Shepard Fairey’s Case of Fair Use

Posted by: on September 8, 2014   |Comments (0)|Copyright and Fair Use

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L to R: Andre the Giant Has a Posse (1989), Obama Hope poster (2008), Fairey

In mid-August, my colleagues and I completed a course on Copyright for Librarians & Educators, hosted by Duke University. A topic widely discussed and debated in the lectures and forums was the issue of fair use. Fair use (in U.S. copyright law) is, “the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.” (source)

One of the most intriguing cases of fair use for me is street artist Shepard Fairey’s 2009 court case. Fairey, known primarily for being the artist behind OBEY GIANT, battled in court from 2009 to 2012 with the Associated Press and photographer Mannie Garcia over his transformation of the photograph used to create his Obama Hope print. Fairey ultimately won in court on the issue of fair use but lost on the issue of perjury, as he initially lied about which photo he used as inspiration for his work.

Fairey’s thoughts on the matter were detailed eloquently by him in an article published by the Harvard Journal of Law & Technology called, “Reflections on the Hope Poster Case“. In it, he states his argument for why his work falls under fair use’s terms, saying he used pieces of the photo as raw material to create a heroic and inspirational political portrait, the aesthetic of which was fundamentally different than that of the original photo. On appropriation, he said: “The cultures that inspire me creatively — punk rock, skateboarding, and streetwear (graphics-heavy casual fashion) — all rely heavily on appropriation art, both because they are irreverent cultures, questioning the status quo, and because they are cultures with a rapid metabolism and throw-away mentality.”

As to why he didn’t obtain a license to use the photo, he said: “I intended no disrespect to photographer Mannie Garcia, but I did not think I needed permission to make an art piece using a reference photo. From the beginning, I openly acknowledged that my illustration of Obama was based on a reference photograph. But the photograph is just a starting point. The illustration transforms it aesthetically in its stylization and idealization, and the poster has an altogether different purpose than the photograph does.” (source)

What do you think? Does Fairey’s work fall under the terms of fair use or does he owe royalty money to the Associated Press and Mannie Garcia? For more of his thoughts on the case, take a look at Fairey’s article here.

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Posted by: on September 8, 2014   |Comments (0)|Copyright and Fair Use