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

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Forum Topic: Is street art / graffiti art vandalism or should it be considered a right? How free is free speech?

I want to tackle two issues with this entry and hope to obtain feedback from readers. The first-- is street art / graffiti art vandalism or should it be considered a right? The second-- how free is free speech according to the law?

Forum Topic: Is street art / graffiti art vandalism or should it be considered a right?

There has long been a debate concerning illegally placed art on public property. That said, the debate has reached a boiling point in recent months due to Shepard Fairey. I’ve been following Shepard Fairey’s court problems in Boston. The Boston police claim that Fairey illegally posted his artwork on city property in Boston leading up to his exhibit at the ICA and have also brought an outstanding warrant from years ago to the table. Some of the charges have been dropped-- however, Judge Eleanor Coe Sinnott has ruled that Fairey will face 10 counts of felony vandalism charges. Rumor has it that there may be additional charges as well.

The case has spurred debate about the validity of illegally placed works of art. One side feels that illegally placed art should not be considered vandalism and should be considered free speech while the other feels that support for the illegal activity of famous artists, such as Shepard Fairey, will spur others to create art in illegal spaces. Supporters of illegally placed art feel that charging street/graffiti artists with a crime inhibits freedom of speech . Supporters of the law feel that artists should take more responsibility for how they promote themselves and their visual message while acknowledging that public property is just that, public, not the ‘canvas’ for one individual regardless of emotive or aesthetic reasons.

One interesting aspect about this specific case is that Shepard Fairey’s lawyer has stated that the image in question is readily available on the Internet and that anyone could have put the illegally placed works up after downloading the poster in order to paste it or create stencils with it. In fact, Fairey’s www.obeygiant.com offers posters as downloads-- along with warnings about not placing works illegally. Fairey’s lawyer also claims that anyone can buy Obey stickers and that Fairey has no control over how people use them-- which is understandable. However, I think there is more to the story.

On obey giant.com Shepard Fairey states, “Please use common sense and consideration when applying stickers or other propaganda materials. Giant is designed to provoke thought about the mechanics of the system we live in…not to destroy it. Everyone has to live here.”. However, Fairey has also posted video clips of his illegally placed works in progress-- including videos of he and his crew fleeing from police. Apparently those videos are no longer available on the site. Thus, one could say that Shepard Fairey is sending a very mixed message to fans and that his lawyer is trying to pin the illegal activity that occurred in Boston on Obey fans-- rather than Shepard Fairey taking responsibility and standing up for his work.

The issue of responsibility is at the core of this case. One interesting fact is that members of the street art and graffiti community have spoken out against Shepard Fairey’s actions in Boston. For example, Joey Krebs who is known as the LA Phantom and Phantom Street Artist has been very critical of Fairey’s actions-- including the commercialization of street art that has been fueled by Obey Giant Art Inc..

Krebs suggests that if Fairey truly believed in his visual message he would stand up for his work, admit what he has done, and take responsibility for it-- as most street and graffiti artists do in situations like this. In Krebs opinion the fact that Fairey has blamed the public, specifically fans, for his illegally placed works takes away from his street credibility. That said, the Phantom suggests that Shepard Fairey only has respect within the commercial aspect of the street art / graffiti community. He has stated that without risk-- and accepting risk-- street art and graffiti art is without purpose.

As the Phantom Street Artist has pointed out, most street/graffiti artists are not arrested over a dozen times and released so easily. Thus, Krebs feels that Fairey receives ‘get out of jail free cards’ due to his corporate connections and investors. Krebs also suggests that Fairey is speaking the language of corporations and money rather than an authentic message for the masses-- or minority groups that Fairey tends to appropriate images from. In other words, Krebs feels that Fairey is not really a representative of the street art and graffiti art community-- but is instead a representative of the commercialization that has bastardized the movement.

It is evident that many street and graffiti artists understand the law and view that as part of the process-- as a part of their history. In other words, some feel that the commercialization and legalization of all forms of street and graffiti art actually takes away from the movement that so many individuals have taken part in. In a sense, if current illegally places works were to be made legal it would take away from the impact of the works and the message they communicate visually-- in other words it would be a contradiction of the street art and graffiti art movement in general.

With this in mind I would say that most street and graffiti artists do not view their work as vandalism. However, that does not mean they view their work as a right either. In fact, I would say that many would agree that the power of illegally placed work is the fact that the artist is communicating in a way that challenges the law and the limits of free speech. One could suggest that is the very foundation of the movement. In other words, if it becomes lawful for artists to place work anywhere they desire-- if it is considered a right-- doesn’t that mean that both forms of expression would need to be redefined? What are your thoughts? Should all public property be an outlet for creativity? Should it be a right rather than a form of rebellion?

Forum Topic: How free is free speech?

I always find it interesting when the idea of free speech comes up in cases like this. Shepard Fairey is suggesting that he has a right to free speech concerning where he places his art and also for images that he uses without giving credit or compensation to copyright owners-- what he communicates within his art involving those works. That said, how free is free speech in the first place? We all know that there are some things you simply can’t communicate due to laws and other restrictions.

Should all messages, including those that are currently considered to be hate crimes, be free to be spoken verbally or visually in public spaces? My point is that when it comes down to the line there are limitations on freedom of speech no matter how much bravado you display in a court of law or how many sabers you rattle within the art community. Keep in mind that the laws that we have generally reflect the desires of the public. Thus, there will always be limitations and restrictions on free speech even if we don‘t openly admit it. What say you?

The way I see it-- if Shepard Fairey honestly feels that artists should have the right to place works anywhere within the public space and that to restrict artists with laws is an attack on free speech, he should have no problem with street artists placing their work outside his front door-- perhaps on the sidewalk in front of his gallery or in public locations outside of his exhibits at other galleries the same day of his opening. Is that not free speech?

Would he welcome street artists who choose to create works questioning his ethics to place their work on public property near his exhibits or near the Obey Giant Art Inc. HQ? If the Phantom Street Artist and others were to pay those public spaces a visit with visual criticism would Fairey welcome them with a wave and a smile? Would Fairey accept that-- I doubt it. So what is he really asking for? Freedom for his own message? Or freedom for all?

www.myartspace.com/forum

Take care, Stay true,

Brian Sherwin
Senior Editor

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

Street Art Defacement: Appropriate Media vs. Banksy

Photo: Appropriate Media. www.appropriatemedia.net

An early piece by graffiti artist Banksy has been defaced by a group calling themselves Appropriate Media. The piece, titled The Mild Mild West, was located in Stokes Croft, Bristol. Appropriate Media ‘splashed’ the piece with red paint. The group proclaims that they will continue to deface works by Banksy. Appropriate Media mockingly suggests that they will continue to present ‘alternative versions’ of works by the artist. The works by Banksy are often considered alternative landmarks and have been known to increase the value of property.

The actions of Appropriate Media are eerily similar to an individual-- though later revealed as a group-- known as ‘The Splasher’. The Splasher targeted works by Banksy, Anthony Lister, and other renowned graffiti and street artists on the streets of New York City from 2006 to 2007-- it is believed that two individuals who tried to sabotage a Shepard Fairey exhibit in 2007 by lighting a stink bomb were also members of ‘The Splasher’. At the time Fairey proclaimed that the duo were “just jealous" of his art. The group retaliated by leaving a manifesto at another Shepard Fairey exhibit in NYC.

The Splasher group often left manifestos near the works they defaced. These manifestos detailed the purpose of the group-- which often proclaimed that the ‘commercial driven street art movement’ is a ploy to further gentrification in New York neighborhoods. In other words, members of The Splasher felt that Banksy, Shepard Fairey, and other mainstream accepted graffiti and street artists were working alongside gallery owners and city organizers in order to push low income families out of neighborhoods due to the increased property values that result from more affluent individuals moving into the community.
Photo: Appropriate Media. www.appropriatemedia.net

Oddly enough, Appropriate Media’s manifesto covers some of the same issues. The manifesto, though short, can be found on the Appropriate Media website:

“In the early hours of this morning, Banksy's 'Mild Mild West' on Stokes Croft in Bristol (UK) was repainted by a member of Appropriate Media, presenting an alternative version of this 'alternative Bristol landmark'.

Through this action, Appropriate Media asks? What is the value of street art??. How much time and money will be spent to restore this urban 'masterpiss' by urban masterpisser, Banksy.

Come on, you only care about it cos its a Banksy and he sells his lazy polemics to Hollywood movie stars for big bucks.

Come on, you only care about it cos makes you feel edgy and urban to tour round the inner city in your 4x4, taking in the tired coffee table subversion that graffiti has become.

Graffiti artists are the copywriters for the capitalist created phenomenon of urban art. Graffiti artists are the performing spray-can monkeys for gentrification.

We call for the appropriate and legitimate use of public and private property.

We are taking matters into our own hands

We will not seek permission

We will retaliate”

Appropriate Media has described Banksy and other mainstream street artists as “poor little middle-class white boys”. The group suggests that mainstream street artists are “self obsessed” and that “Never in the field of human history has so much paint been used by so many to say so little.”. The group also suggests that mainstream street artists have exploited the struggle of minority groups, stating, “are you making parallels between the struggle of black people with centuries of racism and the struggle of poor little middle class white boys with the need to deface private property?”.

Needless to say, members of the group demand that artists, such as Banksy, stay out of their communities and return to their “leafy suburbs“. Again, the words of Appropriate Media are eerily similar to those of The Splasher.

Photo: Appropriate Media. www.appropriatemedia.net

I doubt that The Splasher and Appropriate Media are connected aside from their shared beliefs. After all, one group is located in the US and the other group is located in the UK. However, the fact that two organized groups have challenged world renowned street artists in this manner reveals the unease that some individuals-- even within the street art community-- have for the commercialization of street art and what can result from it.

I think it is naive to write these groups off as “just jealous”. After all, they are anonymous aside from having a collective name. They don’t profit from their actions either. One could say that their actions are selfish-- but the flip-side of that coin is that they can also be viewed as selfless. They are placing themselves at risk for something they believe in-- sound familiar? The only difference is that their actions are the essence of rebellion rather than a form of commercialized rebellion involving the fame and wealth of an individual. Food for thought.

It is common for people to compare mainstream street artists-- such as Banksy and Shepard Fairey-- to ‘Robin Hood’. With that in mind, one could say that groups like The Splasher and Appropriate Media are like Robin Hood as well. After all, they are driven by passion and take action for what they view as an attack on low income communities. In their eyes they are 'stealing' something from the rich in order to show support for the poor. The only problem with this is that these two groups have, in a sense, stolen from everyone. Or have they? What say you?

Consider this an open topic on street art, the commercialization of street art, gentrification, and the defacement of art as protest.

Links of Interest:

Banksy backlash as protest defaces 'middle class' grafitti -- Telegraph UK
www.telegraph.co.uk/culture/art/5124049/Banksy-backlash-as-protest-defaces-middle-class-grafitti.html

Somerville’s only Shepard Fairey mural vandalized -- Wicked Local
www.wickedlocal.com/somerville/news/x549598518/Somerville-s-only-Shepard-Fairey-mural-ruined

The Splasher -- Myartspace blog
www.myartspace.com/blog/2007/05/art-space-news-splasher.html

Banksy Splashed Out in Melbourne -- Banksy
www.myartspace.com/blog/2008/12/banksy-splashed-out-in-melbourne.html

This gag sure stinks: Artist turns up nose as bomb ploy flops -- NY Daily News
www.nydailynews.com/news/ny_crime/2007/06/23/2007-06-23_this_gag_sure_stinks_artist_turns_up_nos.html

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 4

Part 1
Part 2
Part 3


Copyright is very important concerning the market and technology of today. People talk about how “fair use” needs to be extended due to the technology of today-- they feel that an extreme interpretation of “fair use“ is needed to secure creative freedoms. They often forget to mention the ease in which an individual can make reproductions from images found online today and the fact that many of the artists advocating for extended “fair use“, such as Shepard Fairey, profit from the random images they find online.

They are waving the banner of creative freedom when in reality the focus is on profit and profit alone-- their profit. Profit with total disregard for the profit and market of their peers. That is why Shepard Fairey is a target for my criticism-- and why he will continue to receive criticism until he takes responsibility. Unfortunately, he tends to use his charity work as a shield or resorts to having his friends rattle sabers when faced with criticism.

The fact remains that a skilled artist can use computer programs to alter an image they found online in order to suggest that it is his or her own-- or he or she can simply print off copies of the image in order to make changes to it. That is not to suggest that artists using these programs are not artists or that certain aspects of computer based art is of no value. It all comes down to responsibility and respect for other artists.

Shepard Fairey, to me, represents artists who display neither. Those who support his extreme view of “fair use” either don’t care about how hard it is for artists to establish a market for their work or they embrace his practice within their own methods of artistic creation involving works for profit.

My issue with extended views of “fair use” is that an emerging artist can spend months or years working on an oil painting or sculpture only to end up with another artists using an image of that painting or sculpture for a project that may have only taken days to create. In a sense, you could say that the artists working in traditional mediums need to have their work protected from the technology of today. Telling those artists not to upload images online is not the answer.

All artists deserve to gain exposure online knowing that their work is protected by strong copyright. There is room for “fair use” as long as it is limited and does not destroy or burden the business of emerging artists before they have a chance to rise on their own. Unfortunately, copyright is constantly under attack.

As mentioned earlier, more artists than ever are making a living or part of their living from selling their art. These artists need to know that their images are protected. Their collectors need to know that their investment is secure. In other words, artists must be able to defend the exclusive rights to their art-- to their business and legacy. If Shepard Fairey wins against the AP it will be yet another blow to artists who desire to embrace the market aspect of art. Throw the romantic image of 'the artist' aside! The idea that art should not involve business is a fantasy when one consider the art market of today-- Fairey knows this. So do I.

That is why so many art organizations and individuals have stood against orphan works legislation in recent years due to the fact that if passed the legislation would have greatly reduced the ability of living artists to protect and defend their art in court. Those same people should stand against artists like Shepard Fairey who fly false banners of ‘artistic freedom’ and ‘free expression’ during legal cases involving copyright infringement.

After all, the artists who cry ’artistic freedom’ and ’free expression’ when exposed for copyright infringement often do it in order to protect their profit rather than the way in which they work. Look at Shepard Fairey’s lawsuit against the AP-- it makes it clear that he desires to protect the profit made from the image as well as future profit. The issue is not necessarily about the AP-- the fact remains that Fairey could have done this to a fellow artist as he has done in the past.

Again, if the AP loses to Shepard Fairey it will mean that the door will be open further when he decides to ‘reference’ artwork by an emerging artist. If he wins against the AP it will set a precedent that will greatly harm the ability for all artists to defend their copyright in court. I can't stress this enough!

I realize that copyright issues can quickly become a debate between freedom of speech/expression and control. However, suggesting that supporters of strong copyright are attacking creative freedom is not exactly fair considering that the issue of copyright infringement does not become an issue until price tags are involved.

If an artist wants to explore the work of another artist directly, fine-- it becomes an issue when the artist attaches a price to the ‘new’ image or produces prints of the ‘new’ image for profit. We would not be facing this debate if it were not for the fact that some individuals-- Shepard Fairey for example-- think that it is acceptable to profit off of the hard work of others. His case against the AP is not about creative freedom or any of the other similar rhetoric spewing from his lips-- it is about his desire to profit off of others without consequence.

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 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“. They want the best of both worlds. Point that out and those artists will often flee from a debate on this issue.

Think of it this way-- many of the artists who support an extended view of “fair use”, such as Shepard Fairey and Joy Garnett, are the same artists who create art utilizing the work of others for profit. They are represented by galleries-- they know the business side of art. So are they really champions of freedom and free-culture? Or are they just protecting their own business by supporting standards that would make it harder for other business-minded artists to protect their images from their use? If it is not about profit you would think they would be more than willing to 'spread the wealth' with the artists and photographers they 'reference'.

