Shepard Fairey Counterfiles in Associated Press Obama Poster Conflict


46 Responses to “Shepard Fairey Counterfiles in Associated Press Obama Poster Conflict”

  1. Anonymous says:

    Copyrights (it isn’t ‘ip’) is all about protecting the rights of the creators, right?

    Or is it just about employing lawyers?

  2. Marshall says:

    #26 – you’re right – but we’re talking about commercial advertising in the service of a political campaign. I think there’s a bit of a category overlap here. Shepard Fairey’s “Hope Poster” is a commercial advertisement in the service of a political campaign. I would presume that the fair use debate here would relate to soley to the commercial side of things (I’m presuming that the producers of political advertising are held to the same standards regarding fair use as non-political advertising, in terms of the responsibility to license images), and that the political side of the work would only come into effect if a freedom of political speech issue was in play, which in this case, is not.

    Sorry if I seemed unclear in my terms in my previous post.

  3. Tdawwg says:

    Oooooh, AP with the smackdown!

    How long will it be before someone decides to sue Fairey and document it as an art project? Any takers?

  4. Marshall says:

    #27. Actually, when it comes to fine art for reporting purposes, the nature of copyright can be so labyrinthine and protective as to make it difficult even for the owners of the artwork to use its image. Only works that are in the public sphere, or where any possibly copyright laws have expired are technically legitimate. Many museums that own major works by European artists are unable to publish images of the works in their own collections, even though they own the works outright and the artist has been dead for decades, without permission from the estate of the artist.

    Depending on your legal interpretation, images taken by a photographer of an artist’s work enter a weird legal category, where the artist holds copyright on any images taken of their work, but the photographer has a second, overlapping copyright on the photograph, and neither party can use the image (even if both are in possession of identical negatives, originals or flies) without the other’s permission.

    Professional journalists who cover museums and galleries are usually limited to using the exact files and images that are provided by those sources, and often under extremely limiting terms. When you get PR packets for exhibitions, they come with sheets of thumbnails with details for all of the images, sometimes a CD containing cleared “media images” and you might be able to request a specific image not already fed to you – if your publication is big enough to warrant the effort from the PR department (Museum PR departments are usually willing to go the extra mile, in their defense). For a recent Getty show of August Sander that I covered on my website, I was allowed a choice of six images, of which I could only have files for two, which had to be hosted specifically on my website for a limited time and which also had to be accompanied by a lengthy piece of copyright related text. Rather than be subject to that, didn’t use any image at all.

    Many newer galleries and museums that are starting to get it allow you to come in, take your own shots and use them, but that’s still fairly uncommon. Some museums have gotten too cool for their copyrights – LACMA recently allowed me and a pile of other folks to photograph damn near their entire current show on German post-war art, all of which is definitely under copyright (German copyright law extends on all works created by an individual until 70 years after their death), and much of which will remain in that state for decades to come. So even though I and numerous other photographers have all those images, we can’t use them without taking a possibly irritating legal risk.

  5. Marshall says:

    #33 – Actually, there is an important difference as applies to this case. The key here is the multiples produced. If a “fine artist” makes a relatively small (like 1-5) series of images that would, in a commercial context, be considered infringement, that artist is in the clear. That’s why painters can paint Mickey Mouse getting serviced by enema nurses (or whatever), without Disney needing to be paid for the rights, or being able to refuse those rights. That’s because art is considered to have certain free speech rights, as it is made as part of a public discourse on ideas and aesthetics.

    But when an artist makes many, many copies of an image that is clearly based on copyrighted work or intellectual property, that artist is considered to be engaged in a “commercial art” practice, and that means that they don’t get to play fast and loose with other people’s copyrighted works in the name of artistic freedom. In other words, try making 20,000 Mickey Mouse gets an enema posters, selling them at The Gap and prepare to be sued.

    Oh, and you’re right, the aesthetic difference between “fine art” and the entire staggering juggernaut of the art industry that stands outside that elite tip of the iceberg is largely based on snobbery, but there are also important legal and business distinctions that are made, and it’s those distinctions that are being debated here.

