Shepard Fairey Admits Lying in Lawsuit

By Daryl Lang, PDN Legal News

In an extraordinary admission Friday, artist Shepard Fairey said he submitted fabricated evidence after it became clear he had made a major mistake in his ongoing legal battle with the Associated Press and photographer Mannie Garcia.

"In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone," Fairey wrote...

READ ON at pdnonline.com

Mike
(Thanks to Ken Tanaka)

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Featured Comment by James Wellence: "It's pretty awful that he lied and he'll probably be charged with a crime, but you shouldn't let this action undermine the actual debate: copyright and fair use. The U.S. copyright office uses four factors to determine whether or not something is fair use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work

3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. The effect of the use upon the potential market for, or value of, the copyrighted work

My non-lawyer opinion says he failed the first and third tests, but passes the second and fourth. Which makes this a tough decision to settle."

Featured Comment by RP: "James Wellence makes a good point. Lying about the source photo was extremely stupid for many reasons, but mainly because he didn't need to. I am a lawyer, and Fairey has a very, very strong fair use argument, primarily because of the second and third factors. Copyright protects the original material that a creator contributes to the work; the less original the work, the less protection the work is afforded. Here, the photographer simply took a portrait of Obama. AP can't claim copyright in Obama's image or face, so the scope of their protection is limited—they can prevent others from using exact copies of the photos, but they can't claim ownership in the position of Obama's head or his expression. Of course, Fairey's dishonesty has thrown a monkey wrench into the whole analysis."

Comments

[stephen]

Those who can't do, teach (not true). Those who can neither do nor teach, steal (evidently, true). And then they lie about it.

[David]

Legally "fair use" or not it seems Fairey himself didn't really think it was. He HAD to have known at the outset which photo was used as the reference and tried to obfuscate. So now that the jig is up AP will dine on his bones.

[James McDermott]

Credit to the man for admitting that he lied, rather than 'misremembered'.

[misha]

Nothing less the Spanish Inquisition.

[ObiJohn]

It was, and is, a truly great iconic/propagandic image (in terms of effectiveness).

Fairey should have compensated the photographer, and his lying seems to be an admission of the fact.

Obviously, great talent is not indicative of great character.

[StephaneB]

So, he chooses honesty as a last resort?

[ch]

His whole career has involved intentional use of other's work. ('referencing' is the weasel word he uses). Read this thorough article on how he approaches his work:

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

and you will see that the Hope poster is not an aberration, but a single point on a continuous career path of this sort of appropriation. The main difference here is that for some unexplained reason he chose to lie about it at first. This behavior could be seen to indicate that he knew he was stepping over the line and tried to conceal it. Frankly, after reading the above, I think he is just a clever opportunist for whom any notoriety is a career builder.

[James Bullard]

So was this photo taken by an employee of AP? If yes, then they hold the copyright. The other photo that was allegedly the source was shot by a freelancer who held the copyright. AP had run it on a license from that photographer which did not transfer all rights. If this too was shot by that (or another) freelancer and AP only licensed it, they still aren't the owners of the copyright. Isn't law fun?

[Chuck Kimmerle]

How is it that a visual artist can claim fair use for the appropriation of an original artwork, yet musicians are sued for millions when appropriating half a dozen notes? Poor Vanilla Ice.

Personally, I think appropriation is little more than a venue for the untalented and uninspired; those without vision or creativity. Sad.

[RP]

Personally, I think appropriation is little more than a venue for the untalented and uninspired; those without vision or creativity. Sad.

All art is based on appropriation.

[Mike Johnston]

Interesting comments here. Personally, although I don't countenance lying and I agree it clouds the issue, I side solidly with Fairey here. The reason is simple and basic--it's clear to me that the "Hope" poster is a work of art, and the original photograph isn't. Of course that doesn't mean anything legally, but to my eye Sherpard Fairey transformed the source material, and almost the entire value of the resulting artwork is in what he added to it.

There's a parallel to Andy Warhol's appropriation of Gene Korman's photo of Marilyn Monroe. I don't think Korman ever was paid anything for that, and the result is perhaps the signature work in the Warhol canon (rivalled only by the Campbell soup cans, which were so literal they were hardly transformed at all, except by what's now being called recontextualization) and has earned millions and millions of dollars. Should Korman have been paid for that? I think so--at least a little, some token--but the Warhol artwork is not implicit in his photograph.

