Archive for February, 2009

Shepard Fairey: a fair fight for fair use?

Mannie Garcia/Shepard Fairey

Mannie Garcia/Shepard Fairey

NPR has done a great job of covering the intellectual property/fair use dispute between artist Shepard Fairey, who designed the iconic Obama “HOPE” poster for his 2008 presidential campaign, and the Associated Press, who claims that not only should photographer Mannie Garcia be credited for his work, but are also asking for a share of the profits, as well as damages. While AP was attempting to settle with Fairey’s attorney, Fairey decided to file suit against the AP, realizing that more was at stake, and that this situation represented a larger issue of how lesser-known artists, designers, grass-roots message-makers and other creative amateurs appropriate, reference, and/or attribute source images.

In principle, I think Fairey and the AP actually agree: both seem to want to give Garcia attribution for his original source photograph, which Fairey chose because of “the direction of the gaze, which I felt looked presidential […] had some vision and leadership” and “the way the light was falling,” he told Terry Gross in January. “The Mannie Garcia photo was a great point of departure for the illustration,” Fairey said. But the poster is a different image, to which Fairey has applied his artistic license and unique aesthetic treatment. “It’s a hand-illustrated image that I had to do some digital tweaks to before I started illustrating it.” For this reason, Fairey feels that he can legally claim “fair use” of the image, because the original image was graphically transformed. Its intention was transformed as well, he explains. Apparently, Garcia’s original photo was shot to document a Darfur panel back in 2006, before Obama was even an official candidate; Fairey’s image is (obviously) to promote a presidential candidate—two completely different intentions.

Perhaps some of this legal wrangling could have been spared if Fairey had done his homework. He knew the photo was an AP image, but he didn’t know the actual photographer’s name until the dispute began. “I’ve attributed it to the AP all along […] I just wasn’t diligent about figuring out who it was. I didn’t do the research and I didn’t think I needed to. I’m perfectly willing to give Mannie Garcia the credit, and I think he deserves the credit.”

So crediting the image is not the issue here, but Fairey’s legal fight is based around grass roots artists’ right to use source images without having to pay for them. He thinks they should have access to the source images they need in order to express themselves and reinterpret the images in their own way, even if they can’t afford to pay for their use. This is an issue not only for grass roots artists, but for graphic designers as well.

When I started working as a graphic designer in 2001, I never would have used a copyrighted photo or image to create a new image or illustration without obtaining the rights for it first. But since then—and as I have been back in an academic environment for the past two and a half years—the line of “rights” and “use” has become very blurry, as we swim in an ever-deepening sea of user-created content. Designers are definitely not the only ones appropriating images anymore. And the students who are in undergrad right now have probably been appropriating images for much longer than they’ve been in design school; they probably don’t even think twice when they do it. It’s part of their natural workflow.

But I do think attribution is important. We must do our homework and make sure that the other creative people who knowingly or unknowingly contributed to our work receive the credit they deserve. As a graduate student, crediting resources—any kind of resources—is an important part of my work. It legitimizes my research process, and helps explain the logic and thinking in my own projects. I would not want someone to use something I had written, created, or designed without attributing it to me, so I feel a moral obligation to give others the same service. I don’t think it’s necessarily always about fame, glory or money, as in the Shepard Fairey case, but there is also academic and social value in being able to trace a lineage of ideas. For our thesis projects, we are asked to consider our successors as we compile our annotated bibliographies—with the understanding that our work may be a useful resource for another student someday. Visual work/property should be treated with the same respect and rigor.

Here’s an interesting closing thought from Fairey, from his January interview with NPR, in which he discusses another issue under the umbrella of design ethics: “…people need to consume with more discretion. I do commerical work for people I respect and that I don’t have an ethical conflict with  […] I’ll do work for people who I think are raising the bar aesthetically through commercial means, because I think that there are no patrons for the arts now, it’s only corporations, and if advertising is out there, why not make it good?”

Here are the NPR interviews, if you’re interested:

Feb. 26: Shepard Fairey: Inspiration or Infringement?

Feb. 5: Fair Use or Infringement? Obama Image In Spat

Jan. 20: Spreading The Hope: Street Artist Shepard Fairey


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