Don’t get me wrong, “fair use” is important-- however it should not be extended to the point that a widely known artist can base his or her career working directly from artwork by relatively unknown artists-- and other individuals-- for profit. This is why I have concerns about Shepard Fairey and what he represents. The contradictions and hypocrisy is tiresome. I’m not attacking creative freedom with my opinion-- I’m standing up for what the majority of artists have fought long and hard for. Don’t confuse creative freedom with the need for some artists to profit off of other artists.

To put it bluntly, it is going to be horrible if artists allow their rights to be stamped out in the name of creative freedom when the artists leading this charge, such as Shepard Fairey, are thinking more about their bank accounts than real creative freedom. Since when did creative freedom involve the need to profit from others? Are we defining creative freedom by dollar signs now? Let us not confuse the two! We should examine what Shepard Fairey is really saying when he uses these powerful words-- “creative”, “freedom”, and "expression".

In my opinion, he is seeking the freedom to be creative with the work of other living or recently deceased artists-- and others-- in order to profit without consequences. He desires the freedom to go against their intentions and legacy while expecting others to ‘obey’ his intentions and legacy. He is no different than the people who strongly supported aspects of the recent orphan works legislation which would have harmed the ability of living artists to protect their art. It is as simple as that. If we define ‘artistic freedom’ and ’free expression’ with a dollar sign the arts are truly doomed.

I must stress this-- If Shepard Fairey/ Obey Giant Art Inc. wins against the AP it will set a precedent that will make it easier for individuals and corporations to abuse the copyright of visual artists and other creative professionals. Make a stand-- disobey Shepard Fairey. Let people know that not everyone in the global art community supports Shepard Fairey's extreme interpretation of "fair use" for profit. Think of the past allegations that have shadowed his career-- think about what a victory against copyright could mean for your career. Support the exclusive rights that the majority of artists have fought hard for.

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 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

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 1

Shepard Fairey has addressed some of the allegations against him by posting a statement on his website. The message, titled ‘The AP, OBAMA & Referencing’, is an attempt to challenge the allegations against him concerning the AP. Fairey’s message is also an attempt to connect his use of the Obama photograph to art history. I warn you that this will be long-- I can't help it. Someone has to say what needs to be said and far too many people are worried about dents in popularity if they speak out. I don't care who I'm in favor with-- I know where I stand.

In the message Shepard Fairey declares that he is fighting against the Associated Press in order to “protect the rights of all artists”. Thus, his message is also an attempt to rally support from the visual art community. In other words, Shepard Fairey is attempting to say a lot with what little he is allowed to say due to the case. Unfortunately, it is what he does not say that should alarm the global visual art community. WAKE UP!

To be fair please read Shepard Fairey’s message in its entirety in order to draw your own conclusions. Then, by all means, read my opinion and see where you stand. Before I go further I must thank Qi Peng and Marc Schiller-- recent debates with these two individuals on Twitter spurred me to investigate Shepard Fairey further.

Done? Good. Throughout the message Shepard Fairey makes bold statements about ’artistic freedom’ and ’free expression’. He suggests that all artists will lose some of their rights if he loses against the Associated Press over the issue of copyright infringement. My take is that artists stand to lose more if Shepard Fairey wins his case against the Associated Press.

My opinion is that if the AP loses to Shepard Fairey it will mean that the door will be open further when Fairey decides to ‘reference’ artwork by an emerging artist or any artist that is not widely known. If he wins against the AP it will set a precedent that will greatly harm the ability for all artists to defend their copyright in court.

Fairey stated, “The Garcia photo is now more famous and valuable than it ever would have been prior to the creation of my poster. With this factor in mind, it is not surprising, that a gallery in NYC is now selling the Garcia photo for $1,200 each. As I understand it, Garcia himself did not even realize the poster was created referencing his photo until it was pointed out to him a full year after the poster came into existence. Mannie Garcia has stated in the press that he is an Obama supporter pleased with the poster result."

Shepard Fairey failed to mention the name of the gallery in his message. The gallery is Danziger Projects. The owner of the gallery, James Danziger, contacted Mannie Garcia on January 21st 2009. Danziger informed Garcia that his AP owned photograph had served as the basis for Shepard Fairy’s “HOPE” and “PROGRESS” posters. Fairey failed to mention that Mannie Garcia has stated that he does not like it when photographs are "ripped off"-- he has said that Fairey's Obama poster is a special case. Fairey also failed to mention that the “gallery in NYC” has represented some of his own artwork in the recent past.

I have to agree with Shepard on this one-- I doubt he was surprised at all that Danziger Projects is now selling prints of the photograph for $1,200. Just as I’m sure that Anthony Falzone was not surprised when he included the sales at Danziger Projects in Fairey’s preemptive lawsuit against the AP in order to ‘prove’ that the market for the photograph has increased due to Fairey’s use of the image. Take that for what it is worth…
Fairey states, “I did not create the Obama poster for financial gain. The poster was created to promote Obama for president, and the revenue from poster sales was re-invested in more posters, flyers, stickers, etc.., and donated to charity, including the Obama campaign.”

Unfortunately, Shepard Fairey failed to work under the umbrella of a charity group. In most cases if someone desires to raise money for a cause they will do so in direct partnership with a non-profit. The non-profit will handle the money instead of the individual-- in this case Shepard Fairey. My understanding is that Fairey handled the majority of the profit directly and then allocated it as he wished. Thus, Fairey did profit.

Think of it this way-- if you donate your entire paycheck to a cause does that mean you did not profit from your employer? No. You made profit-- you earned your paycheck-- you just decided to do a great deed with that profit. My point being that the money Shepard Fairey earned from his Obama prints and Obama merchandise is profit no matter how he attempts to slice it.

Fairey states, “A free download of the Obama image was available on my website, which should provide further evidence of the desire to disseminate the image, not to benefit financially.”

Unfortunately, Shepard Fairey failed to mention that he often has free downloads available on his site-- he also makes sure to have copyright information listed on every page of his site. Including the page where the downloads are offered. He also fails to mention some of the veiled legal threats he made in 2008 concerning artists who made parodies of his Obama posters. In fact, in one article he suggested that after the campaign he would go after ‘bootleggers’ and other who profited off of the image or variations of the image.

Obviously Shepard Fairey was interested in profit and in silencing those who referenced his poster for their own form of social commentary. One could say that though he may not have put any of the profit from the image in his own pocket he most certainly did want to secure his investment in the image.

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

The Phantom Street Artist speaks out against Shepard Fairey in Citizen LA

The Citizen LA cover is a collaboration between Rick Mendoza and Joey Krebs aka The Phantom Street Artist. www.citizenla.com

As mentioned on the Myartspace Blog the Phantom Street Artist is actively challenging the ‘street cred’ of artist Shepard Fairey. In my article, titled ‘Shepard Fairey Dodges Criticism at ICA: Street Artists and Copyright Advocates Demand Answers‘ , I mentioned that some street artists are furious concerning the commercialization of street art by Shepard Fairey and his business associates. Unfortunately, their voice has not been heard widely-- even on the majority of websites and e-zines dedicated to street art.

For that article I asked Joey Krebs aka Joel Jaramillo, aka Caine 2, aka the LA Street Phantom, aka The Phantom Street Artist about some of the statements Shepard Fairey has made about his work for Pepsi, Saks, and other companies. The Phantom Street Artist told me that he and others close to him feel that Shepard Fairey is “buying status and staking claim in a world that refuses to recognize him.” Krebs then told me, "The media does not represent the voice of the street. It represents the money of those who want to be recognized on the street.". He went on to say that Fairey is, “privileged, self entitled and self consumed.”. Needless to say, The Phantom has been very critical of Shepard Fairey‘s art, practice, and ethics.

For my article The Phantom Street Artist mentioned that he would like to “challenge” Shepard Fairey-- stating, “I want to challenge his point of view, his beliefs and his values in a dual of sorts. I want to challenge him physically, mentally, and perceptually.“ Krebs then told me, “This is the chance for him to win the character approved award by his colleagues-- true street artists. The challenge match is a physical as well as a conceptual performance.”.

I then asked the Phantom Street Artist if he felt that Shepard Fairey would meet his challenge concerning credibility on the streets. The Phantom responded, “There is no risk if you do not risk yourself. This is not a game of perception being managed and defined by publicist and public relations officers. These money fed publicists failed to realize that media is nothing other then the perception of opinion formed in management.”. In a sense, the Phantom Street artists feels that Shepard Fairey, with the help of a media relations machine, has bastardized the street art movement.

The Phantom Street Artist’s “character approved” statement was a jab at the USA Networks “ Character Approved Award ”, an award given by the USA Network to the most “remarkable, imaginative and innovative characters”-- Shepard Fairey won the top slot for the 2009 art category. Needless to say, the Phantom Street Artist does not feel that Shepard Fairey’s art is remarkable, imaginative, or innovative as far as street art is concerned. In fact, he feels that the award given by the USA Network to Shepard Fairey is a prime example of how corporations are claiming street art for profit and marketability with Shepard Fairey serving-- or should I say obeying -- as a corporate spearhead.

The Phantom Street Artist at work.

The words of the Phantom Street Artist have not went unheard. Citizen LA , a monthly arts & lifestyle publication that strives to support and sustain cultural diversity in Los Angeles, has acknowledge the Phantom Street Artist’s criticism of Shepard Fairey and his call for a "cage match" between the two with "street cred" in the balance-- a performance of sorts that would also serve the purpose of raising money for charity. Both artists have experience with fundraising. The Phantom helps to operate Art Saves Lives, www.artsaveslives.net, a non-profit dedicated to helping the homeless through art. Will Shepard Fairey meet the Phantom's challenge?

The Citizen LA article/interview touched on several other issues concerning the Phantom's criticism of Shepard Fairey. Heidi Hutchinson, reporting for Citizen LA, recently conducted an interview with the Phantom Street Artist titled, RAGE AGAINST THE SHEPHERD FAIREY PROPOGANDA MACHINE. In the interview the Phantom Street Artist explains to Hutchinson that Shepard Fairey does not represent the voice of the “populace” and is instead the “voice of the Elitist Media disguised”.

In his interview for Citizen LA the Street Phantom goes on to suggest that Shepard Fairey is nothing other then a “consumer being consumed” by buying media time, buying publicity, and buying legal representation. The Phantom states that Fairey has done this to “justify his infringed violations” in order to “present himself as a legit street artist.” The Phantom went on to say that Shepard Fairey and Obey Giant Art, Inc. are “exploitive media whores jacking references from historic cultures for their own selfish interests.”

According to the Citizen LA interview The Phantom is also critical of the ICA retrospective of Shepard Fairey's career. The Phantom feels that the Institute of Contemporary Art in Boston “conjured” a 20 year retrospective with total disregard for Shepard Fairy’s “unapologetic infringed actions”. The Phantom views this as “a sign of the degeneration of our society and culture which is being conformed by mediocrity by the likes of Shephard Fairey and OBEY as well as his publication SWINDLE as the true life metaphor to inveigle beliefs systems and values all in the interest of mammon.”.

The Phantom’s message is clear-- he feels that Shepherd Fairey is no different than the entities he has spoke out against visually. In the Citizen LA interview he describes Shepard Fairey as the “poster boy for Big Brother”-- stating, “The media is run by elitists to manipulate public opinion. They’ve also overtaken the independent media, including Satellite Radio.”.

The Phantom then mentions that the real meaning of Fairey’s art is the power of propaganda as far as branding and commerce is concerned. He explained to Hutchinson, “OBEY has no responsible message other then to brand self promotion in the self interest of commerce.”-- an opinion that is shared by many street artists who are wary that the history of their ’culture’ as well as the power of the messages they leave are threatened by commercialization.

In the Citizen LA interview The Phantom states that Shepard Fairey’s actions is the “epitome of rape,” based on his ravaging of “important historical and revolutionary cultures, ideas, concepts and visions” for profit. According to Citizen LA The Phantom-- born to first generation immigrants from Ecuador-- feels that Shepard Fairey is "demeaning" the integrity of the “referenced” works as well as the voice of disenfranchised cultures from which they emerged by altering images without credit. The Phantom finds it offensive that Fairey has “referenced” works from Latino cultural history for profit-- stating in the Citizen LA interview, “He’s making a novelty out of degrading our historical cultural imagery.”.

Concerning Shepard Fairey’s case against the Associated Press the Phantom stated, “If visual artist or merchandisers like Shepard Fairey can cite “fair use” only in the interest of protecting their corporate interest of profit, we have lost the value of “fair use”. Phantom explained to Citizen LA that people should not sit back while Shepard Fairey exploits “fair use” for profit-- stating, “Fair Use protects language and true social commentary without suffocating independent voices.”. The Phantom went on to suggest that if Shepard Fairey wins his case against the Associated Press it will kick open the door for the exploitation of “fair use” by the rich and powerful.

Needless to say, the Citizen LA interview with the Phantom Street Artist is a must read for anyone who has been following the chaos involving Shepard Fairey. The article gives some great details about the Phantom's upbringing, street roots, and other insightful information about the artist. The Citizen LA website, www.citizenla.com, contains several other stories and interviews of interest. Do check them out.

For those who don’t know, The Phantom Street Artist is a Los Angeles based street artist who is widely known for creating art that was used on the cover of the Rage Against the Machine album titled The Battle of Los Angeles. The Phantom directed two videos for Rage Against the Machine, 'Bulls on Parade', and 'Renegades of Funk,'. Both videos were awarded by MTV. The Rage Against the Machine album and videos feature the Street Phantom’s signature artwork-- a lone silhouette, which the Phantom explains represents the “Public Everyman“.

The Phantom's criticism of Shepard Fairey offers the hope that maybe the voice of the 'everyman' can be powerful enough to go against the grain of media sensationalism and the cult of personality. Personally, I do hope that the Phantom and Shepard Fairey have an 'art bout' for charity. It would be interesting to observe the two match wits and talent for a good cause.

Update: This write-up is a review of the article/interview that the Phantom had sent to me. According to the Phantom, Citizen LA decided to edit most of the content due to "fear of legal retribution". The Phantom suggests that Citizen LA took creative liberties with the presentation as a whole. Perhaps the Fairey Machine runs deeper than first expected-- or maybe there was just a lack of communication between the Phantom and Heidi Hutchinson? As the saying goes, "There are two sides to every story". It will be interesting to see how this story unfolds.

George Stiehl, the publisher of Citizen LA, has contacted me over the issue. He has stated that there was only one version of the piece. Stiehl suggests that the situation may be due to a misunderstanding or lack of communication. He made it clear that Citizen LA does not intentionally misrepresent their interviewed artists-- and that he hopes to solve the issue in an amicable manner.

That said, the version that was published was enough to spur a reaction. According to my sources an outspoken critic of Shepard Fairey was threatened after mentioning the Citizen LA Phantom piece on Facebook-- she has since pulled her criticism from Facebook out of fear of being physically harmed.

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

Criticism and Arrest of Shepard Fairey Sparks Conspiracy Theories

The arrest of Shepard Fairey in Boston and recent mainstream criticism of Fairey’s art has sparked a number of conspiracy theories. The conspiracy theories involving Shepard Fairey range from anonymous comments left by individuals on blogs to lengthy articles posted on SuperTouch and Wooster Collective. I suppose it is time to wear a tin foil hat-- or perhaps it is time for certain individuals to realize that Shepard Fairey is a controversial artist who openly admits to the illegal aspects of some of his work and that debate and criticism is bound to occur concerning his ethics and process.

The Shepard Fairey conspiracy theories involve several angles. Some feel that criticism of Shepard Fairey’s art and ethics is nothing more-- as SuperTouch assumes --than a “widespread and baseless internet campaign to smear Shepard Fairey”. Others, as mentioned on Wooster Collective, feel that his recent arrest was politically motivated-- a way for Boston police to incite a riot in order to get even with the Mayor of Boston over pay issues. Some comments suggest that the mainstream art world is trying to “keep Shepard Fairey down” while others suggest that Shepard Fairey is the victim of an attack on “fair use” spearheaded by the Associated Press.

