Shepard
Fairey’s use of an Associated Press photo in his design for the well-known
‘Obama Hope’ poster is a controversial issue about the line between reference
and outright theft in art. I believe that there are enough good reasons for the
use of this photograph to be protected under fair use, and that the fact that
this issue has escalated as far as it has sends a troubling message to artists
everywhere.
Fairey
claimed his use of the Associated Press photo was protected under fair use.
Fair use is a section of copyright law that determines what copyrighted
material can be used without obtaining permission from the copyright holder.
The guidelines for fair use are stated in section 107 of copyright law and are
as follows:
“Section
107 contains a list of the various purposes for which the reproduction of a
particular work may be considered fair, such as criticism, comment, news
reporting, teaching, scholarship, and research. Section 107 also sets out four
factors to be considered in determining whether or not a particular use is
fair.
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” (United States of
America).
By
examining section 107, I can see how Fairey claims fair use. First that the use
of the copyrighted material not be for commercial use. In the article, Design for Obama, the author talks about
how, when Fairey first designed the Obama poster, instead of receiving
compensation for it, he allowed for free downloads on his website and let the
image go viral rather than selling it (Heller). Obviously, things changed once
the Obama campaign took and interest in the poster and wanted to use it as
official image, but one could argue that the original use of the image was not
intended for commercial use, and therefore protected under Fair use.
Another argument in favor of Fairey in
regards to fair use connects to the fourth guideline listed in section 107 of
copyright law. This guideline says that one of the factors used for determining
if use is fair is the value of the copyrighted material. This appears to mean
that if a copyrighted material is very highly valued, it will be much harder to
obtain fair use for than a copyrighted material of lesser value. The Associated
Press photo in question appears to not have been very highly valued, due to the
fact that Mannie Garcia, the photographer who took the photo, did not even
recognize it as his when the issue first arose. The only reason that the photo
has any value now is because of Fairey. This makes it impossible to correctly
assess the value of the original photo, because Fairey is the one who assigned
most of its value. Had Fairey not used the photo, the value would not even be
an issue, which to me implies that the original photo has little value anyway,
and therefore should be available for public use.
A third argument in favor of Fairey’s claim
to fair use is the way he accessed the Associated Press photo. In an interview
with the National Public Radio, Fairey said that he had found the original
photo by doing a Google search of Associated Press photos, and searching
through until he found the one he wanted to use (Spreading the Hope: Street Artist Shepard Fairey). According to
Teachingcopyright.org, one of the types of fair use that are protected are
search engines, which, of course, includes Google (Fair Use Frequently Asked
Questions). Therefore, any image found on a search engine should be protected
under fair use. This is because, by putting the image onto their search engine,
Google changed the purpose of the image from what the Associated Press had
intended for, to “providing Google users with links to images” (Fair Use
Frequently Asked Questions).
Fairey himself also changed the original
purpose of the Associated Press image in his poster design. As he claims in a
second interview with the National Public Radio, the meaning of his art is not
the same as the meaning of the original photograph (Shepard Fairey: Inspiration
or Infringement?). While the original photograph was taken at a media event
from 2006 and was only intended to document that event, Fairey created a new
meaning for his poster. This meaning was to lend support to Obama during his
campaign, and graphically show the way he believed the country needed to head
by illustrating the person he saw best to get us there.
Furthermore, Fairey’s design of the Obama
poster and the original photograph are not absolutely identical. In the first
National Public Radio interview, Fairey talks about how he used the photo as a
reference for his poster, mostly for the use of shadows and highlights on
Obama’s face. However, the poster was designed to be highly stylized, which
meant he had to change some attributes of the original photograph. In order to
get his message of progress and hope across to the viewer, Fairey changed the
angle of his head and eyes slightly, creating a determined and focused look
that lent itself well to the overall message. Fairey did not simply take the
Associated Press photo and paste in on a poster and call it his, he used it as
a reference to create something more.
Fairey is not the only artist that uses
references to create their artwork, although a look through his portfolio would
prove that he certainly does this quite often. One could argue that referencing
photos and other material that represent current events, politics, and cultural
phenomena are just what artists do. I think that one of the most important
parts of being an artist and designer is using your talents and skills to add
to the national discourse on such topics and work to make changes. That is
exactly what I believe that Fairey did with the Obama poster, and so the fact
that he had such legal troubles with the use of this photo, which I believe has
many good reasons to be considered fair use, is troubling, and one of the
reasons Fairey originally filed a lawsuit against the Associated Press. Fairey
claimed in the second interview with the National Public Radio that this was an
important case to fight as an artist, especially when he considered other
artists like himself who may not have the means to purchase the references they
need to legally complete their art (Shepard Fairey: Inspiration or
Infringement?). This resonated deeply with myself, as a young artist and
designer who has little design experience outside of school, and is certainly
not among the wealthiest Americans. It’s almost like myself and others like me
are being censored based on class distinctions. The deeper issue here seems to
be about the ever-increasing gap between the rich and the poor. It sends a
message that if you cannot afford to comment on the political discourses in
your nation, then too bad, leave it to those who can. I find this troubling.
"Fair
Use Frequently Asked Questions." Teaching Copyright.
<http://www.teachingcopyright.org/handout/fair-use-faq>.
Heller,
Steven . "Design for Obama." How Graphic Design Shapes Popular
Culture. n. page. Print.
<http://naz.mrooms3.net/pluginfile.php/369704/mod_resource/content/1/How
Graphic Design Shaped Pop Culture-Obama poster.pdf>.
"Shepard
Fairey: Inspiration or Infringement?." Fresh Air. National Public
Radio: WHYY, 26 Feb 2009. Radio.
<http://www.npr.org/templates/story/story.php?storyId=101182453>.
"Spreading
the Hope: Street Artist Shepard Fairey ." Fresh Air. National
Public Radio: WHYY, 20 Jan 2009. Radio.
<http://www.npr.org/templates/story/story.php?storyId=99466584>.
United
States of America. Copyright Office. Fair Use. Washington D.C.: U.S.
Copyright Office, Print. <http://www.copyright.gov/fls/fl102.html>.
