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