The conspiracy theories don't stop there-- some individuals have promoted the idea, based on comments left on the The Huffington Post and Boston Globe, that recent criticism and the arrest of Shepard Fairey is nothing more than anti-Obama spin. In fact, some have suggested that President Obama should "pardon" Shepard Fairey of any crimes and make his work "exempt" from copyright and trademark laws in the future. In other words, some view criticism of Shepard Fairey as being criticism against President Obama’s administration and vision of ‘change‘-- and that Fairey should be "protected" because he helped spur Obama's 'change'. Some of those same individuals have suggested that McCain supporters are behind the negative criticism of Shepard Fairey or that Republicans in general are behind it. I’m certain that other conspiracy theories will arise in the coming weeks.

So far each conspiracy theory lacks one crucial factor-- they all fail to suggest that maybe Shepard Fairey should be responsible for his actions and choices. I think President Obama would support the idea of Shepard Fairey taking responsibility. Instead, these conspiracy theories project excuses for Shepard Fairey. Is it wrong to suggest that Shepard Fairey should be responsible for how he creates his art or for where he places it? Is it wrong for individuals to be concerned when videos posted on ObeyGiant and elsewhere have shown Fairey and his crew speeding off in cars in order to avoid cops in heavy populated areas? If he failed to appear in court in 2000 shouldn’t he be held accountable in the same way that any other citizen would be?

Furthermore, if Shepard Fairey places himself in situations that force individuals to question his ethics-- such as infringing on the copyright of Rene Mederos or sending cease-and-desist letters to artists who parody his widely known images under “fair use” while at the same time defending himself under "fair use" against the Associated Press -- should he not take some responsibility and own up to questions that have been asked of him? After all, we expect politicians and CEOs to be responsible-- so why not artists? Why not Shepard Fairey?

The truth is that there isn’t a mass conspiracy against Shepard Fairey-- in fact, he is to blame for much of the negativity that shadows his career due to his choices and failure to take responsibility for his actions and words. The contradictions are his own-- not created. Instead, there is a lot of paranoia going around and much of it has been spread by longtime supporters of Shepard Fairey. These individuals have spread conspiracy theories on the Internet in order to protect their interest by creating an ‘us versus them‘ scenario among fans of the artist. In other words, they strive to rally support from Shepard Fairey's fan base in order to contain negative criticism and promote the idea that Fairey is a rebel facing unwarranted opposition. After all, that image-- that persona -- helps to sell shirts and other merchandise.

True, you could say my opinion is a conspiracy theory in itself. However, there is consistent evidence to back my claim. Almost all of the major supporters who have fostered conspiracy theories involving Shepard Fairey have a vested interest in his career or a shared interest in his view of “fair use” and other issues-- such as promoting specific causes, selling specific magazines or merchandise, and promoting specific artists or theories about art. These individuals could lose ground in their respected businesses if Shepard Fairey ends up being ridiculed or loathed by the masses. He is their cash cow.

In that sense, one could say that Shepard Fairey is a problematic figurehead for some of these individuals. If Fairey is a success their business is a success-- if Fairey is a failure their work will be much harder-- he can't be replaced with the same momentum. In other words, Shepard Fairey is a bet that can result in great returns-- a gamble that can make or break their fortune. Thus, it is no surprise to me that the battle cry of support-- these specific conspiracy theories and the viral nature in which they spread -- often originate from their respected websites.

My point is that the words of Jamie O’Shea (SuperTouch) and others who strive to demonize individuals who are critical of Shepard Fairey’s ethics-- or who make up excuses for Fairey's lack of responsibility by placing him in the role of being a victim of “the Man”, “the system”, “conservatives”, “Republicans” or the “elite” -- only do so because of the position they would be in if Shepard Fairey is viewed as a “hack” or “fraud” by the majority of the public. Shepard Fairey’s failure in the eyes of the public would be bad for their business.

Needless to say, the defense of Shepard Fairey-- such as the SuperTouch article -- often appears to be a form of damage control. Under the surface it is nothing more than an attempt to protect a product. For example, the SuperTouch article posted by O’Shea was published on the same day that Dan Wasserman posted an article titled ‘How Phony is Shepard Fairey?’ on the Boston Globe website-- the same day that many were introduced to criticism of Shepard Fairey that they had not been aware of because the mainstream media had failed to report on it up until that time. Wasserman’s article focused on Mark Vallen’s criticism of Shepard Fairey-- it was the first time that Vallen’s critique had been mentioned on a mainstream news source that I'm aware of. It was long overdue. It comes as no surprise that the Fairey camp was quick to respond in kind.

The article by SuperTouch was posted days before Shepard Fairey’s opening at the Institute of Contemporary Art in Boston-- it ended up as a headline on Shepard Fairey’s ObeyGiant website within minutes of being posted by J O’Shea on SuperTouch. The article by Jamie O’Shea opened with the following introduction:

“As underground art phenomenon Shepard Fairey’s first major museum retrospective prepares to open at the Institute of Contemporary Art/Boston on February 6th, we feel the need to address some of the vicious and unfounded rumors surrounding the originality of Shepard’s artwork that have been floated online in recent years. Though written by a variety of different detractors for a questionable array of reasons, the common thread binding them all—aside from a thinly masked veneer of obvious envy in most cases—is a nearly ubiquitous lack of understanding of the artist’s use of appropriated imagery in his work and the longstanding historical precedent for this mode of creative expression.”.

The introduction alone is a vehicle for damage control and a source for fostering ideas of conspiracy. Again, it should be noted that the SuperTouch article was published on the same day that Dan Wasserman posted an article titled ‘How Phony is Shepard Fairey?’ on the Boston Globe website. Wasserman’s article focused on Mark Vallen’s criticism of Shepard Fairey-- which Vallen had posted in 2007. One could say that the SuperTouch article was more of a response to Wasserman's article than it was to Vallen's critique itself. Damage control.

The main target of Jamie O’Shea’s conspiracy theory is Mark Vallen-- an artist who has been critical of Shepard Fairey’s ethics for years. Oddly enough, Vallen’s article-- titled Obey Plagiarist Shepard Fairey-- ranks on the first page of Google searches for ‘Shepard Fairey‘. In other words, many people have read the article long before Wasserman mentioned it on the Boston Globe website-- dare I say that could suggest that perhaps many people agree with the views of Mark Vallen? In other words, one could suggest that many desire to see Shepard Fairey take responsibility and to be accountable when he is wrong.

Jamie O’Shea and other Shepard Fairey conspiracy theorists would have you believe that only a handful of people are critical of Shepard Fairey. After all, O’Shea and SuperTouch-- where Shepad Fairey is also an author-- suggests that Mark Vallen and other “detractors” have orchestrated a smear campaign due to being jealous or bitter of Shepard Fairey. Are we to assume that Shepard Fairey is beyond criticism? Are all art critics jealous or bitter if their words about an artist are harsh? Are we to believe that only a small band of individuals question the ethics of Shepard Fairey? To that I would say-- making demons out of people who are critical of Shepard Fairey’s art and practice is not exactly the best way to defend the validity of his work-- or the importance of your business.

Jamie O’Shea has long been a crucial figure in the hype surrounding Shepard Fairey. Thus, his words come off more as concern for his investment than anything else. To put it bluntly, Jamie O’Shea does not want people to view Shepard Fairey as an unethical artist-- an artist who steals from minority artists or social causes for his own financial gain and a stairway to fame as suggested by Mark Vallen. O’Shea and others want to foster the idea that Shepard Fairey is a hero of the people and a revolutionary of visual art. Thus, it makes sense that he and others would want to chip away at Vallen's character and his critique-- to silence criticism of Shepard Fairey before it grows out of hand.

When thinking of this one must put everything in perspective-- indeed, one must question everything. Jamie O’Shea was one of the first individuals to publish reviews and interviews with Shepard Fairey. He has also curated and co-curated exhibits involving Shepard Fairey's art.
Different sources state that O’Shea works as an art consultant for corporate collections-- connecting artists in his favor with corporate art collections. If people question the authenticity of Shepard Fairey they may very well question the authenticity of Jamie O’Shea's opinion and business ventures. Thus, it makes sense that he would want to spread conspiracy theories about a "widespread and baseless internet campaign to smear Shepard Fairey," in order to combat criticism of Shepard Fairey-- his interest, investment, and product.

Consider this an open debate about the responsibility-- or lack thereof -- of Shepard Fairey and the conspiracy theories that place him in a ‘victim’ role. Consider it an open debate about the commercialization of street art-- feel free to discuss ethics-- or the lack thereof. By all means, comment if you feel that my approach is not ethical or responsible.

Links of Interest:

Was Shepard Fairey Arrested To Embarrass The Mayor of Boston? - A First Hand Account -- Wooster Collective: a celebration of street art
http://www.woostercollective.com/2009/02/shepard_faireys_arrest_in_boston_a_first.html
Finally: Shepard Fairey Conspiracy Porn -- Bostonist
http://bostonist.com/2009/02/10/shepard-fairey-bpd-conspiracy.php

How Phony is Shepard Fairey? -- Boston Globe
http://www.boston.com/bostonglobe/editorial_opinion/outofline/2009/02/how_phony_is_shepard_fairey.html
Obey Plagiarist Shepard Fairey: A Critique by Artist Mark Vallen
http://www.art-for-a-change.com/Obey/index.htm

The Medium Is The Message: Shepard Fairey And The Art of Appropriation -- SuperTouch
http://www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/#respond

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

I Predict a Fairey Right? -- Beautiful Crime
http://beautifulcrime.com/news/i-predict-a-fairey-riot/

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com

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

Shepard Fairey Dodges Criticism at ICA: Street Artists and Copyright Advocates Demand Answers

There was a Q&A session between Shepard Fairey and Fogg Museum curator Susan Dackerman before the public opening of Fairey’s exhibit at the ICA. The Q&A session had one stipulation-- questions were not allowed from the crowd. Apparently Dackerman asked repetitive questions concerning Fairey’s street art, his Obama campaign contributions, and meeting with Obama-- information that has been regurgitated by the press for months. She failed to ask questions about the recent copyright infringement allegations against the artist and failed to question his view of fair use and copyright in general-- two issues that have long shadowed Fairey‘s career and are as much of his history as an artist as anything else.

Fairey had a great opportunity to tackle issues that fans and critics alike had hoped he would address-- issues concerning fair use and the various copyright allegations against his art in recent years. One can only assume that he intentionally dodged talking about issues that are crucial to understanding his art and the thoughts behind his process. Needless to say, many feel that these issues should have been addressed-- especially since the exhibit covers the entirety of his career.

Fairey did mention what he called “accusations of plagiarism” briefly-- but quickly addressed other topics. He stated, “A lot of my work derives its power from the ways I’ve changed the message,” followed by, “I think it’s an important part of a pop culture dialogue.”. Dackerman failed to push Fairey further on the issue as she had done with other topics during their discussion. Again, questions from the audience were not allowed.

The issue of copyright infringement and debatable claims of fair use that have shadowed Shepard Fairey’s career may have not entered his Q&A session with Susan Dackerman-- but they certainly shadowed him from outside of the ICA. As Shepard Fairey answered soft questions inside the museum a small gathering of artists, photographers, and writers demanded answers concerning allegations of plagiarism and copyright infringement involving Fairey.

The crowd of copyright supporters mentioned that they did not think Shepard Fairey would answer tough questions about his alleged infringement of an AP owned photograph or other copyright infringement allegations involving artists such as Rene Mederos. Needless to say, their questions went unanswered. The voices of the people on the street were not heard by the street artist who comfortably addressed soft questions inside.

Inside Dackerman asked Fairey about why he decided to support the Obama campaign. Fairey replied by saying, “I could not stand by and watch the Bush administration destroy the principles this country was founded on and not say something.” His bold statement was met with applause from the audience. It would have been a good time for Dackerman to press Fairey on allegations of copyright infringement since many of the Founding Fathers of the United States acknowledged the Statute of Anne (1710) and were supportive of the Copyright Clause (1787) of the United States Constitution. She failed. It would have also been a good time for Dackerman to ask Fairey about his opinion concerning President Obama’s support of the Anti-Counterfeiting Trade Agreement (ACTA)-- which could result in alleged copyright infringers being banned by their Internet Service Provider. Again, she failed.

When asked about his work with corporate clients like Saks and Pepsi Fairey stated that he acknowledges that, “in a capitalist society, art and commerce are always going to need each other” and that his goal is to make marketing art when working with corporate clients. Fairey explained to the audience that the income he receives from the corporate campaigns allows him to have complete freedom when creating art for a gallery or art on the streets. Fairey went on to suggest that artists lacking funds are more apt to bow to market forces.

Shepard Fairey has also been noted as saying “When you do work on the street, the act is one of defiance that’s automatically embedded in the work no matter the content,”. Followed by, “When you go into the gallery, obviously it’s a designated space and the work is not illegal. But there’s still the content of the work that I think communicates my ideas. Even though I spend more time on the gallery stuff, with more depth and layers, it still has the spirit of the street techniques.” during the session.

I asked Joey Krebs aka Joel Jaramillo aka the LA Street Phantom aka The Phantom Street Artist about Shepard Fairey’s statement. Krebs is a Los Angeles based street artist who is widely known for creating art that was used on the cover of the Rage Against the Machine album titled The Battle of Los Angeles. The Phantom Street Artist told me that he and others close to him feel that Shepard Fairey is “buying status and staking claim in a world that refuses to recognize him.” Krebs then told me, "The media does not represent the voice of the street. It represents the money of those who want to be recognized on the street.". He went on to say that Fairey is, “privileged, self entitled and self consumed.”

The Phantom Street Artist then mentioned that he would like to “challenge” Shepard Fairey-- stating, “I want to challenge his point of view, his beliefs and his values in a dual of sorts. I want to challenge him physically, mentally, and perceptually.“ Krebs then told me, “This is the chance for him to win the character approved award by his colleagues-- true street artists. The challenge match is a physical as well as a conceptual performance.”

I then asked the Phantom Street Artist if he felt that Shepard Fairey would take a risk. The Phantom responded, “There is no risk if you do not risk yourself. This is not a game of perception being managed and defined by publicist and public relations officers. These money fed publicists failed to realize that media is nothing other then the perception of opinion formed in management.” He then shared a video with me in order to stress how real street artists view Shepard Fairey and his art:


All City Crew - Art Basel Miami 2008 from fi5e on Vimeo.

Susan Dackerman failed to ask questions of importance concerning the span of Shepard Fairey’s career. After all, Obama and the influence that Obama had on Fairey’s art is only a recent part of Fairey’s history as an artist. She failed to obtain answers to the questions demanded by the small crowd of copyright supporters outside the ICA. She failed to obtain answers concerning the low opinion that many street artists have of Shepard Fairey. She failed to answer questions that honestly reflect the history of Shepard Fairey’s art. She failed at her task and Shepard Fairey failed to make a stand.

I suppose you could say that Shepard Fairey had answered in the only way he knows how before the opening. After all, Shepard Fairey and his crew ’bombed’ sites around Boston. Street works by Shepard Fairey can be found in both legal and illegal spaces near the ICA. Fairey has stated that he considers the street context of his art to be a crucial aspect of the art that is currently being shown at the ICA. Unfortunately, the street artist who says that people should “question everything” did not allow questions from the Q&A audience. Shepard Fairey failed to answer the questions that so many people have asked or demanded from him.

Some reporters are commenting on how Shepard Fairey appeared calm and collective at the Q&A session and the opening of the exhibit. Some have went as far as to suggest that Fairey is not showing signs of worry concerning copyright infringement allegations or mass criticism of his art and ethics of his practice that has taken place online in recent weeks. However, Shepard Fairey did address issues of plagiarism and copyright infringement days before the opening with the help of some of his associates and the Internet.

