is “cheating”-- that is not really the issue here in the first place. Fairey’s distraction aside, there is a difference between drawing or painting from a reference photograph compared to stenciling over a copy of a photograph.

No, that is not to suggest that stenciling is ‘wrong’ or is of no value-- its just that it is a different process than drawing or painting as far as I’m concerned. As mentioned earlier, the real issue is that most first year illustration students know that if they use a copyrighted photograph as a reference or as a base image they had better ask permission or finding out about licensing from the copyright holder.

In his defense Fairey mentioned how artists from the past used photographs as a reference, some of which were “not always their own photos”-- the link he provided mentioned, Paul Gauguin, Paul Cezanne, Toulouse Lautrec, Vincent van Gogh, and Edgar Degas. Unfortunately, Shepard Fairey failed to mention that the situation today is very different compared to the past-- especially with respect to art law and the art market.

None of the greats he mentioned earned over $700,000 from copies of a single image in their respected currency during their lifetime. None of them had sold out exhibits involving thousands in profit during their lifetime-- at least not when compared to the profit that some artists earn from exhibits today. None of them sold their art as a corporation as far as I know-- dear Vincent did not run Starry Night Art Inc., true?

Furthermore, the famous painters that Shepard Fairey mentioned were not aware of copyright law as we know it today-- as any first year illustration student knows it today-- these artists were long dead before current copyright law. Times change-- the business of art has changed. Keep in mind that the majority of visual artists have fought for decades to have the rights they enjoy due to copyright-- the right to have more control in the market of their art.

Now, more than ever, visual artists need to be able to protect the market for their art. It seems that if we lived in Shepard Fairey’s world-- a world where current law is useless-- it would be acceptable to take a leap back in time in order to neglect the rights that creative individuals enjoy today. If the art community accepts Shepard Fairey’s extreme interpretation of “fair use” it will no doubt cause even more artists to endure the same financial woes that Vincent van Gogh endured in his time.

Fairey then states, “I have respect for, and have frequently collaborated with, photographers, but I do not think permission, or a collaboration is warranted in every case where an artist works from a photo reference. I collaborate with photographers because I WANT to, not because I believe I HAVE to.”

If Shepard Fairey feels this way he has failed to acknowledge over 60 art organizations that stood up against the 2008 Orphan Works legislation. With this statement he has slapped every photographer, including fine art photographers, in the face. With this statement he slaps Brad Holland and the Illustrators Partnership of America in the face as well. With this statement Shepard Fairey slaps the face of every creative person who understands the need to be able to protect their works!

Shepard Fairey is doing this while waving the banner of ‘artistic freedom” and “free expression” when in reality he is concerned with the freedom to profit off of the hard work of others without consequence. Keep in mind that this is the same artist who ‘ referenced ’ a poster by Rene Mederos without contacting the Mederos Estate for permission. After being exposed he stated that he did not know how to contact Rene Mederos since Mederos lived in Cuba. Apparently he was unaware that Rene Mederos had died in 1996-- so much for Shepard Fairey’s art history lessons.

This is a 4 part rant:

Part 1
Part 2
Part 3 Part 4

Take care, Stay true,

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

Shepard Fairey decides that Steelerbaby does not need to Obey his legal team

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

UPDATE: It appears that Shepard Fairey has dropped his cease-and-desist order against Cafepress and Larkin Werner's Steelerbaby store. My sources tell me it was dropped on March 10th-- days after my post about the issue.

Disobey Shepard Fairey by Brian Sherwin -- Myartspace Blog

www.myartspace.com/blog/2009/03/disobey-shepard-fairey.html

There are three rumors floating around as to why Shepard Fairey dropped his cease-and-desist order-- all of which suggest that he did it in order to save face:

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? After all, Fairey sent the cease-and-desist letter a week or so before his last interview on NPR. During that interview he suggested that he is going against the AP in order to secure the rights of all artists who work under "fair use". Perhaps he is finally realizing that part of that involves people being able to parody his widely known posters and trademark? Or maybe he just took a big gun away from the Associated Press countersuit?

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". Shepard Fairey often appears to have a selective interpretation of "fair use"-- as in it is OK for him to parody-- or comment on visually-- the work of others while at the same time sending legal threats when emerging artists parody his world renowned images. Due to this it has been suggested that Shepard Fairey is only interested in "Fairey 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. Shepard Fairey of all people should understand the double-edged sword of mass media. It can’t be butterflies and awards all the time.

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

At some point the artist who says "question everything" must answer some difficult questions from fans, critics, and collectors concerning his ethics, the validity of his art, and the contradictions that have shadowed his career-- questions that can't be answered by a resume of good deeds. The sidestepping and using charity as a shield during interviews must stop if he is to be taken serious. To put it bluntly, post after post from SuperTouch and other Fairey friends can't hide the fact that people are demanding answers.

What are your thoughts concerning this situation? Do you think Shepard Fairey honestly supports “fair use”? Or do you feel that he is only interested in --as the Phantom Street Artist calls it-- “Fairey use”? Did the Fair Use Project make a mistake in representing Shepard Fairey? What is your opinion of Shepard Fairey in general? What are your thoughts?

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

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
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