Shepard Fairey: A Case of Fair Use

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

In mid-August, my colleagues and I completed a MOOC on Copyright for Librarians & Educators.  The course was presented by Duke University. A topic widely discussed and debated in both the lectures and forums was the issue of fair use. Fair use (in US 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 the one of street artist, Shepard Fairey, who battled in court from 2009 to 2012 with the Associated Press and photographer Mannie Garcia, over his transformation of the photograph that was used to create the Obama Hope print. Ultimately, he won on the issue of fair use, but lost on the issue of perjury (he initially lied about which photo he had used as inspiration for his work). Many know Fairey as the artist behind the OBEY GIANT imagery.

Fairey’s thoughts on the issue were eloquently detailed in the Harvard Journal of Law & Technology’sReflections on the Hope Poster Case“. In it, he states that his argument for his work falling under fair use is that he used pieces of the photo as raw material to create a heroic and inspirational political portrait, the aesthetic of which was fundamentally different from the original photo. Of his use of 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 did not obtain a license, Fairey 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) So what do you think? Does Fairey’s work fall under fair use, or does he owe royalty money to the Associated Press and Mannie Garcia?  For more of Fairey’s thoughts on appropriation, take a look at the Reflections article here.

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