A few days ago a commenter tipped me off about an article concerning Shepard Fairey, copyright infringement, appropriation and Mark Vallen’s 2007 critique of Fairey’s art. The article, titled 'The Medium is the Message: Shepard Fairey and the Art of Appropriation', was posted on SuperTouch by J O’Shea-- Jamie O'Shea for those who don't know. The article by O'Shea is critical of Vallen's criticism concerning Shepard Fairey. A link to Jamie O’Shea’s article was posted on Fairey’s ObeyGiant website within minutes of it being published online by SuperTouch.

Before I go any further I want to make it clear that I do not agree with every view that Mark Vallen has concerning Shepard Fairey-- or art for that matter. However, it makes since that Jamie O’Shea, the editor of Super Touch, would support Shepard Fairey considering that Shepard Fairey is listed as an author on SuperTouch. It should also be noted that Jamie O’Shea has followed Fairey’s career extensively-- and has also curated and co-curated art exhibits involving the artist.

Jamie O’Shea started his criticism of Mark Vallen’s article by stating, “As underground art phenomenon SHEPARD FAIREY’s first major museum retrospective prepares to open at the INSTITUTE OF CONTEMPORARY ART/BOSTON on February 6th, we feel the need to address some of the vicious and unfounded rumors surrounding the originality of Shepard’s artwork that have been floated online in recent years.”. O’Shea suggested that criticism of Shepard Fairey by Mark Vallen and other “detractors” is nothing more than a smear campaign against Fairey-- stating that a, “widespread and baseless internet campaign to smear Shepard Fairey has been going on for some time now“. In other words, O’Shea suggests that mass criticism of Shepard Fairey is nothing more than a smear campaign against the artist. Paranoia or damage control? You be the judge. Calm or worried? Again, you be the judge.

Links of Interest:

Obey Plagiarist Shepard Fairey: A critique by artist Mark Vallen
www.art-for-a-change.com/Obey/index.htm

THE MEDIUM IS THE MESSAGE: SHEPARD FAIREY AND THE ART OF APPROPRIATION by Jamie O’Shea -- SuperTouch
www.supertouchart.com/2009/02/02/editorial-the-medium-is-the-message-shepard-fairey-and-the-art-of-appropriation/

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

More Links of Interest:

ICA Boston Presents First Museum Survey of Street Artist Shepard Fairey -- Artdaily
www.artdaily.com/index.asp?int_sec=2&int_new=28819

Shepard Fairey Talks Obama, Plagiarism and Capitalism at ICA by Ryan Weaver -- Bostonist
www.bostonist.com/2009/02/06/shepard_fairey_talks_obama_plagiari.php

Barack attack: Street artist Shepard Fairey’s portrait of Obama opens doors to ICA exhibit by Martin Caballero -- Boston Herald
www.bostonherald.com/entertainment/arts_culture/view.bg?articleid=1150076&srvc=rss

Art Law Professionals weigh-in on Associated Press Copyright Infringement Allegation Against Shepard Fairey by Brian Sherwin -- Myartspace Blog
www.myartspace.com/blog/2009/02/art-law-professionals-weigh-in-on.html

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.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

Jamie O'Shea Obeys Shepard Fairey by Taking Jabs at Mark Vallen

A commenter tipped me off about an article concerning Shepard Fairey, copyright infringement, appropriation and Mark Vallen’s 2007 critique of Fairey’s art. The article, titled 'The Medium is the Message: Shepard Fairey and the Art of Appropriation', was posted on Supertouch by J O’Shea-- Jamie O'Shea for those who don't know. The article by O'Shea is critical of Vallen's criticism concerning Shepard Fairey.

Before I go any further I want to make it clear that I do not agree with every view that Mark Vallen has concerning Shepard Fairey-- or art for that matter. However, it makes since that Jamie O’Shea, the editor of Super Touch, would support Shepard Fairey considering that Shepard Fairey is listed as an author on SuperTouch. It should also be noted that Jamie O’Shea has followed Fairey’s career extensively-- and has also curated and co-curated art exhibits involving the artist.

One could say that Jamie O'Shea and Shepard Fairey are business associates. In other words, Jamie O’Shea has a vested interest in making sure that Shepard Fairey is seen in a positive light. Articles by J O’Shea concerning positive aspects of Fairey’s career can be found on several websites if you do a search of ‘O’Shea Fairey’ on Google. Apparently Jamie O’Shea, who served ten years as the editor-in-chief of Juxtapoz, is now a creative director serving as a corporate liaison in order to connect artists with corporate culture-- and collections. There is nothing wrong with that-- but again, I’m certain that Mr. O’Shea has a vested interest in Mr. Fairey.

Jamie O'Shea's critical view of Mark Vallen’s critique is not exactly balanced nor is it a surprise. In fact, his support for Fairey is similar to the support Yosi Sergant-- of Evolutionary Media Group-- has shown to the artist. It should be noted that Yosi Sergant also has a vested interest in the success of Shepard Fairey. Thus, it makes since that both O'Shea and Sergant have spoke out against criticism of Shepard Fairey.

Allow me to break down what was said in the blunt of Jamie O‘Shea‘s article titled 'The Medium is the Message: Shepard Fairey and the Art of Appropriation':

Jamie O’Shea started his criticism of Mark Vallen’s article-- titled Obey Plagiarist Shepard Fairey: A critique by artist Mark Vallen-- by stating, “As underground art phenomenon SHEPARD FAIREY’s first major museum retrospective prepares to open at the INSTITUTE OF CONTEMPORARY ART/BOSTON on February 6th, we feel the need to address some of the vicious and unfounded rumors surrounding the originality of Shepard’s artwork that have been floated online in recent years.”.

O’Shea goes on to say, “Though written by a variety of different detractors for a questionable array of reasons, the common thread binding them all—aside from a thinly masked veneer of obvious envy in most cases—is a nearly ubiquitous lack of understanding of the artist’s use of appropriated imagery in his work and the longstanding historical precedent for this mode of creative expression.”. Based on O'Shea's usage of words one can only assume that he is hoping to strengthen the idea that only "jealous" individiuals criticize Shepard Fairey or any successful artist for that matter-- words and phrases that Fairey himself has used in describing individuals who are critical of his art and practice.

In essence O'Shea's article is an attempt at damage control-- he is aware that people are starting to do research about the copyright allegations surrounding Shepard Fairey's career. It is obvious that O'Shea is nervous about what people may find online during their research. Needless to say, the article by Jamie O’Shea comes off as nothing more than damage control given the fact that so many individuals have been researching allegations of copyright infringement against Shepard Fairey due to his use of Mannie Garcia’s photograph of Obama. Fairey failed to acknowledge or compensate the photographer-- which has stirred a controversy surrounding the ethics of Shepard Fairey's artistic practice.

In the article O’Shea claims that a “widespread and baseless internet campaign to smear Shepard Fairey has been going on for some time now“. In other words, O’Shea suggests that mass criticism of Shepard Fairey is nothing more than a smear campaign against the artist. O’Shea suggests that the alleged smear campaign against Shepard Fairey is based on Mark Vallen’s article as a primary source-- as if there were no detractors of Shepard Fairey’s art and questions of copyright infringement surrounding his career before Vallen’s article was published online.

That suggestion is obviously not grounded in facts considering that art historian Lincoln Cushing had exposed Shepard Fairey for copyright infringement before Vallen‘s article was published-- it was not the first time that Fairey had been exposed for questionable or unethical practices concerning his art. Thus, in my opinion O’Shea’s words are spurred by his own paranoia-- O'Shea can see the castle that he, Fairey, and others have built crumbling if public opinion starts to question the ethics and allegations concerning Fairey’s art. Thus, the article-- based on the implications for O’Shea writing it in the first place (read his introduction)-- is a ploy designed to gain support for Shepard Fairey during a crucial time in his career.

Of Mark Vallen’s article Jamie O’Shea stated, “If this writing were simply a balanced, albeit negative critique, or even an educated “gotcha” piece no one would care, but the article in question is an unabashed and well-disseminated character-assassination attempt, one we thought was finally worthy of our attention here on the pages of Supertouch given Shepard’s recent, and metorical rise to public prominence.”. In my opinion the Vallen article is a “gotcha” piece. Vallen may be harsh in his criticism of Fairey-- I personally don't agree with everything Vallen said--, but who ever said that criticism need be polite? Surely Shepard Fairey can agree with that.

It is not like Mark Vallen was the only person critical of Shepard Fairey in the first place. After all, Mark Vallen worked closely on the article with Lincoln Cushing -- the art historian who discovered Shepard Fairey’s infringement of a Rene Mederos poster in 2007. The infringing image by Shepard Fairey, titled ‘Cuban Rider’, was sold as a shirt in Fairey’s OBEY clothing line. A representative of Shepard Fairey acknowledged the copyright infringement and the shirt involving the image was soon after pulled from production.

One could say that the issue over Rene Mederos is what spurred Mark Vallen to write his critique of Shepard Fairey in the first place. With that in mind, does it seem that the criticism of Shepard Fairey is "baseless"? “Gotcha”, indeed. Oddly enough, Lincoln Cushing's discovery is not mentioned in the O'Shea article nor does the article mention that 'Cuban Rider' was pulled from production for copyright infringement. O'Shea mentions Lincoln Cushing, but does not state why he was involved with the Vallen article to begin with. Why leave out that critical information? I suppose O'Shea will have to answer to that.

Jamie O’Shea continues his criticism of Mark Vallen critique by stating, “The way Vallen tells it, Shepard has based his 20-year art career solely around cashing in on the work of other people. Yet the images that Vallen uses to support this claim are almost all examples of Shepard’s street art from the formative stages of his career (1990s and early 2000s),” What Jamie O’Shea fails to note is that Mark Vallen pointed out that some of the images that Fairey has used do fall under fair use due to the date of the original images.

Vallen makes it clear that some of the images that have served as the origin of Shepard Fairey's art are no longer protected by copyright while others never were in the first place-- anyone can use them. Thus, anyone can make derivative works based on them-- not just Shepard Fairey. In those examples Vallen suggests that it is not ethical for Shepard Fairey (or anyone else for that matter) to claim those specific images as his (their) own. In defense of Vallen I must say that a lot of people agree with his position. However, works that are no longer protected by copyright are indeed fair game, so to speak.

Vallen’s main complaint is that Fairey conceals the history of these images while claiming them as his own (more on that later). However, Vallen also targets images that Fairey created in 2005, 2006, and 2007 that have origins in works that are still protected by copyright. Images that do not exactly fall under fair use as far as parody or social comment is concerned because they are not widely known in the first place. You don’t have to take my word for it-- out of ten art law professionals I’ve spoken with about specific copyright allegations involving Shepard Fairey seven have agreed that Fairey went beyond the line of fair use with some aspects of his appropriation. (A few of those professionals are currently writing about this issue and will allow me to publish their research on the Myartspace Blog. Both sides of the debate will be acknowledged.)

Jamie O’Shea then states that the art from the “formative stages“ of Shepard Fairey‘s career were, “sold only in editions of 100 or 200 at $20 or $25 a pop at the time. Considering that hundreds, maybe thousands of those same posters were pasted up on the street at Fairey’s personal expense, it’s certain the artist never saw a dime of profit from all that printing and in most cases probably failed to even recoup costs.” All I can say to that is that profit is profit no matter how you try to slice the pie. Surely someone who claims to know so much about copyright as Mr. O’Shea would understand that it does not matter how the profit is used as far as copyright infringement is concerned. Profit is profit.

It does not matter if Fairey put all of the profit into printing more images nor does it matter, in recent times, if he donated the profit to political or social causes. Profit is profit where copyright infringement is concerned. In court the emotive reasoning for the decision to infringe is cast aside. In other words, in court you can't always get away with murder even if the person was killed for the greater good nor can you always get away with infringement even if it happened for the greater good. Vallen's concern is that Shepard Fairey is placing a price tag on history and that he is 'murdering' the intentions that people involved with the original art had.

I want to be clear about something. I'm not trying to take away from the good that Shepard Fairey has done. He has done great things for some wonderful causes. However, in my opinion the good that Fairey has done-- the causes, people, and animals that he has helped-- should not be used as a shied to ward off allegations of copyright infringement. Unfortunately, Fairey (in his interview with Mother Jones)-- and now O'Shea-- have done just that. In other words, they have tried to create a distraction concerning questions about copyright infringement by implying that critics are somehow against the causes that Fairey has supported. That is simply not the case-- it is petty for them to try and make monsters out of individuals who are critical of Shepard Fairey's practice. After all, just because someone is critical of Fairey's art does not mean that he or she is critical of the causes that Fairey has stood for. If Shepard Fairey feels that criticism of his art implies criticism of causes he has stood for he must truly be arrogant.

Jamie O’Shea then states, “Furthermore, none of Vallen’s reference points come from the art that Shepard has sold in recent years for substantial profit. It can’t be said whether Vallen tried but couldn’t find any clearly plagiarized imagery in that work, or simply didn’t bother to look, but his claims about cash cows simply do not add up, especially since Shepard didn’t have a single solo gallery show for the first 10 years of his career”. To that I say-- it seems to me that the Hope poster-- which has earned between $400,000 and $800,000 from what I’ve read-- was a “cash cow” even if the profit was donated or used to print more posters-- again, profit is profit no matter how you try to slice the pie.

On a side note: I find it odd that O’Shea forgot to mention the allegations of copyright infringement involving the Hope poster and a photograph taken by photographer Mannie Garcia. After all, O'Shea posted his article today and people have been discussing the Garcia image for over a week. If anything, the alleged infringement of the Mannie Garcia photograph supports Vallen’s claims of Shepard Fairey's ongoing practice of copyright infringement-- which I assume is why O’Shea left that information out of his article.

Jamie O’Shea then attacks the heart of Vallen’s criticism by stating, “In his piece, Vallen defines plagiarism as “the deliberate passing off of someone else’s work as your own,” and claims that the difference between Fairey and Lichtenstein is that the latter never laid claim to Mickey Mouse, while Shepard tries to deceitfully sneak his appropriations past viewers in broad daylight. Of course, that couldn’t be further from the truth (the Shepard part, that is). If Vallen had bothered to open “Supply and Demand,” Shepard’s career retrospective book released more than a year and a half before Vallen published his article on his site, he would have seen many of Fairey’s images reproduced side-by-side with the originals that were appropriated or referenced.”. O'Shea does not understand that just because the images are in a book that has been distributed all over the world does not mean that the 'referenced' images are known the world over.

O’Shea then states, “Clearly there’s no basis to Vallen’s claim that Shepard “filches artworks and hopes no one notices,” when the artist himself is publishing evidence of his appropriation—with accompanying text explaining his process and rationale—and distributing it openly around the world.” There is only one problem with O‘Shea‘s viewpoint-- how many people are going to pay $59.95 to find out who Fairey appropriated from?

Under fair use the general public should know this information off hand from their collective knowledge of contemporary society. In other words, they should know without having to buy a book in order to know. The public should be able to look at ‘Cuban Rider’ and say, “Fairey is commenting on the Rene Mederos poster!”. Unfortunately, Shepard Fairey has failed on that crucial aspect of fair use-- which is why it seems that he attempts to pass works by others off as his own. In that sense, Supply and Demand and the current limited edition of the book is nothing more than a way for Shepard Fairey to defend his work by saying, “See, I made everything clear in this book!” while slapping a price tag upon said knowledge. That is exactly what Mark Vallen's critique of Shepard Fairey is about.

Concerning fair use Vallen’s point is that the character Mickey Mouse is in itself iconic. Mickey Mouse is a household name-- everyone knows Mickey. Thus, one can easily make a parody or social comment about the beloved mouse knowing that people will know exactly what is being parodied or commented on under fair use. The same goes for much of Warhol’s work because he used images that the general public was aware of. You could say that Mickey Mouse and specific brands of soup are in our collective conscious-- we don't have to buy a $59.95 book in order to make the connection when those images are used in art.