Mike

[RP]

The reason is simple and basic--it's clear to me that the "Hope" poster is a work of art, and the original photograph isn't. Of course that doesn't mean anything legally, but to my eye Sherpard Fairey transformed the source material, and almost the entire value of the resulting artwork is in what he added to it.

You're selling yourself short. That's a pretty good summary of the legal analysis.

[Chuck Kimmerle]

All art is based on appropriation

In a vague, nebulous, academic way the above statement is correct, although I prefer to think of art as being based on inspiration.

However, in the world of art, the term "appropriation" has a specific and standardized meaning: to create an artwork using elements of previously created materials, whether in parts or as a whole. That's an important distinction when talking about this subject.

[Cyril]

"How is it that a visual artist can claim fair use for the appropriation of an original artwork, yet musicians are sued for millions when appropriating half a dozen notes?"

To further the analogy, I think you would be hard pressed to find a single patch of pixels (or even pixel) from the picture that is reused "as-is" in the poster...

This seems more like using a melody and improvising some new tune based on it. Jazz musicians do that all the time and it's mostly OK.

I don't get this talk about "appropriation": it does not seem that Fairey ever laid any claim on the picture, quite the opposite. If this is wrong then any artist having ever drawn a building from a travel guide picture should start being very worried!

[Ari]

This may have an effect on the case since the original photo he claimed to have used he cropped and edited. In this case it is much more of a paint by numbers.

As far as the originality of the work is concerned, Fairey might have shot himself in the foot again when he claimed he searched through thousands of photos before coming to just the right one. So while on the face the work seems unoriginal, "a portrait of Obama" as far as Fairey was concerned it is quite original because not any portrait would do out of thousands.

[robert e]

I doubted that copyright and fair use issues could be made any muddier than the parties in this case had made them, but Fairey proves me wrong.

I'd like to think that this is one of those times where teasing away the irrelevancies further clarifies the important issue, but I have a feeling that this is headed for a confidential settlement that won't clarify anything.

I believe Fairey's claim that he made an honest mistake, then stupidly covered it up in order to avoid weakening his case. Partly because, at this point, why not the muddiest possible explanation?

Besides, that's all irrelevant to the question of whether the poster was fair use. But, as experts have said, relevance will depend on judges, lawyers and the juries, should it come to that.

Let's remember that Mannie Garcia, who took both photos, contends that he and not AP owns the rights. Garcia says he admired the posters for months without recognizing his own photograph in them, never made the connection himself, and even after he found out he supported the project. He's said he would like credit and maybe some sort of token compensation.

His statements are generous and reasonable, but probably irrelevant to the question of fair use.

Not that my opinion is relevant, but I agree with Mike that Fairey's poster is a work of art with a completely different intent and effect than the original photograph, and therefore fair use.

[ctein]

Dear Cyril,

The core issue of ALL intellectual property law is what's called 'appropriation.' All works are built on the shoulders of others, whether consciously or not; everyone, including the law, knows this. The question that defines all the law is what do you, a creator, "own" and what can you "use."

To put it another way, are you being 'inspired' or are you 'copying?'

This underlies every bit of patent, copyright and trademark law. Inspiration is recognized as not only unavoidable but desirable! But when has someone crossed the line?

That's the issue! If it were a bright shining line, most of the law would be one paragraph long. It's not and it never can be (not unless you want to prohibit or allow everything). It's a big grey fuzzy Neutral Zone, and it's where all infringement cases dwell.

The Fairey case as one that every photographer and artist should applaud, because it falls right smack dab in the middle of the Zone. By any legal scorecard you draw up, there are hugely compelling points for each side. On the face of it, the final score is a legal tie. Yet, it has to be resolved, somehow.

This makes it a GREAT case. If it is allowed to work its way through the court system, it will clarify a lot of that Neutral Zone. I'm not saying it will give you the answer you'd like, but currently you have no answer at all, legally. You just have a bunch of blowhards on both sides claiming how they are obviously right.

