Shepard Fairey’s Tale: A Missed Opportunity for Copyright Legislation

January 20th, 2011 by

As of Jan. 12, 2011, the Associated Press and Shepard Fairey have agreed on a settlement. The feud was over a 2006 photo of then Senator Obama (left), which AP said Fairey used without permission for his HOPE poster. (AP Photo/Mannie Garcia/Shepard Fairey)

After almost four years of deliberations and legal maneuvering, Shepard Fairey and AP agreed on a settlement. While I’m not generally pro-litigation, this was one of those rare occasions when the law would have benefited from a trial. What the settlement means is that, once again, the courts were not forced to rule on what is meant by “transformative use,” which was introduced—but left largely undefined—in 2003. Instead, the courts left it in the hands of the litigants to scratch out a backroom deal. They missed an opportunity to expand the doctrine of fair use, which protects our constitutional notion of a commonwealth of ideas and the progress of science and the arts, and we, as a society, poorer for it.

Unfortunately, Fairey made a critical misstep and misrepresented his source material, and as a result, we have a settlement rather than a decision. Those of us who think that conglomerates are essentially having their way with copyright law—specifically in the form of a bogglingly long copyright term that is crippling our artistic, intellectual and cultural progress—will have to wait. And probably wait and wait and wait. And while we wait, our creative commons will continue to be owned and controlled by companies like Disney, Warner Bros. and AP.

It’s not that I don’t see where the original AP photograph “inspired” Fairey’s work; I do.  But do I think that Fairey’s work is merely derivative, or a slavish copy?  I do not. I took the time to go see the actual work in the National Portrait Gallery. It is a complex and rich canvas with incredible artistic detail. Fairey’s work clearly supersedes what is, when boiled down, a routine journalistic photograph. Ask yourself how many photographs, particularly of public figures, you have seen like this one? Is this photograph, more or less, a “scene a faire” at this point? I would argue that it is.

Allowing this case to be settled privately prevents the judiciary from continuing the discourse between lawmaker and the judges who interpret those laws. (See “Separate but equal,” “Don’t ask, don’t tell.”) And it’s not just for important civil liberties. I’m not suggesting that copyright law is as important as constitutional law, the Founding Fathers insisted that it was, which is why they inserted it directly into the Constitution itself. Article 1 (Article one!), Section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Without this commonwealth of ideas—both the incentive to create and the public benefit of building on those ideas—essentially all progress comes to a complete standstill.

But over the last, oh, 83 years or so, copyright law has gotten sick. I say 83 years because the problem originated that long ago in the form of a little mouse wearing black lederhosen. I’m talking about Steamboat Willie, of course. (You may know him better as the predecessor of modern day Mickey Mouse.) Since the invention of Steamboat Willie, conglomerates have more or less had their way with lawmakers over the protection granted to artistic “authors.”  Protection at the time of the Founding Fathers: 14 years (with another 14 years if you filed to renew).  Nowadays: life of the author plus 70 years. There’s a reason the Sonny Bono Copyright Term Extension Act is also called the “Steamboat Willie Act.”

Which brings us back to Shepard Fairey. In a critical case decided in 2003 by the seriously influential 9th Circuit, the court finally fought back against corporate control of all things copyright, by introducing a concept called “transformative use.” It wasn’t really a new concept, per se, but a clarification of a copyright law term: derivative. It was the court doing its job and balancing out the lawmakers.  Essentially, transformative use means that the second work supersedes the original work, as opposed to being merely “derivative.” It adds something—something beneficial to the public.

Alas, while this case looked like a major step forward for copyright law and for creative authors, we seem to be back at square one. We finally had the attention of the nation and the opportunity passed with no impact on this critical but poorly defined area of the law.

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  • Matthew Rakola

    Manny Garcia.

    In your somewhat incomplete explanation of the case you forgot one major element. The name of the photographer who actually took the picture. Additionally, there is some question about who owns the copyright. Manny Garcia was on temporary hire with the AP but did not sign any contract. (http://photobusinessforum.blogspot.com/search?q=garcia) Therefore, copyright law states that he should own the copyright. Many people suggest that the AP then threw it’s weight around and claimed ownership. Whether it was because they thought they were better able to deal with Fairey’s legal team or perhaps they were being selfish, it’s not for me to decide. What is important is that this does set a huge copyright precedent– but not only in the way that you suggest. Speaking as a photographer (one of those content-creators types) I feel that the real issue is the assumption of copyright ownership on behalf of the AP. I’m rare amongst the photographers that I have talked to about this in that I think Mr. Fairey’s “transformative use” was perfectly legal. I think that this is supported by not only the vision that Mr. Fairey put into the work but by the fact that Mr. Garcia was informed by someone else that his image was the basis for it. (See above link.)

    This issue becomes convoluted in the ongoing lawsuit between photographer Glen Friedman and Thierry Guetta regarding the more straightforward copying of an iconic Run DMC image. (http://www.hollywoodreporter.com/blogs/thr-esq/legal-drama-shadows-oscar-nominated-75550)
    Does the fact that the original image was more iconic make a difference? Boingboing picks up the story (http://www.boingboing.net/2011/01/26/thierry-guetta-aka-m.html) as does Rob Haggart over at http://www.aphotoeditor.com

    The point is this isn’t about Mickey Mouse and how his ears has changed in the last 80 years. This is about someone making money off of another living, breathing artist’s work. Whether the offender is the AP or another artist ripping off an image, it doesn’t matter. I think that these issues need to be put into the public discourse because it’s only going to get worse. It’s a messy, messy world out there. While court cases help to draw lines I don’t think that there is ever a way to prevent them from getting smudged occasionally. I just hope that all of the original artists aren’t the ones to be rubbed out.

  • Geochief

    Thanks for posting the link to the Mannie Garcia interview very insightful into what kind of guy he is and how he feels about it. But the court case was focused on the issue of fair use by Shephard Fairey which is a bigger/separate issue than Mannie being ripped off by AP, which after reading his interview is probably not how he feels about it (a followup interview with him would be great). My hope is they took care of him.

    Great comparison to the Run DMC issue too, what appears to be the same technical issue, I used your photo as the basis of my artwork, is a different context when the underlying images is already notable, like the cover of a Greatest Hits album. The principal being that many people would assume those artistic uses are “authorized” by Run DMC so the artist is benefiting from the notoriety of the underlying image, I know i thought they were related to Run DMC when I saw them.

    This is happening all over, mashups in music and videos, remakes in other media (have you seen the Robot Chicken Star Trek episode remade in claymation as an opera? Awesome!) and it’s a great thing that more art is being created by more and more artists and accessible via the net. Right now the licensing services just haven’t caught up to the market need but they will.

  • Elindsay2001

    Mathew, you are a nerd.