That said, using aspects of a photograph or artwork that is not well-known does not exactly fall under fair use as far as parody or social comment is concerned because people will not know-- unless they research the image (in this case buy the book)-- what is being parodied or commented on. Again, when people look at the Hope poster they did not say, “Shepard Fairey has made a comment about Mannie Garcia’s photograph of Obama.”-- even Fairey claimed that he did not know who the photographer was. Oddly enough, a gallery representing Fairey acknowledged to Garcia that indeed the image Fairey had used for Hope was his photograph.

Jamie O’Shea goes on about the issue-- stating, “Overall, the concept of using reference images in the context of modern art seems to have eluded Vallen completely in regards to Fairey’s art. When he claims that Shepard strips away historical meaning and context in his artworks, he’s missing the entire point of referencing: By taking precisely the elements of an image that speak of its historical meaning and original context and incorporating them into a new image, an artist creates a visual comparison, juxtaposing new and old.” It seems to me that Jamie O’Shea is missing the heart of Mark Vallen’s criticism. Viewers are obviously not making a connection between the ‘old’ image and Shepard Fairey’s ‘new’ image-- the dialogue is missing because no dialogue has been established unless-- by O’Shea’s suggestion -- you pay $59.95 to be introduced to what is being commented on. That is not how fair use works.

To put it bluntly, when it comes to supporting fair use within the context of art you can’t simply create a dialogue by publishing a book about the dialogue in order for viewers to understand what is being parodied or commented on within the context of the art. The viewers should know upon viewing the work-- period. The connection should click in their mind-- period. If it does not click-- if a connection is not made-- then one can debate that fair use under parody or social comment has not taken place and that instead the ‘new’ art has infringed on the ‘old’ art-- period. In other words, O'Shea should stop trying to pitch Fairey's book Supply and Demand and instead discuss why people are not making the connection on their own!

O’Shea continues, “Such a contrasting is inherent in the act of referencing, and the intended result is for viewers to consider the relationship of the two images and hopefully spark a dialogue: Are they really distinct, or just symbols of the same phenomenon? Is the artist saying the two images are similarly or differently relevant? Is the older image outdated and in need of an update, or is it a commentary on society’s perverse obsession with overhauling classic works? Does this new recontextualized image make me feel any differently than the old one did?” followed by “These are questions most people consider, usually subconsciously, when looking at images that employ references as visual cues.” Is O'Shea clueless? There are a number of people who did not make the connections until they read Mark Vallen's article. Honestly, I wonder how many people knew about Rene Mederos before reading Vallen's critique?

Again, it seems to me that Jamie O’Shea is missing the heart of Mark Vallen’s criticism. Viewers are obviously not making a connection between the ‘old’ image and Shepard Fairey’s ‘new’ image-- the dialogue is missing because no dialogue has been established unless you pay $59.95 to be introduced to what is being commented on or parodied. In order for fair use to apply-- based on the conversations I’ve had with art law professionals and members of the arts community-- the connection must be obvious from the start or it simply is not fair use. If anything a case could be made against Fairey’s defense of his images as fair use due to the lack of dialogue-- the lack of a connection that should be made by the typical viewer upon viewing Shepard Fairey’s art.

Needless to say, I’m surprised that Jamie O’Shea used Supply and Demand to defend Shepard Fairey’s understanding of fair use. By implication O’Shea is suggesting that the connection and dialogue expected of fair use is being made by the book itself rather than specific images by Shepard Fairey. Again, the typical viewer should not have to pay $59.95 in order to realize these connections. If fair use was used in the way it is designed the viewer would be able to make those connections on their own. In other words, viewers would be aware of the dialogue going on between the ‘old’ image and the ‘new’ image by Fairey without having to read a brief history lesson about the connection.

Thus, Supply and Demand is not exactly the best source of defense for Shepard Fairey concerning alleged infringement. In fact, O’Shea’s viewpoint reveals that their needs to be more dialogue about Fairey’s alleged infringement so that the typical viewer understands the lack of dialogue and connection that is being made when Fairey utilizes fair use so that they can then question if it is fair use at all. I believe that was another point of Mark Vallen's critique as I understand it.

Jamie O’Shea goes on to defend Shepard Fairey by comparing Fairey’s appropriation to the use of appropriation in artworks created by artists in the recent past. O’Shea states, “Vallen must believe the Sex Pistols used the official portrait of the Queen of England and put a safety pin through her lip because they couldn’t do any better on their own and needed an image that would sell.”. Having read the Vallen article I don’t think he is suggesting that at all. In fact, Vallen makes it clear that some forms of appropriation are legitimate. The official portrait of the Queen of England is fair game as far as fair use is concerned due to parody or social comment. That specific image of the Queen, even back then, was known the world over. Thus, comparing the album art to Fairey’s art is not exactly a true comparison as far as fair use is concerned. It should be noted that O’Shea did not bother to mention the name of the artist who created the iconic image for The Sex Pistols-- Jamie Reid.

Jamie O’Shea then attempts to make the issue a conservative versus liberal scenario by stating, “Vallen goes on to question whether Shepard truly supports the left-wing causes he depicts in his work, claiming that it’s “not impossible to view Fairey’s work as right-wing in essence, since it largely ransacks leftist history and imagery while the artist laughs all the way to the bank.”. O’Shea then goes into a rant about how Shepard Fairey would not risk his life spreading a “left-wing” message if in reality he supported “right-wing” views. He then states, “Furthermore, would a true right-wing ideologue have any interest in spreading left-wing imagery, even if he did make a few dollars in the process? Could Vallen really believe an artist who donated all of the proceeds from sales of Obama posters to his presidential campaign (according to public campaign finance information available online, Shepard and his wife, Amanda, donated $300,000 to $400,00 to Obama, the Democratic National Committee Democratic committees in various swing states, and other Democratic “victory funds”) did so only to go home and secretly pray to an altar of George Bush or even worse, Dick Cheney?”. Unfortunately, I think that Jamie O’Shea is taking Mark Vallen’s words way out of context.

Vallen was not commenting on ‘left’ and ‘right’ as in Democrat or Republican or liberal or conservative. Instead he was using left wing and right wing beyond just the American interpretation of catch words involved in discussions of two rival political parties in the United States. Vallen was thinking globally by stressing that he feels that Shepard Fairey has exploited artworks from movements that are considered leftist on the global political spectrum, so to speak.

In other words, Vallen feels that Fairey has shown those movements and the artists behind those movement great disrespect by using art works associated with the causes they fought for in a way that the average viewer will most likely not make a connection with. Thus, the history of their struggle is lost in Shepard Fairey’s art-- unless, based on the implications of O’Shea’s words, you buy Supply and Demand for $59.95.

Here is what Mark Vallen said, “Some have, for whatever reason, imagined Fairey to be a progressive political figure, a perception certainly cultivated by the artist; but it’s also not impossible to view Fairey’s work as right-wing in essence, since it largely ransacks leftist history and imagery while the artist laughs all the way to the bank.” Vallen goes on to say, “For me, the question is not what Fairey’s political allegiances may or may not be, but rather, how his work sets a standard that is ultimately damaging to art and leads to its further dissolution. When a will to plagiarize and a love for self-promotion are the only requirements necessary for becoming an artist, then clearly the arts are in deep trouble.”.

My interpretation is that Vallen was simply pointing out that specific images by Shepard Fairey have not made a true connection with the images they are based upon. In that sense, yes-- they take away from the history of the original intent of the source images and the movements they were associated with. Vallen did not mention Bush or Cheney in connection to Shepard Fairey-- he did not even mention conservatism or liberalism or Republican and Democrat. It would appear that O'Shea's view of left and right politics is rather limited.

O’Shea continues, “If Vallen is to be believed, the same must be true in the case of Fairey’s countless donations of artworks and money to causes like the Chiapas Relief Fund, Hope for Darfur, the ACLU, MoveOn, the movement to overturn Prop 8, 11th Hour Action, Hurricane Katrina relief, Southern California fire relief, LA teenage shelters, children’s charities in Iraq and the U.S., Free the West Memphis 3, and Rush Arts for inner-city schools (to name just a few). Fittingly, the most ridiculous aspect of this “stealing from the left to give to the right” argument is that Vallen himself makes—and sells—art depicting left-wing figures and social issues, just like Shepard does. It’s not impossible to view him as a hypocrite.” It looks like once again the shield of charity has been raised!

Again, Jamie O’Shea fails to grasp the global implications of Mark Vallen’s use of ‘left’ and ‘right‘. Vallen did not say anything about Shepard Fairey ‘stealing art from the left to give to the right’ as O’Shea suggests. However, if O’Shea wishes to think on those terms I will point out where Vallen offered an example that could be called taking from the right to give to the left-- with a whole lot of ignorance in between. Vallen goes into great detail about an issue involving Shepard Fairey and the Nazi Death’s Head logo of the Gestapo.

Vallen explains, "In 2006 Fairey printed a near exact copy of an already existing skull and crossbones artwork he found, altering the original design only by adding the words "OBEY: Defiant Since '89" along with a small star bearing the face of Andre the Giant. The image was reproduced as a T-shirt and added to Fairey’s OBEY fashion line.

As luck would have it, Wal-Mart plagiarized the master plagiarist, copying and printing Fairey’s rip-off and adding it to the superstore’s own fashion line. A shopper at Wal-Mart recognized the skull motif’s origin and angrily protested - as it was an exact duplication of the infamous logo belonging to the Gestapo, the Nazi "secret state police" that served as personal bodyguards to Adolf Hitler and administered the concentration camps where the genocide of the Jewish people was put into practice.

Unsurprisingly Wal-Mart’s T-shirts became a nationwide controversy, with legions of infuriated citizens insisting the superstore apologize and pull the offensive items from their shelves - a demand that was ultimately met. Eventually it came to light that Shepard Fairey was first responsible for manufacturing and selling the T-shirt, and when confronted by the website, consumerist.com, Fairey offered the following excuse: "When I made that graphic I was referencing a biker logo and it was only brought up to me later that it was the SS skull." First, Fairey openly admits to directly copying an image created by someone else (he calls this "referencing"), and then feigns innocence when faced with the odious background of the original Nazi designers. In the same set of remarks made to consumerist.com, Fairey insists that he is "anti-fascist and pro-peace", but what kind of anti-fascist does not recognize the symbols used by the Nazi regime? Fairey’s only defense here is full-blown ignorance - hardly an attribute expected in artists supposedly dedicated to social commentary.”

I wonder what Jamie O’Shea has to say about that? It seems he forgot to mention that aspect of Mark Vallen’s criticism of Shepard Fairey. Did he leave it out because Vallen was dead on in his criticism of Shepard Fairey?

I could examine the two articles further, but I think it is best to stop for now (I may tackle the second half this week). This is how I see it--- Shepard Fairey has stated the following about his art, "The real message behind most of my work is ‘question everything.". Thus, I would think that Fairey would understand that people are going to question his work-- question everything about it. Is that not what he wanted? Or is the message itself a contradiction?

Shepard Fairey, who embraces the idea of ‘questioning everything’, should not state that people who criticize him are “jealous”, “lazy”, or “full of apathy”-- or any number of attacks that Fairey and his supporters have made against those who question his art, methods, and ethics. In fact, I would say that said choice of words reveals the truth of Mark Vallen’s article. After all, people generally respond with harsh words when there is reason for criticism.

My guess is that from this point on Shepard Fairey will be very careful not to infringe on copyright protected artworks or photographs. After all, his cleanup crew-- people like Jamie O’Shea -- can only do damage control so many times before people start to demand answers in mass. Don’t forget to wring out the mop O’Shea.

Links of Interest:

Obey Plagiarist Shepard Fairey A critique by artist Mark Vallen

THE MEDIUM IS THE MESSAGE: SHEPARD FAIREY AND THE ART OF APPROPRIATION -- SuperTouch

Lawyers and Law Professionals Weigh-In on Shepard Fairey Copyright Infringement Allegation

Shepard Fairey: Obey Copyright

Take care, Stay true,

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

Art Space Talk: Poster Boy

The street artist known as Poster Boy has been turning heads in New York City. Poster Boy, who has chosen to remain anonymous, has been described as being a rare breed of visual revolutionary who can't be bought. Poster Boy will make any street art purist proud-- his work is fresh considering that so many before him-- Shepard Fairey, Ron English, and Banksy-- have ended up meshing money with their social message. I don’t blame them-- once older even a street artist must think about his or her financial future, true? I suppose with the old street/urban art vanguard we can stomach the contradictions. That said, it is exciting to see that a young street artist like Poster Boy is starting to make waves without a dollar attachment.

Poster Boy captures a youthful energy with his work. The 20-something artist has stated that he strives to establish an art movement-- he hopes that others will use the Poster Boy alias in order to add to the dialogue on the streets. Of the movement Poster Boy has said, “No copyright, no authorship. A social thing, as opposed to being an artist making things for bored rich people to hang above their couch.” It will be interesting to observe how this movement grows.

Brian Sherwin: My understanding is that your work is focused on change-- your hope is that people will follow the path that you have chosen in order to make their environments informative about issues that are important to the general public. However, the problem with that is that change often involves a price tag-- do you have issues with artists who attach a price to social change? For example, do you have any thoughts concerning Shepard Fairey and other Street / Urban artists who have meshed money within their message?

Poster Boy: Art doesn't have to be the vehicle. I'd like people to be inspired in any way. I disagree that change comes with a price tag. I understand that very few things in this world are free. However, I think some of the most powerful statements have been made on little or no money. All you need is love and the truth. With truth comes understanding. With love comes the courage to do something about it. Consider what I did with a razor, Flickr, Hotmail, and Youtube account. Total cost: 0.50

As for artists who attach a price tag to their "social" cause I remain skeptical. It depends on what their involvement with the cause is. I don't pretend to read minds and know what their ulterior motives are, but I know a good business scheme when I see one. You mention Shepard Fairey. In regards to his Obama Hope poster I think it was a good business scheme. Sure there are good qualities in Obama, but compared to the last administration my dirty underwear has good qualities.

What about Obama's stance on Gaza? What about the political system, where my concern lies, in general? People only heard two voices during election time. Where was Nader's and Ron Paul's voice? I think there are more pressing issues than Obama being elected. The late Paul Newman was an artist that was genuinely concerned with social change. R.I.P.

BS: So what about artists who sell their work in general-- and the art market in general? In your opinion is there something corporate about that? If you had the opportunity to spend one night in a mainstream gallery what would you do? Would you add to those works as well?

PB: There's nothing wrong with making a living off your own hard work. When it's done through a creative outlet it's especially desirable. I do have a problem with the art market. The market's primary function is to make money. This is accomplished by forging the artist's persona to fit the whims of the market. In other words the artist becomes a marketable brand. Like Pepsi and Corn Flakes there will be certain expectations of the artist. With brands it's good business to find a formula that works and stick with it.

Applying this practice to artists and their work is detrimental to the creative process. The purpose of the artist is to constantly question. I refuse to be a brand. However, I would work with a gallery or any organization willing to work with me, but it would be on my terms. So this doesn't come off as a total contradiction people should understand that my physical work will never be for sale. The point is to reach as many people as possible. Some sacrifices have to be made.

BS: I understand that you work is very public-- as in you will work freely within a high traffic area. What are some of the reactions you observe from people when doing you work?

PB: New Yorkers are very bright. The response is always positive because they understand the work. Many people laugh or smile. What more could I ask for?

BS: Can you go into further detail about the meaning of your work? What is the specific message that you strive to convey to viewers?

PB: In regards to art, I want people to understand that authorship, copyright, and originality are terms that should be excluded from the discourse of aesthetics. The idea of originality always bothered me. There has and always will be a precursor to your idea no matter how "original" it seems. Should we attribute the invention of graffiti to the Norwegian engineer Erik Rotheim? No more than we can say that amphibians produced the first line when they carried their slimy asses over the sand a few hundred million years ago.

