Property Rights, Copyrights and Shepard Fairey

Obama Hope

Obama Hope by Shepard Fairey

Shepard Fairey, 38, the California street artist who accelerated to fame with his Obama-Hope portrait has pleaded not guilty to vandalizing property following his arrest in Boston Friday night. While he is in town for an exhibition of his work at the Institute of Contemporary Art, Mr. Fairey may have also been painting “Andre The Giant” graffiti on several properties without the consent of the owners. “I’d love … to feel like the culture of Boston continues to encourage freedom of expression,” said Mr. Fairey said after entering his plea on Monday. “If that’s not going to be the case, I’ll deal with that.”

Barack Obama by Mannie Garcia, AP

Barack Obama by Mannie Garcia, AP

Meanwhile, Mr. Fairey has filed a lawsuit against the Associated Press regarding the iconic portrait of Barack Obama that now hangs in the Smithsonian Institution’s National Portrait Gallery. Although the artist now acknowledges that he used as the basis of his portrait a photograph taken in April 2006 by AP photographer Mannie Garcia , Mr. Fairey has asked a judge to rule that he did not violate AP’s copyright. He contends that he is protected by the Fair Use statute, which allows for the limited use of copyrighted material in creating original works of art. Mr. Fairey further alleges that his art has a higher purpose than the photograph, “to inspire, convince and convey the power of Obama’s ideals, as well as his potential as a leader, through graphic metaphor.” (Perhaps a class-action lawsuit will be filed against Mr. Fairey for false representation and violation of consumer protection laws, but that is a topic for another day.)

The AP had twice threatened a copyright infringement lawsuit against Mr. Fairey, but was holding off on filing as the company tried to negotiate a settlement with the artist. “AP believes it is crucial to protect photographers, who are creators and artists,” said AP spokesman Paul Colford. “Their work should not be misappropriated by others.”

Clearly Mr. Fairey is a man who either does not recognize boundaries or does not respect them in his pursuit of his personal freedom of expression. He has unquestionably created a dynamic portrait from Mannie Garcia’s photograph, but the photograph also stands alone as a powerful image.

The topic of the transformative use of others’ photographs came up frequently in my art college days. One of my printmaking professors had done a stunning limited edition lithograph based on a photograph by Margaret Bourke-White, the first photographer for Fortune magazine and the first woman photojournalist for Life magazine. Penciled in the artist’s hand on each lithographic print in the edition is the title: “Transcribed from a 1937 photograph by Margaret Bourke-White.” In this case the artist did not appropriate the photographer’s image, he humbly paid homage to it.

See Also:
Creator of iconic Obama portrait arrested (Yahoo News; February 7, 2009)
Obama Hope artist seeks ‘fair use’ ruling in copyright fight with AP (CBC; February 9, 2009)
Obama ‘Hope’ Artist Arrested In Boston (WCVB-TV/DT; February 7, 2009)
AP Sued by Shepard Fairey Over Obama Image Copyright (Update2) (; February 9, 2009)
Shepard Fairey pleads not guilty to Hub vandalism (Boston Herald; February 9, 2009)