AP tries to shake down Shepard Fairey

Associated Press is going after Shephard Fairey for copyright infringement for appropriating their Obama photo for his iconic Hope poster. Fairey has always been forthcoming about the shot by photographer Manny Garcia, who was on assignment for AP when he snapped it at the National Press Club in DC three years ago.

Fair use doctrine, which allows exceptions to copyright law, comes into play here, as Fairey’s lawyer said in a statement.

From AP:

“We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”

I guess the Warhol estate is quaking in their boots over this. Yeah, right.

[Addendum: Sean just sent me the original uncropped AP photo. Click through to see it. Also some added info regarding the history of appropriating photography.]

Richard Prince and Sherrie Levine are two artists who have navigated the choppy waters of photography appropriation. I remember following this story a few years ago about Prince, searched for it and found there are new developments for him.

And there’s a funny story about Sherrie Levine here. Here’s the funny part:

This finds its pinnacle, perhaps, in the work of Sherrie Levine. She photographs photographs. (Once, when we were walking through the Met, Matt noticed that a Walker Evans’ print looked strange. It turned out that it was a Sherrie Levine photograph of a Walker Evans.)

40 Replies to “AP tries to shake down Shepard Fairey”

  1. I can’t believe any photographer would argue on behalf of Shepard in this case. If the courts decide on behalf of Shepard, a dangerous precedent will be set. It isn’t like Shepard couldn’t have asked for permission, or used another photograph from a photographer who would have been more than happy to have shared it.

    If anyone is interested, the US Copyright Offices page on Fair Use:

    http://www.copyright.gov/fls/fl102.html

  2. The AP has nothing here, the illustration is 100% original even if it’s based on a photo – he didn’t scan it and just up the contrast, he drew it by hand which is what he’s always done and there’s a very long standing precedent that this kind of artistic representation is covered under fair use. In my situation with the AP where I actually used their photos in my Elian Wassup video the fact that I’d made their mouths move was enough to make them different and original and covered by fair use. The AP does this all the time and has no backing. Any artist who does representational work has a source they are basing that work on, sometimes a still life, sometimes other artwork including photos.

  3. The AP can be idiots, but in this instance they have a strong case. I’ve read and reread the definition of Fair Use and don’t see where this would fit in.

    However, I do find the AP’s timing on this a bit irritating. Why did they wait til now to file a suit? They should have sent a cease and desist early last year when Shepard was first selling the posters.

    I love the poster, and have supported Obama long before he was a household name. But it isn’t tainting my opinion in this instance.

  4. I don’t think support or not of Obama should have anything to do with this – if I draw a picture it’s mine to do whatever I want with it no matter what it looks like or what I based it on. It’s 100% my creation. That’s what this image is – it’s 100% something Shepard created. If he was actually using their photo they’d have at least a little argument, but as it is he isn’t, he’s using his illustration of their photo which he’s completely legally allowed to do.

  5. It’s not traced, it’s drawn by hand. He didn’t just lay the photo down and copy it – he made an illustration by himself – something he and a million other illustrators have been doing, legally, for a very very long time. Also, have you seen the original photo uncropped? The version that the AP is waving around now is not what was originally published. I’m sending the original to Chal so he can update the post with it – Shepard took a small piece out of a much larger photo and turned it into something else entirely.

  6. I just talked to a friend and notable photographer Glen E Friedman who’s very serious about protecting his copyrights on stuff and he says:

    “Funny thing is not just because he’s my friend, but I side with shepard on this for several reasons. #1 the shot is literally a dime a dozen shot, absolutely nothing special about it, Shepard made it special, in fact the un-cropped original i’ll attach here, as you can see was more important before he cropped it for his art. (george clooney made it special)! and #2 he actually donated every penny he made from it back into the campaign to get Obama elected. Unfortunately all the after market sales of his posters he has no control over, and the people who bootlegged his stuff and sold it of course he has no control over. and when he first created it it was mainly a wheat paste poster made to go around the country before super tuesday, it got viral after that. at which point he probably just should have approached AP for rights which he probably could have gotten pretty cheaply for this use, just to be 100%. but so goes the life of a graffiti/street artist. in the mean time one is in The Smithsonian now. #3 if Shepard did profit from the use other than the obvious gain we all receive by not having a total piece of shit head of state, i as the photographer would certainly be concerned, but when an image is used for charity or something other than straight merchandise that helps a “cause” not just some ones’ bank account, I’d be cool with that. But make merch of an already iconic image, and profit on it, or attach your brand to it? without release from the image maker or the subject? and indeed i will make sure you get dragged through hell if i can help it.”

    I’ve sent the photo to Chal so he can add the original photo to the post.

  7. Markland, you know I love you to the bottom of your racist soul, but in this case plenty of courts have guaranteed the right of an artist to appropriate images originally created by others. And in this case, Fairey has changed the image enough from the original, and put it to such different purposes, that he definitely falls within the purview of fair use. I believe the legaleze requires that the artist’s alteration of the original be “transformative,” and it can absolutely be argued that that is what Shepard did.

  8. …and as a classically trained portrait artist looking at the two versions now I can tell you that if we’re comparing the big photo on the jump-thru with Shep’s illustration, they are absolutely different–his head is at a slightly different inclination, his face at a slightly different angle, he’s more face-on in the illustration, the eyes are focused differently, and there’s different volumes of negative space around the head in the different images. Without busting out my ruler or straight-edge, I have to say Shep literally made the image more “iconic.”

  9. Again, the photo Sean sent in IS NOT THE ONE SHEPARD USED. The AP did not doctor the photo to make their case.

    http://tinyurl.com/b69t4t

    This version is still “cropped” but its definitely not the same frame as presented by Sean.

    Doesn’t change the original argument, but it does change Lucinda’s POV that Shepard changed the pic so that “his head is at a slightly different inclination, his face at a slightly different angle, he’s more face-on in the illustration, the eyes are focused differently, and there’s different volumes of negative space around the head in the different images.” Nope, except for swapping out colors its the same image.

  10. No, actually it is. Shepard altered the image when he drew it so you aren’t going to find on that is exactly a copy. The one I posted is legit, the one the AP posted is wrong which just makes the case that this could be any image strong as they didn’t even get the right one. I’m not saying the AP doctored anything, I’m saying they simply grabbed one of what are probably hundreds of similar photos which just happens to not be the one Shepard original based his illustration on. The one I posted that Glen sent is the one Shepard used.

  11. Shepard used a different photo that looks even more like a second photo that the same photographer took? I don’t buy it, and find it really useless to debate evidence coming from a guy named Glen who I’ve never heard of before.

    It should be noted that according to an AP article: “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.”

    Whether or not Shepard made a cent off of this is somewhat irrelevent – had this been a short run, it would be moot. But the image was used to get a President elected. Shepard may not have profited, but by allowing the campaign to use it to raise tens of millions of dollars changes everything.

    Because at the end of the day, the one guy who never received credit, who was incredibly critical to all this, was the photographer, who Shepard could have easily sent a note to, but didn’t.

    Legally, where Shepard gets into trouble is that if the photo was a “dime a dozen” shot, he could have used one that someone tagged with a Creative Commons license, and one that allows for remixed/adaptive works. Instead, for no apparent justifiable reason whatsoever, he handpicked a copyrighted pic.

    But, again, I’m also annoyed that the photog supposedly never noticed this til now, even though even the cropped photo had been floating around the interwebs since at least early last year (the cropped photo looks unmistakably like Shepard’s print – coincidence?).