In regards to social change, I want people to interact with their surroundings differently and reconsider private property. People should understand that there is a difference between what is legal and what is just. If there is a law that is outdated, impractical, and/or immoral, people have the right to challenge it. Remember, slavery was considered legal at one point. I consider the World's current modus operandi a modern day slave system. I intend to challenge it in any way I can.


BS: Can you describe your thought process when working on a mash-up? What concerns do you have while working? Is the work that you do intuitive or do you have a plan before starting? In other words, do you scope out an area in advance in order to plan out the piece or do you simply create as you go?
PB: I guess you can compare it to freestyling on a mic. Without anything planned I approach a station and work with the posters available. Armed with some knowledge of current events, creativity, and a razor I go to work. There are times when there isn't enough material at a given station so I'll destroy a few posters out of principle and move to the next station. My only concern is getting caught by authorities. I'm not afraid of controversy, but getting pinched would slow me down.


BS: There have been some critics of your work-- especially on art forums where your work has been discussed. I recall that one commenter described you as a “counterfeit Banksy” due to the fact that you remain anonymous. Others have suggested that you should be more open about your identity regardless of illegal issues since Shepard Fairey is very open about his illegal works and is known to document his activity on his website. Can you go into detail about why you have chosen to remain anonymous? Is Poster Boy an individual or do you see it as a movement-- is that why your identity is concealed?

PB: That's hilarious. I guess Banksy invented the idea of working anonymously. What I do is illegal. What more can I say? Those guys (Banksy and Fairey) are comfortable these days. I love their early work, but if they continued to push the envelope I bet they'd have a bandana on their face too. What's the easiest way to quell a revolutionary? Hand her/him a grip of money.

There's another reason for remaining anonymous. Going back to the issue of authorship I think people would be less inclined to participate in the Poster Boy "movement" if I attached an ego to the name. An artistic free-for-all. No copyright. No authorship. No ego.

BS: Why New York City?

PB: New York is the hotbed for aggressive ad campaigns. Besides, there's no place like home.

BS: Can you go into further detail about your concerns over mass media and corporate branding in the United States?

PB: Mass media is a blight. Plain and simple. We are force fed this stuff everywhere. Advertisers prey on our insecurities and attack us on every front. It's time we fight back.


BS: You have been called a revolutionary-- among other things-- do you see yourself in that light? Or do you try to avoid labels?

PB: I don't like labels at all. Humans beings are way too complex for labels. Revolutionary has a nice ring though.

BS: Do you document your work? Can people view it online? Any links?

PB: I try to make my work as accessible as possible. Due to the transient nature of my work I have a flickr account where my work is showcased:
www.flickr.com/photos/26296445@N05/
www.youtube.com/user/PosterboyNYC
www.posterboynyc.com/ (coming soon)


BS: Finally, how long will you continue to do this? If your identity were to be made known would you stop? Or simply switch your methods in order to once again conceal yourself?

PB: I will do this for as long as it is needed. When public advertising is banned I will use the Poster Boy model to address other issues. Till then expect Poster Boy to push the envelope.

You can read more of my interviews by visiting the following page-- www.myartspace.com/interviews.

Take care, Stay true,

Brian Sherwin

Senior Editor

myartspace.com

www.myartspace.com

New York Art Exchange

www.nyaxe.com

Lawyers and Law Professionals Weigh-In on Shepard Fairey Copyright Infringement Allegation

A comparison of the Obama photograph taken by Jim Young (bottom) and the Obama photograph taken by Mannie Garcia (top) concerning Shepard Fairey’s ’Hope’.

The issue of Shepard Fairey, Mannie Garcia, and fair use has sparked a debate among the copyright law community online. The debate is centered on a press photo of Obama taken by Mannie Garcia that Shepard Fairey used in order to create his stencil portrait of Obama titled ‘Hope’. 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 Garcia’s photograph and failed to give the photographer credit.

Fairey has stated that he did not know who the photographer of the Obama photograph was and that he found the image randomly online. However, Mannie Garcia claims that the Danziger Gallery, which represents some of Fairey’s art, contacted him on the 21st of January 2009 to inform him that his photograph was in fact the basis for Fairey’s Obama posters. These conflicting reports demand answers. Could it be that Shepard Fairey knew who the owner of the photograph was all along? If so, why did he not reach out to Mannie Garcia? Did he intentionally avoid contacting Mr. Garcia due to monetary reasons?
Did he willfully infringe upon Garcia’s copyright?

From what I’ve read it appears that art law professionals are split on the issue. Peter Friedman, a visiting Professor at the University of Detroit Mercy Law School, has stated, “The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative”. However, 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 photographer should have had the right to charge Fairey or the Obama campaign a fee to use the photo.

The Art Law Blog has mentioned that 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 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.”

Richard Lacayo , writing for TIME, has stated that Mannie Garcia will have difficulty if he changes his mind about taking Shepard Fairey to court. Lacayo stated, “And if he changes his mind about the not-seeking-money part? He might find it hard to make a case in court. In lawsuits over image appropriation, judges commonly try to decide whether an artist's re-use of earlier material is "transformative". If the new image passes that test, the appropriation is protected by the fair use doctrine, which permits limited reproduction of copyrighted material.”. However, Lacayo goes on to say, “the law in this area is vague and outcomes are very unpredictable. That's even the view of Pierre Leval, the federal appeals court judge who first proposed the influential "transformative" standard in a 1990 Harvard Law Review article.”

Based on the comments I’ve read concerning this issue it appears that many individuals in the art and photography community would like Mannie Garcia to take legal action against Shepard Fairey in order to send a clear message to other individuals and corporations who infringe on copyright protected images. Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.

A debate among lawyers and other interested individuals can be found at PrawfsBlawg . Shepard Fairey has yet to comment about the copyright infringement allegation involving Mannie Garcia’s Obama photograph. However, he has stated that the Obama posters, “Belong to everyone”. That said, he has previously threatened to take legal action against individuals who have profited off the posters and artists who have infringed on the posters copyright.

In the past Fairey has stated that artists who question the validity of his work are “jealous” of his success or that they are distracted by “apathy”. Some of those charges have been thrown at me for being critical of Fairey's art. Mr. Fairey, most artists just want to make sure that copyright is acknowledged and that the rights of fellow artists are respected. A businessman such as yourself-- having defended your own copyrights-- should understand that. If you feel that my opinions are wrong you are more than welcome to contact me in order to set the record straight. If you want a gloves off interview… I’m game.

Links of Interest:

Ripped and Altered? What You Need to Know -- Myartspace Blog

Imagine Fair Use -- Myartspace Blog

Shepard Fairey: Obey Copyright -- Myartspace Blog

The Intentions of Shepard Fairey Should Be Examined -- Myartspace Blog

Obama’s Obedient Artist: Is Shepard Fairey a Farce? -- Myartspace Blog

Productive Use, Transformative Use, Complementary Use: Who’s Right? -- The Patry Copyright Blog

Issues of Copyright Infringement and Shepard Fairey‘s Obama Poster -- Nothing Wavering

Shepard Fairey - Copyright - Orphan Works - and YOU! -- Collage Clearinghouse

Take care, Stay true,

Brian Sherwin

Senior Editor

myartspace.com

www.myartspace.com

New York Art Exchange

www.nyaxe.com

Shepard Fairey: Obey Copyright

(There is an update on this story near the bottom)

According to Reuters a blogger has discovered the source material of Shepard Fairey’s image of President Barack Obama titled ’Hope’. Michael Cramer took it upon himself to discover the identity of the photographer who took the Obama photo that Fairey had used as a resource for the now “iconic” poster. Fairey has openly stated that he found the images while searching for Obama image on Google. Cramer eventually found a match-- a photograph of Obama taken by Reuter’s veteran photographer Jim Young.

According to the Reuters article the photographer does not care that Shepard Fairey used his photograph without permission, stating, “I’m honored, but I’m glad it didn’t come out until after the campaign,“, he went on to say, “I think even if I had known it was mine, I would have kept quiet. It would be just my little secret.” I’m not sure what Young is implying with his statement-- perhaps he thinks that Obama would have lost support from the art community had it been revealed at that time?

On one hand you can say that Jim Young is being admirable. However, on the other hand you can say that he is being foolish-- working against his profession. After all, there has been heated debate about potential Orphan Works legislation for years now. Over 60 visual art and photography organizations have stood against Orphan Works legislation.

Thus, the issue concerning Fairey’s use of Jim Young’s image without permission or credit is a perfect example of how Orphan Works legislation can harm artists if it is passed at some point in the form we have come to know it. Needless to say, I feel that it is of the utmost importance that the needs of so many creative professionals be acknowledged. In other words, the issue is not about Young taking this alleged infringement by Shepard Fairey with a grain of salt-- the issue is that this could have happened to any visual artist, any photographer, anyone. You.

This is why it is important for works by living artists to remain protected. The current legal repercussions for copyright infringement should remain intact so that creators can adequately defend their copyright protected works and receive the compensation they deserve when their rights are infringed upon. This is why Jim Young-- assuming he holds the copyright for the image-- should consider using what has happened as a way to gain momentum concerning the debate over copyright.

Having some knowledge of Shepard Fairey’s history of alleged copyright infringement and examples of him settling out of court I knew in my gut that eventually the truth would come to light. I was not the only one with concern. Now that the truth is free-- or allegedly free-- I can only hope that those involved will do the right thing. What do I hope for?

*I hope that Shepard Fairey will think twice before using random images that he finds.

*I hope that Shepard Fairey will respect the rights of fellow artists and serve as an example for upholding and respecting copyright laws.

*I hope that the present form of Orphan Works legislation is never passed and that people use this story as an example of why it is dangerous to creative professionals.

*I hope that people can set their emotive support for the ‘Hope’ poster aside in order to see that this is an issue of artist rights.

*I hope that the media will notice that this is the perfect time to discuss the rights of artists and legislation that may harm those rights.

*I hope that President Barack Obama will be a true champion of the arts and protect the rights of the creative community-- rights that we need in order to be productive and successful.

*If there is anything to this story-- even if Jim Young refuses to defend his copyright-- I hope that President Barack Obama will reject any further “help” from Shepard Fairey as a sign of solidarity with hundreds of organizations and millions of artists, art buyers, and artist rights advocates who support copyright protection.

Let us pretend that Jim Young was infuriated with Shepard Fairey. Let us assume that he wanted to defend his copyright and seek damages from the controversial artist. I’m not a lawyer, but I do have some basic understanding of copyright law based on conversations I’ve had with attorneys and other individuals who work closely with copyright issues. My opinion is that this would be a case of copyright infringement due to several factors:

* Making copies of a work that is based on a copyright protected image is copyright infringement unless the artist has permission from the photographer to utilize his photograph within the context of the artwork. In this case Shepard Fairey and his business partners should have had permission from Jim Young before distributing posters derived from Young’s photograph of Obama.

* Fair Use can only protect an artist like Shepard Fairey to a certain point. Fair Use is acceptable when an artwork is copied for purposes of criticism, comment, news reporting, teaching, scholarship, and research. However, the right-- the Fair Use defense-- is not absolute. I think printing thousands of posters involving the image is well beyond Fair Use. The issue is not that Fairey used an image of Obama-- his First Amendment rights allows him to do so-- the issue is that he did not seek permission from the photographer from which his image was base.

Since Shepard Fairey worked closely with companies that distributed the image-- and since Fairey technically runs a company-- the venture was predominately a commercial one regardless if “all of the money” was donated to the Obama campaign. After all, someone profited off of it. There are even reports that Shepard Fairey sold Urban Outfitters exclusive rights to some of the merchandise. All of this would come out if Shepard Fairey had to defend his Fair Use of Jim Young’s Obama photograph. In this scenario the photographer could take action against Shepard Fairey and others who helped promote and sell the image.

If this issue were to go to trial the jury would consider the potential value or market of the original work-- in this case Jim Young‘s photograph. In this scenario jurors would decide whether the alleged infringement sought to supplant or divert sales away from the original work. One could say that Shepard Fairey intentionally diverted attention away from Young’ photo of Obama-- he did not give the photographer credit nor did he ask permission. The court would decide if Shepard Fairey’s ‘Hope’ suppressed the market or value of Jim Young’s photograph.

In a sense, both the artist and the photographer would be at the mercy of the jury. However, in cases like this the jury will think more about facts than law. So the fact that the portrait of Obama in Fairey’s ’Hope’ matches when flipped and placed over Young’s photograph would not bode well for Fairey’s defense of Fair Use in that scenario. It would be a case of Copyright versus the First Amendment. I will say that I think Jim Young would have a lot of support if he decided to take action. Personally I think he is obligated to take action if indeed he holds the rights to that specific images. There are many photography organizations and visual arts organization fighting against infringement like this due to ongoing Orphan Works legislation. It would be a major win for copyright supporters in the arts community.

*Copyright infringement does not have to be word-for-word copying-- it does not have to be literal. In fact, the total concept and feel of a work can also be protected by copyright. There is no specific percentage that needs to be reached before a work can be considered infringement. Since the placement of the face is exactly the same other than being flipped I think that it is possible that infringement occurred.

*One could claim that Shepard Fairey’s version of the photograph is a derivative work-- that Hope is derived from Jim Young’s photograph. However, the owner of a copyright protected work has the exclusive right to prepare derivative works and authorize others to do so. Thus, Shepard Fairey would have had to obtain permission from Jim Young in order to create, print, and distribute works derived from Young’s photograph of Obama.

*One could say that Shepard Fairey’s image is acceptable based on appropriation. However, appropriation-- a work that involves appropriating the property of someone else in order to claim it within his or her own work-- is hard to define and would most likely be up to a jury to decide. Appropriation is not a solid defense. Some artists have lost small fortunes over the issue.

In court the judge and jury would examine three points when observing an alleged violation of copyright infringement. First, they would find out if the artist had access to the work he or she infringed upon. Shepard Fairey had access to the image-- he admits that he found it online doing a Google search for Obama images. Second, they would examine if any copying had occurred by viewing the original work-- the photograph-- alongside the work that allegedly infringed upon the original work. Look at Michael Cramer discovery. Third, the jury would decide if the copying was substantial. Again, it would really boil down to how that specific jury felt at that specific time.

If Jim Young owns the copyright for the photograph and has officially registered it he would be able to pursue a copyright infringement lawsuit against Shepard Fairey easily. If the photograph is registered Young would be eligible for "statutory damages"-- meaning that Fairey would have a lot to lose in court. Young could possibly take action against Evolutionary Media Group as well for helping in the print and distribution process.

Shepard Fairey and Evolutionary Media Group printed over 300,000 posters (probably more) without permission from Jim Young-- assuming our imaginary jury sided with Young-- the story involving the mass printing and distribution of different versions of the poster is well documented online. The business partnership between Shepard Fairey and Evolutionary Media Group is also well documented online. Various quotes from Shepard Fairey, Yosi Sergant, and others would no doubt be heard in this scenario.

In this scenario I don’t know if Jim Young could target the Obama campaign organizers because they did not officially contract Shepard Fairey for the image-- depending on which article you read and at what date it was published. Needless to say, there are conflicting reports about Shepard Fairey‘s unofficial-official connection to the Obama campaign and fundraising. Recent articles state that Shepard Fairey was not contacted directly by the Obama campaign and that his work for the campaign was not “official“.

However, Maureen Callahan of the New York Post reported (on April 24th 2008) that Fairey had stated that he did not want to do something for the Obama campaign “without proper authorization”. Callahan also reported that Fairey worked closely with the Obama campaign communications director Scott Goodstein on the design of the poster.

A Wired article (from September 21st, 2008) quotes Shepard Fairey as saying that he did not want to be an “unwanted endorsement” for the Obama campaign. Thus, he waited for the “unofficial wink and nod to do the image.” which ended up being promoted heavily by the Obama campaign--- I’m sorry folks, that sounds official to me.