I hope this one gets at least as far as an appelate court decision. It'd be great if it made it to the top of the chain, but that's hoping for too much. I fear it will end up getting settled OOC, and we'll get no precedents from it.

That would be a huge shame for all of us, although it would mostly likely be in the best interests of Mannny, Shepard, and AP. But selfishly, thinking only of me [g], I'd like to see this played out to completion. The ambiguities and uncertainties are far too vexing.

My big unhappiness with Shepard is that his dumb-ass behavior will distract the layfolk from what's important, and so diminish the popular (as opposed to legal) impact of the case.

pax / Ctein

[Joseph E. Reid]

I disagree that the poster is a case of "paint by numbers." The artist's key change to the original is bathing the face in the American flag which was only the background of the original photo. That's a substantial change that moves the image into the realm of art & propaganda.
The artist's defense, on the other hand, is now garbage due to his lying. As for The AP, there's an old saying in the news business: "You can't spell stupid without UPI and you can't spell cheap without AP." It's no surprise that the organization will fight this to the end regardless of whether a staffer or a freelancer took the photo.

[RP]

However, in the world of art, the term "appropriation" has a specific and standardized meaning: to create an artwork using elements of previously created materials, whether in parts or as a whole. That's an important distinction when talking about this subject.

When you say it has a specific meaning, do mean legally or artistically? Because legally, I don't think Fairey appropriated very much of AP's copyrighted work.

As far as the originality of the work is concerned, Fairey might have shot himself in the foot again when he claimed he searched through thousands of photos before coming to just the right one. So while on the face the work seems unoriginal, "a portrait of Obama" as far as Fairey was concerned it is quite original because not any portrait would do out of thousands.

That's an interesting point. I suppose the counterargument is that Fairey looked through 1000s of photos to find the one with just the right expression on Obama's face, and the photographers (and AP) can't claim ownership in a person's expression. For example, what if Einstein had stuck out his tongue for another photographer and the photographer got a very similar shot to the one we all recognize? The first photographer would have a very difficult time claiming copyright infringement.

[Mani Sitaraman]

This is an open and shut case. It is obvious that AP, the large corporation with deep pockets filled with money for lawyer fees, owns the intellectual property rights to Garcia's photograph and should be the sole arbiter of whether Fairey can use the photograph.

As for Fairey and Garcia, they are mere peons, and have no rights whatsoever, having obviously added no artistic or intellectual value whatsoever. Garcia especially should be humbly grateful for the few copper coins thrown his way by the great and magnanimous AP.

But seriously, intellectual property rights (i.e. copyright) were conceived as a way for the little guy (i.e. the author) to extract fair rent for artistic work that is easily duplicated or copied at low cost. It was never meant to allow large corporate entities to buy these rights at a pittance, using their monopoly power against the little guy, and then rake in rent in near perpetuity.

And probably in perpetuity, actually, if the corporate distributors (such as AP) and their lobbyists have their way and cause legislation to be approved to extend copyright periods to such a degree that rent is extracted long after the concerned author, businessmen, lawyers, and lobbyists are all dead.

[Mark S.]

Seems like the cover-up is always worse than the crime. Shepard Fairey is fast becoming the Richard Nixon of the art world.

[robert e]

Ctein,

It's potentially a great case, except... I'm not a lawyer, but I worry that if this case goes any meaningful distance, issues of campaign finance and speech will get dragged in, yet another fuzzy area. I suppose whether that's a great prospect or an awful one depends on one's point of view, but it's mostly my assumption that the parties involved would want to avoid it that leads me to think we are headed for settlement.

Joseph,

I wonder if AP had any good choices once it was publicized that Fairey had used an AP photo. They likely saw that they had a weak case, but that acquiescence might have bad repercussions; but I think they also had to take some action to signal that they will protect the work of their staffers and freelancers. Again, I'm not a lawyer, but the fact that they initially avoided filing suit seems telling. Maybe they bungled it, maybe they were greedy, and maybe they made the wrong choice altogether, but I don't think they had many options. And I don't think they can now simply drop it.

[B Grace]

So, to follow the comments on fair use by several of the folks above, I can take a photograph of one of the Hope posters, convert it to B&W, and legally sell it as my own copyrighted work, right?