  12. I can’t believe there is even an argument around this. One artist used another artists material as inspiration for their own work. WOW, THAT’S NEVER HAPPENED BEFORE! Christ on a pogo stick pissing up a flagpole are you people serious? By people I’m lookin at you Markland ;-) Inspiration comes from somewhere and even if the AP had a rock solid stance what kind of douchebaggery would it take to file this claim? It’s the ignorant and the lawyers in the company who are spearheading this. It has to be because anyone with a clue could look at precedent and see there’s no legal footing whatsoever to stand on. It’s greed + stupidity. I’ve been a photog for over 20 years and if someone creates a new piece of art from my art well fucking good for them. But this case is different in so many ways and so wrong in so many ways. I’m too tired to go on but the AP should be ashamed of themselves.

  13. This is fascinating to me as a former communications lawyer who worked on many copyright issues. I think that, while this could be a close case and different judges could decide it differently, Fairey will ultimately win. I’m sure his lawyers will argue that Fairey turned a photo of a candidate into a political message, especially with the addition of the word “HOPE” on the poster. So this becomes a free speech issue. The courts love political speech; it’s their favorite type of free speech, and they are typically loathe to do anything to chill it.

    Also, on the last fair use factor, Fairey’s lawyers will probably argue that, rather than detracting from the value of the photo, Fairey’s poster has greatly increased its value. A regular news photo has now become a very famous one. It’s very possible that lots of people want to track down and pay to get their hands on a copy of the AP photo after they saw the poster, and that’s a pretty rare occurence. So, rather than setting some dangerous precendent, the poster could set off a scramble of news photographers and organizations trying like hell to get people like Fairy to iconicize more of their photos.

  14. Also. a bit from the photographer himself…

    Photographer Mannie Garcia had this to say over on Tom Gralish’s Philadelphia Inquirer photographer blog:

    “Of the iconic poster he said, ‘I’ve been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn’t snap. It never occurred to me it was my picture. I thought, ‘that’s familiar.’ I would see it and say that’s cool, but it did keep sticking in my head.’ He was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

    Source: aphotoeditor.com

  15. Sorry, meant to write “precedent” and “Fairey” in the last sentence. I’m getting tired …….

  16. And I will also add before I stfu that the full sized image above is not the source photograph. It’s from the same set but not the one in the AP claim. You only have to match up the stars in the flag to see that. I’m sure we can dig that one up though.

  17. Fairey has made his career at tracing other people’s photos, iconic or otherwise. I have never seen any evidence of him being able to 100% hand draw anything. Instead, his work is comprised of vectorizing art DIRECTLY from photos – probably using Adobe Illustrator to trace directly off of a digital copy of a photo. He is not eye-balling photos and freehand drawing is work. He has traced over many famous photos of celebs in the past and I have always wondered if he compensated the original photographers. I don’t buy the Fair Use excuse here because he obviously can’t create 100% original work on his own. He always has to “borrow” from an existing source (a photo he doesn’t take) to create upon and that existing photo therefore remains intrinsically important. Getting permission from photographers may not seem important when you’re a rebellious youth plaster stickers on STOP signs but when you’re a high profile Artist showing in fancy galleries you might want to cover your ass a bit.

  18. glad to see both sides voicing off hellbent here. personally I have to side with the artist and think that this is 100% about attorney fees. forgive the numeric list, but I very rarely comment over here so I’m going to go for it. (1) the alleged original photog doesn’t seem to mind and even claims he never signed an AP contract (here) (2) we know for a fact that there are 1000s of photos of obama more or less in this pose (fun link here) (3) even the Wash Post article dissecting the poster in May 2008 describes changes from the original photo, as if they were looking at them side by side (here), so it’s not like this photo basis was news to anybody whatsoever. What would be interesting to see (and I hope this doesn’t come across as petty) is Shepard’s overall net worth pre-poster vs two days ago (this is what they may consider using as argument). What would also be interesting to see is the paper trail of which posters the Obama camp distributed (if any) before saying “hey dude go make us one based on a photo we have the rights to” … because though not directly affiliated w/the campaign per se, I definitely have a “yes we did” decal here in my home, sent to me by spam magnates/pro beggers MoveOn, that was created specially by Shep featuring our main man in the above controversial pose.

    n/b: Markland shame on you for not knowing Glen E Friedman. holy good lord, that guy’s king go check his work

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