Oddly enough, in the same Wired article Fairey does not hide the fact that he drew some inspiration from Alberto Korda’s famous shot of revolutionary Che Guevara for his Obama image--- so why did he not give credit to Jim Young as well? The article goes on to say that Shepard Fairey was eventually contacted by the Obama campaign to create an “officially-approved” version including a campaign approved slogan, ‘Hope’, instead of ‘Progress’.

However, the same portrait, allegedly from Jim Young’s photo-- was used. The article also stated that the campaign desired Fairey to use a "campaign-approved" photo. If the Wired article is correct would that not mean that the Obama campaign is also responsible for the alleged copyright infringement of Jim Young’s photograph-- assuming that he owns the copyright and is willing to defend it? Keep in mind that the Obama campaign earned over $400,000 from Fairey’s Obama themed merchandise. I wonder how much Jim Young earns per year?

There are many contractions concerning stories about Shepard Fairey and his work with the Obama campaign. I’m certain that Michael Cramer’s discover will only add to the chaos. The truth may be forever buried under the rubble of regurgitated articles about Shepard Fairy’s ’Hope’ poster-- which I firmly believe was hyped by stealthy pr tactics instead of a grass roots initiative.

I don’t know if Jim Young owns the copyright to the photo. It may very well be owned by Reuters. It might be open to the public to use. However, what if that is note the case? What if it did not happen to Jim Young and Reuters? What if Shepard Fairey randomly stumbled upon one of your copyright protected images online and “referenced it”? What if he made $400,000 in profit off of the manipulated image? What if the Orphan Works legislation of 2008 had passed and you had lost your right to seek adequate compensation in a court of law? That is what this is about people. I’m certain the family of Felix Rene Mederos Pazos would have an opinion about it.

Update Concerning Shepard Fairey Photograph Controversy:

Apparently the photography issue surrounding Shepard Fairey’s poster ‘Hope’ has been solved again. Earlier reports by Reuters stated that Michael Cramer had discovered the specific photograph that Shepard Fairey had used without permission and without giving credit. Reuters confirmed that the photograph had been taken by one of their veteran photographers, Jim Young.

A new article by TIME has thickened the plot. Michael Scherer reports that the origins of Shepard Fairey’s hope have been traced to a photograph of Obama taken in April of 2006. The photograph was taken by Mannie Garcia-- who at the time worked for the Associated Press as a freelancer. The discovery was made by Tom Gralish-- a Philadelphia Inquirer photographer who was inspired by Michael Cramer’s search for truth. In my opinion, the same scenario that I mentioned concerning Jim Young applies.

Photograph of Obama taken by Mannie Garcia for the Associated Press.

From what I've read it appears that Mannie Garcia may actually take some form of action against the use of his image by Shepard Fairey-- at least in the form of discussing appropriation with Shepard Fairey. The photographer has stated that he hopes to contact Shepard Fairey in order to discuss Fairey’s use of his photograph in order to “work this out“. Garcia pointed out that "Photographers are always getting ripped off,". However, Garcia has made it clear that he is not going to seek money from Shepard Fairey.

A comparison of the Obama photograph taken by Jim Young and the Obama photograph taken by Mannie Garcia concerning Shepard Fairey’s ’Hope’.

From what I’ve read it seems Mannie Garcia simply wants to bring issues of appropriation and copyright directly to Shepard Fairey’s attention. However, it should be noted that Mannie Garcia works at the White House for Bloomberg-- so I doubt he would want to press too far into the issue.

Links to the Mannie Garcia / Shepard Fairey story:
http://swampland.blogs.time.com/2009/01/21/found-the-photograph-that-inspired-obama-nation/?xid=rss-topstories

http://blogs.phillynews.com/inquirer/sceneonroad/2009/01/found_again_the_poster_source.html
The information in this article is for general information purposes only. It is not, nor is it intended to be, legal advice for any particular person or circumstance, or for Internal Revenue Code purposes as described in IRS Circular 230. This article is not a substitute for obtaining legal advice from an attorney based on your particular circumstances.

Links of Interest:

http://blog.wired.com/underwire/2008/09/poster-boy-shep.html

http://blogs.reuters.com/photo/2009/01/15/iconic-obama-poster-based-on-reuters-photo/

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

www.nypost.com/seven/04242008/news/nationalnews/paint_misbehavin_in_team_os_street_art_107876.htm?page=0

www.laweekly.com/2008-09-11/columns/yosi-sergant-and-the-art-of-change-the-publicist-behind-shepard-fairey-39-s-obama-hope-posters/

www.myartspace.com/blog/2009/01/obama-art-phenomenon-selling-hope.html

www.myartspace.com/blog/2008/11/intentions-of-shepard-fairey-should-be.html

www.myartspace.com/blog/2008/09/obamas-obedient-artist-is-shepard.html

www.myartspace.com/blog/2009/01/brad-holland-responds-to-public.html

www.myartspace.com/blog/2009/01/art-space-talk-martin-trailer.html

Take care, Stay true,

Brian Sherwin

Senior Editor

Myartspace Blog

www.myartspace.com/blog

myartspace.com

www.myartspace.com

New York Art Exchange (NYAXE)

www.nyaxe.com

The Real Visual Message of “Hope” Behind Barack Obama

The Real Visual Message of “Hope” Behind Barack Obama

“Hope” by Victorian-era artist G.F. Watts helped inspire Barack Obama to the presidency:

"To take the one string you have left and to have the audacity to hope ... that's the real word God will have us hear ... from Watts' painting," -- Reverend Jeremiah Wright from his famous sermon which deeply impacted Obama.

Now that the hype of the 2008 election is over the press has started to piece together topics that were missed during the gold rush-- or should I say media blitz?-- for information and headlines. One of those stories involves an artwork titled “Hope”. However, this image is most likely not the “Hope” you are thinking of-- as in the portrait of Obama titled “Hope” by controversial street artist Shepard Fairey. That “Hope” was caught on waves of media lightning. No, this influential image of “Hope” is from a different era-- Victorian to be exact. It seems that “Hope”, painted by G.F. Watts, is deeply embedded within the psyche of Barack Obama.

So what exactly is the connection between Watts’ “Hope” and Obama? Apparently the Victorian painting inspired Obama’s controversial former pastor, Reverend Jeremiah Wright, to give a sermon to his congregation. That sermon was titled “The Audacity to Hope”. The sermon had a great impact on Obama who later mentioned it in his first book “Dreams of My Father”. As we all know, Obama changed his pastor’s phrase to “the audacity of hope” when he used it as the title for his speech during the Democratic National Convention in 2004. The phrase was later used as the title of Obama’s second book.

"Hope", that is the “Hope“ by Watts not Fairey-- is currently on display at Guildhall Art Gallery in London. The painting will be on display until the spring of 2009.

Link of Interest:

Victorian painting by G.F. Watts inspired Obama to harp on 'Hope'

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com
www.nyaxe.com

Banksy Splashed Out in Melbourne

Banksy Splashed Out in Melbourne

A work attributed to the world renowned graffiti artist known as Banksy has been destroyed in Melbourne, Australia. The image, known as the ‘Little Diver’, had been protected by a sheet of acrylic glass since 2007. Unfortunately, the sheet provided little defense against the individual(s) who destroyed the image in earlier this month.

The original image, which was stenciled in 2003, is no longer visible due to “vandals” pouring silver paint behind the protective sheet of acrylic glass. The destructive individuals then tagged ‘Banksy woz ere’ on the protective sheet. It was estimated that Little Diver-- before being destroyed-- was valued at over $400,000.

The defacement of ’Little Diver’ reminds one of the notorious Splasher who has been targeting works by Banksy, Anthony Lister, and other graffiti / street artists in New York City since late 2006. Could it be that Melbourne has their own ’Splasher’ now? Perhaps.

Some individuals have suggest that the destruction of famous graffiti / street works has become an art movement in its own right. There are also a number of conspiracy theories floating around-- such as individuals protecting their investment by having specific public works destroyed. In truth, we may never know why people to decide to destroy these works.

News of destroyed works by celebrated graffiti artists and popular street artists are becoming common place. Banksy is not the only target-- street works by Shepard Fairey are becoming a popular target as well. These stories are often filled with irony. For example, why is it that the destroyers of the work are considered ‘vandals’ by the media? After all, in most cases these artists create their art in areas that are considered illegal to do so. Thus, one could say that their art walks hand-in-hand with vandalism. Perhaps fame and a price tag dictates what is vandalism and what is not? Thoughts?

Link of Interest:

The Splasher
http://www.myartspace.com/blog/2007/05/art-space-news-splasher.html

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com

Art + Politics = Press

The Cavity Search by Bruce Elliott

Do you remember the painting depicting Republican Vice President hopeful Sarah Palin in the nude during the 2008 election? You know-- the painting that grabbed the attention of national news coverage simply due to its subject? Remember? Well, the man behind the painting, Bruce Elliott, has decided to place another politician in an awkward situation. His subject-- Governor Rod Blagojevich from Illinois.

Elliott’s recent painting, which is already receiving press in Chicago, depicts a nervous Governor Rod Blagojevich (Democrat) with a prison jumpsuit pulled down to his knees. In the painting Blagojevich is positioned as if he is looking at the viewer as a guard stands near wearing a rubber glove. The painting, titled “The Cavity Search”, pokes fun at Blagojevich‘s potential future if he is found guilty of attempting to sell Barack Obama‘s former seat in Illinois. The Governor from Illinois is currently caught in the throws of scandal over the issue.

The artist has stated that he created the painting because the criminal complaint against Blagojevich “stunned” him. He has went on to say that he did it to appease individuals who criticized him for having painted Sarah Palin in the nude. I think it is safe to say that he painted it because he has found the golden ticket for gaining news coverage within the current political climate.

So what is the point in subjecting my readership to The Cavity Search? Simple. I find it disappointing that the mainstream media is so quick to latch on to works that focus on political figures or political scandals-- especially when said works would not be relevant otherwise. I don’t want to be too harsh on Bruce Elliott and his paintings, but I don’t find them to be overly skillful and I think the mainstream media is doing a huge disservice by throwing artworks like The Cavity Search into the spotlight.

Perhaps Bruce Elliott should take a lesson from Shepard Fairey, the artist behind the iconic image of Obama titled HOPE which was 'inspired' by Alberto Korda's famed shot of revolutionary Che Guevara, and ‘reference’ a better image before creating his own work. Elliott could take it a step further and follow Shepard Fairey’s knack for infringing on the copyright of political artists from the past without giving credit where credit is due-- as Fairey did by exploiting the posters of Felix René Mederos Pazos without permission from the Mederos estate. Or maybe, just maybe, the mainstream media can learn a few things about art-- and the artists behind the work-- before reporting on it.

Is this the ‘new art’ fueled by Obama’s campaign that so many of my peers have been writing about at length? We all know that Shepard Fairey’s image of Obama titled HOPE-- with a steady flow of media attention-- spearheaded this ‘revolution‘. All I can say is that the one good thing about revolutions is that they are normally short. Until that time I suppose artists like Bruce Elliott will continue to ride this wind of change-- and easy media.

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com

For the Love of God: Damien Hirst Threatens Young Artist with Legal Action

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

There has been some buzz about a situation involving a young British graffiti artist and Damien Hirst. Apparently the young artist, known as Cartrain, took a lesson from Banksy’s playbook-- he displayed one of his collages in the National Portrait Gallery under the nose of security and staff. So where does Damien Hirst come into play you ask? The collages by Cartrain, which the artist has sold as prints, involve a parody of Hirst’s ‘For the Love of God’. It seems that Hirst was not thrilled to discover that a young graffiti artist had profited from prints involving his copyright protected works.

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.

People are defending the work of Cartrain by stating that appropriation is not theft. However, appropriation can be considered theft if the work is protected by copyright. It really boils down to a fine line decided by judge or jury. True, art schools and law have very different opinions about the implications of appropriation. In the case of Hirst’s work-- which is known worldwide-- one could make a case for parody within the protections of appropriation.

Damien Hirst is not the only internationally renowned artist waving the legal stick around these days. Shepard Fairey, the visual spearhead behind Barack Obama’s campaign, recently stated that he will take legal action against “bootleggers” who have “hijacked” his “style”. That said, I find it ironic that Damien Hirst would be upset over someone infringing upon his copyright considering that he has infringed upon the copyright of others. Damien Hirst and Shepard Fairey have two things in common-- they have both settled out of court due to infringing on the copyright of others and they have both threatened legal action against artists who have violated their protected works. The saying, “you reap what you sow”, comes to mind. Did I mention that Cartrain is 16 years old? ‘For the Love of God’-- Indeed.

Links of Interest:

‘Appropriation’ isn’t theft, Mr. Hirst

Damien Hirst 'threatened to sue teenager over alleged copyright theft'

How Damien disappointed us

With Barack Obama Posters Comes Fame

Take care, Stay true,

Brian Sherwin
Senior Editor
www.myartspace.com

The Intentions of Shepard Fairey Should be Examined

HOPE by Shepard Fairey

Shepard Fairey, the artist behind the iconic HOPE image of Barack Obama, has been openly upset concerning individuals profiting off of the iconic posters on Ebay. Many of the Obama HOPE posters were distributed for free after Fairey donated them to the Barack Obama campaign. There have also been some reports about the artist being upset that other artists have violated his copyright by creating similar pieces for sell. For example, Fairey informed a U.S. News reporter that once the election is over he plans to go after "bootleggers" who have "hijacked his style" in order to create "copycat images" of Obama and McCain. The article goes on to say that Fairey hopes to make the "bootleggers" donate some of their profits to the ACLU. That said, I find it interesting that an artist like Shepard Fairey would become upset when others trespass on his intentions or emulate his methods. After all, Shepard Fairey is the same artist who has been exposed several times for infringing on the copyright of other visual artists. The irony surrounding Fairey’s anger over this issue is amusing at best.

Apparently there is a new twist to this issue in that Obama supporters who have obtained the free poster have started to crease the posters in order to detract people from listing them on Ebay. The action is in response to the good intentions that Shepard Fairey had behind the creation of the poster and his donation. They are aware of Shepard Fairey’s intentions, but they are obviously not aware of Fairey's sorted past concerning the intentions of other visual artists. The artists he has stolen from had specific intentions for their work. If Shepard Fairey is unable to acknowledge those intentions why should anyone care about his? Fairey certainly did not care about the intentions of the late Rene Mederos. In my opinion, people should consider this before running to Fairey’s defense.

In 2007 a shirt with an image, titled Cuban Rider, by Shepard Fairey was listed on the Bombing Science website. Lincoln Cushing, author of Revolución: Cuban Poster Art, recognized the image. He recognized it as an altered image from a poster by Cuban revolutionary artist Rene Mederos. Having worked closely with the family Cushing also knew that the Mederos estate was not aware of Fairey’s use of the image. The Mederos poster had been reproduced in Cushing‘s book with full permission from the Mederos estate, as well as David Kunzle’s book, Che Guevara: Icon, Myth and Message. So Cushing assumed that Shepard Fairey had discovered the image within the pages of one of those two books. Needless to say, Cushing contacted the Mederos Estate. After being exposed the shirt was discontinued and the Mederos estate was paid a small royalty fee-- some have suggested that it was a mere $1,000.

Shepard Fairey recalled the incident during an interview with Liam O'Donoghue for Mother Jones. In the interview Fairey stated, “There's a piece by Rene Mederos that I used, thinking, "Well, how would I ever pay this guy anyway because he's in Cuba?" All I really changed about that graphic was I put flowers into the gun and put a peace logo in it. With Castro and Che on horses I was definitely manipulating the original intention, but at the same time, it was a really beautifully done poster and tweaking it for my anti-war agenda was a way to pass that graphic along. So when the Mederos estate contacted me, I immediately paid him the exact same royalty rate that any artist would be paid.” Thus, Shepard Fairey knowingly infringed upon the copyright of another artist and acknowledged that he did not care about the intention that the late Rene Mederos had for the poster. Rene Mederos died in 1996-- apparently Shepard Fairey was not aware of that fact.