[robert e]

"So, to follow the comments on fair use by several of the folks above, I can take a photograph of one of the Hope posters, convert it to B&W, and legally sell it as my own copyrighted work, right?"

One couldn't really say without actually seeing what you have in mind, but if I understand you correctly, and understand the law correctly: No, you cannot. I don't know which comments you followed, but why follow anything but the law, as outlined above by James Wellence, RP and Mike Johnston?

Fairey's poster is an original work, and more than a run-of-the-mill original work, at that. No matter how simple and synthetic the concept may seem in hindsight, it was a bold and well thought out idea, masterfully executed to produce a pitch-perfect vehicle for propagating a powerful message. It was the result of years of studying, practicing and honing of the concepts, the craft and the logistics, and then of much time and effort spent applying that knowledge and experience, and passion, to that particular project.

That's a long way from a good candid photo from a panel event, or from a simple B&W photograph of the poster.

Ask yourself: if that photograph had been printed poster size, would it have been as popular, controversial or sought-after? Your B&W copy of Fairey's work would have done better; not because of what you contributed, but because of what you took.

[Chuck Kimmerle]

How exactly is it "masterful" to trace the outlines of a photograph? If you do an overlay of the original photo atop the poster, you'll see it's little more than that....a tracing. Sure, the colors are pretty, but please, please tell me that an "artist" needs to add more than pretty colors to a photograph to make it a new "original".

[Greg Brophy]

As a designer who loves propaganda artwork and own a few posters of his, Shepard Fairey has a long history of not only copying photos, he has also reused artwork from other artists. I went to school for illustration a long time ago and my teachers taught me what is fair use and what is not. For me personally I would think twice about using without at least contacting the photographer first.

A quote from here which details many more of his transgressions: http://www.art-for-a-change.com/Obey/index.htm

"In fact, I've never seen any evidence indicating Fairey can draw at all. Even the art of Andy Warhol, reliant as it was upon photography and mass commercial imagery, displayed passages of gestural drawing and flamboyant brushstrokes."

and another article that details past abuses: http://nyc.indymedia.org/en/2008/06/97988.html

The main difference now is that he stole from the 800 pound gorilla: AP and is getting hit hard for it.

Greg

[RP]

How exactly is it "masterful" to trace the outlines of a photograph? If you do an overlay of the original photo atop the poster, you'll see it's little more than that....a tracing. Sure, the colors are pretty, but please, please tell me that an "artist" needs to add more than pretty colors to a photograph to make it a new "original".

Do you also think Warhol's Marilyn Monroe picture was nothing more than a "tracing"? And Robert e makes a great point -- if Fairey added so little to the photo, why did his poster have such an impact? Would the original photo had the same impact if turned into a poster?

[robert e]

Chuck, Greg,

I'm not defending Fairey's methods, talent or character, merely the project in question. I happen to think he's derivative and synthetic, with a very narrow range, and that his work, while often striking and well designed, are usually merely clever and shallow exercises in image manipulation and sloganeering. In this particular case though, he hit a home run.

The art in question is designing a propaganda poster and campaign, which involves among other things graphic design and printmaking, politics, psychology, and marketing. These all came together in this particular project. There was no drawing involved, nor need there be for something to be original, or to be art, or to be legal fair use.

In all the current controversy, I think we forget just how effective this poster was during the campaign; at least it was where I lived and traveled. I join photographer Mannie Garcia in enthusiastically applauding the work.

That is not to say that Fairey behaved well in a moral or ethical sense at any point. I'm also with Garcia, and many others, in feeling that he acted arrogantly and irresponsibly, and I think that if he'd done the right thing in the first place, he would not be having these troubles now.

[robert e]

Apologies to all for my part in the digression. While it's fun to debate the merits of the poster as art or propaganda, or of Fairey as artist or citizen, that's not really the question on the table, is it?

To get back to the four points, re #4: I realize that passing the test is all that counts, but I do get the sense that the poster has rather enhanced the value of the photograph.

[Greg Brophy]

@Robert, yes I like the poster. It is well done and effective, but that has nothing to do with whether he is right or wrong. I was just pointing out that he has a bad past history of doing this to not just photographers, but artists as well.