In the same interview Fairey also stated, “A lot of the stuff that I do is designed to try to circulate things that I think are awesome back into a new crowd. Even if I'm like a hip-hop artist recontextualizing a piece like a sample, I'm not going to say I own it, because I don't feel that way. When I'm using someone else's work as a reference point, I'm just trying to give them props.”. As I’ve mentioned before, if Shepard Fairey truly wanted to acknowledge the artists that he has ‘referenced’ he would be wise to acknowledge them on his website or in some other manner instead of hiding behind the ‘hope’ that no one will find out.

I think Shepard Fairey’s intentions are clear: He can ‘reference’ you, but you had better not ‘reference’ him. He can infringe on your copyright protected works, but you had better not infringe upon his copyright protected works. He can distort the intentions of a fellow artist, but a fellow artist had better not distort his intentions. Thus, I can’t respect the man or his art not matter how good his intentions are. I think individuals who support the rights and protections of artists and their work should examine the career of Shepard Fairey in great detail before defending his rights as an artist. People should examine his intentions before complaining about how others are violating his.

In closing, Shepard Fairey should take a long hard look in the mirror before being angry at Ebay sellers or people who have infringed upon his protected works. As the saying goes, you reap what you sow.
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!

From Art for a Change-- Screenshot taken from the "Bombing Science" website 7/18/2007, where the Fairey rip-off of Mederos’ poster was being sold as a T-shirt. Fairey copied the graphic without permission from the Mederos estate. Fairey did not publicly acknowledge his use of the Mederos image until after being exposed. One could ask how many other works Shepard Fairey has infringed upon. If Fairey is paying homage to artists like Mederos and the causes they fought for it would be nice if he would do it the right way by acknowledging their legacy as well as the copyright of their work. The intention behind these works should be known.

Links of Interest:

Mother Jones Interview with Shepard Fairey
www.motherjones.com/interview/2008/03/interview-shepard-fairey.html

Obey Plagiarist Shepard Fairey
www.art-for-a-change.com/Obey/index.htm

With Barack Obama Posters Comes Fame

www.usnews.com/blogs/washington-whispers/2008/10/24/with-barack-obama-posters-comes-fame.html

Take care, Stay true,

Brian Sherwin

Senior Editor

www.myartspace.com

www.myartspace.com/blog

www.myartspace.com/interviews

Obama’s Obedient Artist: Is Shepard Fairey a Farce?

Obama’s Obedient Artist: Is Shepard Fairey a Farce? HOPE by Shepard Fairey

I recently read an article about Shepard Fairey which suggested that he is the sole reason for street art shifting toward the mainstream art world today. I don’t agree with that. In my opinion Fairey is a minor dot concerning mainstream acceptance of street art. True, his image of Obama titled ‘HOPE’ has sparked a following, but that hardly makes him a major player in the underground scene or mainstream scene. In fact, one could say that he is simply riding the coat tails of Obama in order to achieve art stardom or that Obama is using Fairey in order to appeal to the youth of the United States. What better way to appear hip than to utilize the skills of a street artist, right? One thing is for certain, no matter who is using who or if it is truly a mutual effort-- there is a message just under the surface of ‘HOPE’ that should be examined before hype sways opinions.

For those who don’t know, Shepard Fairey is a street artist who is known for his guerrilla art tactics-- as in placing posters, stickers, and creating stencil work and other aspects of street art in places that are often in violation of the law. Due to the nature of Fairey’s art he has been arrested several times. For years he focused on images involving the slogan “Obey” as a way of provoking people to question their obedience within the context of society. While anti-corporation and anti-government themes are not overly original-- especially as far as street art is concerned-- Fairey’s work at that time had a message and a following that was beyond the control of any specific political party.

Enter Obama. Fairey’s Obama inspired art is due to his fandom for the candidate. In fact, the ‘radical artist’ was cautious about approaching Obama as a subject for his work due to the concerns he had about how his use of the Obama image would be viewed by the Democrat Party and the public. He was worried that his work might hurt Obama’s campaign. Thus, the street artist known for being radical and against political and corporate obedience sought acceptance openly from a political party-- he traded his edgy street virtue for a new vision of hope.

Fairey has stated that that at the time Obama’s camp gave him an “unofficial wink and nod” concerning his desire to use Obama’s image within the context of his work. The unofficial acceptance was enough to spur Fairey into production. In a sense, his work no longer explored the concepts of his ‘Obey’ imagery-- at least not in the way it had. Instead, his new message became ‘Obama’ which ironically challenged his previous visual statements about obedience and the avoidance of political and corporate hype as far as I’m concerned. I'd go as far as to say that Fairey's recent work fractures the very foundation of his past. Thus, the validity of his work is in question in a manner that goes beyond the common charges of plagiarism that has haunted his progression as an artist-- more on that later.

Guns and Roses by Shepard Fairey

Left: Political power comes from the barrel of a gun - Artist unknown. 1968. Chinese poster from the Great Proletarian Cultural Revolution period. The title of this poster quotes the famous pronouncement made by Mao Tse-Tung. Right: Fairey's plagiarized version titled, Guns and Roses. Original concept? You decide.

Now to the surface of the matter. The original concept for the Obama ’HOPE’ image involved heavy borrowing from Alberto Korda's famed shot of revolutionary Che Guevara. It involved the slogan ‘PROGRESS’ instead of “HOPE” and was very successful having sold out within minutes of being released. Fairey was contacted again by the Obama campaign shortly after the success of the red, white, and blue ‘PROGRESS’ Obama print. The Obama campaign sought an officially sanctioned poster in the same style. However, Obama’s campaign was worried that the ’PROGRESS’ slogan would be considered Marxist by the public. Thus, with Obama’s official endorsement came change of a different nature.

Under the ‘pay grade’-- I mean watchful eye-- of the Obama campaign Fairey had to use a photo and slogan approved by the Obama campaign. In a sense, he was told what to do as well as the message to convey. The end result is an image that is nothing more than political-- as well as corporate-- propaganda just under the surface. The redesigned image was destined to feature the now famous- and not so Marxist- ‘HOPE’ slogan that has captured the attention of millions. Fairey, obedient to the Obama campaign, altered the meaning of his original message as well as the image itself. In my opinion, that action demands questions concerning the validity of Shepard Fairey and his art. Does Fairey stay true to the streets when making a statement? True to himself? True to the philosophies he has built a career on? Or can his message be bought and sold? Assimilated into the very entities he once railed against?

Fairey has stated, “I didn't want anything I did to be a liability or an unwanted endorsement," concerning the art he has created with Obama as his inspiration. Fairey’s Obama inspired merchandise has earned over $400,000 for the Obama Campaign. Fairey claims that he has donated 100% of the profit from his Obama inspired works to the Obama Campaign, stating, "I have not kept one dime from the Obama posters," in a recent article. In a sense, he has tipped his hat to Obama. That is exactly what troubles me about Shepard Fairey. He will go lengths to obtain unofficial and official approval from the candidate he supports while at the same time failing to ask permission when ‘borrowing’ images from the work of other artists for his own art. If he was worried about the liability his images might be for Obama I would think that he would show some respect concerning the liability he may or may not project upon the careers of those artists and their estates.

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!

From Art for a Change-- Screenshot taken from the "Bombing Science" website 7/18/2007, where the Fairey rip-off of Mederos’ poster was being sold as a T-shirt. Fairey printed the graphic without permission from the Mederos estate. Fairey never publicly acknowledged or apologized for his use of Rene Mederos image. However, that did not stop his bookkeeper from pulling the shirt off the site, acknowledging the copyright violation, and offering a royalty check to the estate-- according to Art for a Change and Lincoln Cushing, an art historian and author who brokered a royalty agreement between Fairey and the Mederos estate. If Fairey is paying homage to artists like Mederos and the causes they fought for it would be nice if he would do it the right way by acknowledging their legacy as well as the copyright of their work.

I realize that many people will not enjoy reading about my opinions of Shepard Fairey. During discussions I have had about Fairey and his recent work it is often stated that the most important aspect is that street art is gaining the acceptance and credit that it deserves. Many people feel that Shepard Fairey is spearheading the validation of street art as a legitimate form of art. In fact, some people have suggested that Fairey’s Obama inspired work is changing how the mainstream art world views street art due to the success of the Obama ‘HOPE’ image. I’m sorry, but I don’t agree with that. The fight for said acceptance has involved several key players-- not just Shepard Fairey. The blunt of that work was paved in the 1980s… long before the success of Shepard Fairey. I'm certain the history of the acceptance of street art goes back further than that.

Fairey knows the history... because he has obviously 'borrowed' more than a few images from the 1920's and 1960's. Credit should be given where credit is due-- that goes for the rich history of street art and for the art that Fairey has profited from in his own work by 'borrowing' at will. Selective history is great for hype-- especially if the art in questions involved a popular candidate-- but in the end it will make Fairey look like a fool-- if his Obama inspired work is remembered in the first place. Selective history can also build a career as long a people don't take notice of it. Unfortunately for Fairey... some people have-- for example, the article on Art for a Change.

To sum this up. Artists can flip-flop just as much as politicians. They can also avoid questions as politicians do. I have to question the ethics behind Fairey’s art and I had hoped to go straight to the source. Unfortunately, it does not seem that Shepard Fairey is open to answering questions. I first made contact on October 22nd 2007. My emails to his website had went unanswered. However, on September 4th I received an email from David Scharff. Mr. Scharff stated that he represented Shepard Fairey and Studio Number One. He asked me if anyone had replied to my interview requests. I informed him that I had been trying to make contact and asked again if an interview was possible. It is now September 21st and I’ve not received an unofficial or official response from Fairey or his team. Shepard, if you are reading this I would like to challenge you to a town hall debate about your art, ethics, and the hype surrounding both. Note my sarcasm-- though I will be in Miami this December for Art Basel if you are interested...

Before the hate mail and comments arrive I want to make it clear that the rejection by lack of response from Fairey and his team is not the reason for my harsh response concerning him. If I did have an opportunity to interview him the questions would have been tough and they would have dealt with some of the very issues I’ve mentioned in this post. It would have been nice for him to face it directly so that he could tackle some of the negative views involving his art and practice. Thus, I can only assume that serious questions-- hard line questions-- are being avoided all together with little follow-up as to the statements from answers he has given in past interviews. My interview requests are refused all the time-- that is not the issue. However, I'm normally told "yes" or "no" within a reasonable amount of time. I can only assume that tough questions are being avoided concerning the validity of his art and the contradictions of his practice. That said, I have a responsibility to report artists and work as I see it-- especially when they are covered in the news three times in under a week as being an influential force.

What do you think about Shepard Fairey and his art? In fighting the system visually has he-- in the end- joined the very system he once stood against? What do you think about his 'borrowing' without permission or failing to acknowledge credit until his actions are discovered? By 'borrowing' from images without permission or acknowledgment does Shepard Fairey mock the social issues those artists represented and stood for? Should he pay homage where homage is due by informing people about the artists he has 'borrowed' from as well as what their work stood for? Is he the reason for the boom in interest concerning street art? Is Fairey to the US what BANKSY is to the UK? What would you do if he 'borrowed' from you? Is parody sometimes used as an excuse to steal images? Does Obama's choice in calling on Fairey for campaign material reflect support for the Orphan Works bill? Is Fairey an example of how the Orphan Works bill may end up abused if passed? Should that concern artists in this election? Is Fairey a farce? Does it matter? What say you?

EDIT:

Don't use the Picasso philosophy in order to justify Shepard Fairey’s art. First, Picasso’s words are often taken out of context. Second, even if he did mean it that way there were no legal protections for visual artists at that time. There are today and they must be acknowledged or else we are all victims. Though if the Orphan Works bill is passed I’m sure we will see more artists like Fairey trying to exploit the work of others as long as they can before being caught. Perhaps Fairey could form an art movement called Fairism if it is passed?

For the purpose of educating-- observe quotes from a recent interview with Shepard Fairey:

“When I'm using someone else's work as a reference point, I'm just trying to give them props.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

If Fairey wants to give those artists ‘props’ don’t you think he should acknowledge them by name or at least respect what their image stood for if the artist is not known? Should he show examples of the work he 'referenced' alongside his work or at least acknowledge them on his website?

“I give money to the Zapatistas for all the prints of Subcomandante Marcos that I made. I just raised almost $100,000 for Darfur. I challenge anybody to fuck with that, know what I mean? It's not like I'm just jumping on some cool rebel cause for the sake of exploiting it for profit. People like to talk shit, but it's usually to justify their own apathy.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

I get it. Since Fairey donates money to good causes we are not supposed to question his methods or possible violations of artist rights concerning his work? One could say he is exploiting the causes as a buffer-- as a protective barrier-- to fend off anyone who challenges his intentions or art. I'm sorry, but I don't think that people should use those who have suffered as a shield to protect themselves.

“I don't want to demean anyone's struggles through casual appropriation of something powerful; that's not my intention.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

Casual appropriation? If that is the case why did his bookkeeper offer a royalty check to the Mederos estate? Why was there very little press about that? Seems it was hushed up.

“A lot of the stuff that I do is designed to try to circulate things that I think are awesome back into a new crowd.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

By projecting it as your own work?

“There's a piece by [Cuban artist] René Mederos that I used, thinking, "Well, how would I ever pay this guy anyway because he's in Cuba?" All I really changed about that graphic was I put flowers into the gun and put a peace logo in it. With Castro and Che on horses I was definitely manipulating the original intention, but at the same time, it was a really beautifully done poster and tweaking it for my anti-war agenda was a way to pass that graphic along. So when [Mederos' estate] contacted me, I immediately paid him the exact same royalty rate that any artist would be paid.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

Nice save. So it is OK as long as the artist or estate does not find out? It is OK to knowingly rip off another artist and violate copyright laws because they might be hard to reach? Is it best to 'borrow' from work outside of the US so that maybe people won't notice?

“No artist has ever come to me and said, "Hey, I'm unhappy that you took this and used it." Most say, "I really like what you're doing; I'm glad you did that. Now that we know each other, let's do a more official collaboration." They see the way I'm using the images is not disrespectful, and they dig it.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

Names please.

“I don't have a specific political affiliation.” = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

Say what? HOPE? Obama?

“One of the reasons I started my clothing line was because I went into an Urban Outfitters and they were bootlegging my star logo on T-shirts. To see it in there, just ripped off, was definitely upsetting to me, because I was still totally broke at the time. And the reason I get pissed off about stuff like that is because I didn't build up the resonance for that image just to hand it off to someone to exploit." = Shepard Fairey from his interview with Liam O'Donoghue for Mother Jones.

Shepard Fairey can 'borrow' or 'reference' others, but we can't reference him? How wealthy was Mederos when he started creating his art? What about Felix Beltran, Gary Grimshaw, Rupert Garcia, Pirkle Jones, Ralph "Bingo" Chaplin, Vladimir Kozlinsky, Dmitry Moor, or Koloman Moser? Granted some of the works created by the artists listed are indeed within public domain. However, if Fairey is going to suggest that he is giving 'props' to those who came before he should at least acknowlege the art that he has used and the history behind those works.

A simple page dedicated to those artists and the history and meaning of their work on his website would go a long way in making things right. I might even appreciate his work if that were to happen. I actually liked his work until I discovered the truth behind his deception. However, considering that he has mentioned the risk of being 'busted' for 'borrowing' or 'referencing' other artists in some of his statements I don't think he cares about the history or meaning behind those works or the artists themselves. Shepard Fairey cares about Shepard Fairey. Maybe that is why he avoids some interviews? The contradictions are very amusing.

Links of Interest:

www.obeygiant.com

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

www.motherjones.com/interview/2008/03/interview-shepard-fairey.html

www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/09/17/DD0M12SGKS.DTL&feed=rss.entertainment

http://blog.wired.com/underwire/2008/09/poster-boy-shep.html

Take care, Stay true,

Brian Sherwin

Senior Editor

www.myartspace.com