  6. Anonymous says:

    I tried to sign in but they currently are rejecting my password. This I don’t believe is that complicated. I don’t believe Fairey did much to reinvent this as an image. He added some colors and did some minimal changes. You can not take a photograph which is someone else’s IP and then use it in an advertisement which is what this is. For instance you couldn’t just use an Ansel Adams photograph and use it as a backdrop for a glass of ice tea that your advertising. It doesn’t matter if you profit from it or not. And although it maybe less straight forward if the issue of fine art – here also I think its wrong. We all remember how Huey Lewis’s song “I want a new drug” (not sure if this the exact title) was transformed into a movie theme song by Dave Parker. And most people would agree that this is a ripping off of Huey Lewis’s IP.

  7. mmbb says:

    Oh, holy fcuk this pisses me off.

    Imagine if all of the billable hours from one side was spent on… oh, i don’t know, maybe more important or relevant issues?

    I’m all for protection of IP. But, but, but, countersuit? Really? Why not make it a preemptive class action lawsuit while you’re at it?


  8. Anonymous says:

    Statement from The Associated Press:

    The Associated Press is still in the process of reviewing Mr. Fairey’s response to its Counterclaims, but it is very revealing that rather than present any evidence to justify his own obvious misappropriation of the AP’s copyrighted work, he instead focuses on making collateral attacks on the AP, one of the oldest and largest news organizations in the world, regarding standard newsgathering activities.

    Even more disappointing is the fact that Mr. Fairey appears to have deliberately omitted from his filing information regarding the newsgathering context in which the various images were generated and in which they are used.

    We note that Mr. Fairey admits that he engaged in the hypocritical conduct discussed in the AP’s Counterclaims, including using the work of others without obtaining a license while at the same time threatening others for using his own works.

  9. huntsu says:

    I love this. The media lives and dies on fair use, but doesn’t want to extend that right out to others. Live by the sword, die by the sword.

  10. Anonymous says:

    If I am following their argument correctly, then it is a violation of any news outlet to picture the art of any artist? As in, The New York Times was in violation of copyright laws when it ran photos of “The Gates” in Central Park? This could be a very long road.

  11. Phikus says:

    As per usual, let the “Fairey is a hack” crowd begin their tired bashing again…

  12. dragonfrog says:

    That pretty much sums it up, I guess. The AP can stop running photographs of pretty much anything, or they can shut up.

  13. escowles says:


    Fairey is saying the AP can’t have it both ways. If Fairey making transformative use of the AP’s photo isn’t fair use, then the AP making a non-transformative use of his and others’ art isn’t either.

  14. Lucifer says:

    I think this is the part where Obama steps in and asks the two mothers whether they want to split the baby in half.

  15. Phikus says:

    Turnabout is Fairey play.

  16. Tdawwg says:

    @Marshall, fascinating, thanks!

  17. Marshall says:

    Not that I think the AP has much to stand on in this case, but Fairey’s Obama image was created, sold and utilized as an advertisement during a presidential campaign. Certainly any comparison between the rights issues involved in Fairey’s commercial advertising work and rights issues related to various pieces of “fine art” is debatable, if not highly questionable.

  18. ab5tract says:


  19. Steve D says:

    Anon @ 40:

    Copyright is SUPPOSED to be about protecting the rights of creators; but increasingly it’s about making sure mega-corporations can suck every last penny out of the images, characters and ideas which they frequently robbed and/or screwed the actual creators out of in the first place; most specifically, it’s about making sure “Steamboat Willy” (the first Mickey Mouse cartoon) never falls into public domain.

    Anon @ 33:

    Legally, morally and, hell, commonsensically, there is a huge, huge difference between an “iced tea” ad and a political statement. And yes: this was a political statement, not an ad. It’s sad that the Commercialization of Frickin’ Everything and the debasement of the political sphere have eroded those distinctions; but traditionally, political statements can claim the MOST protection of any kind of speech under the First Amendment. (It’s kind of what it’s there for in the first place.)

    By all accounts, Fairey created the poster and started slapping it around cities without the consent or knowledge of the campaign. AFTER the poster started going up, Fairey got in communication with the campaign; the campaign distanced itself from the original version of the poster since it was initially unauthorized and had been disseminated in legally questionable manners (i.e., “wild-posted.”) The original poster to all accounts, was created as a spontaneous and creative act of advocacy for the candidate. It was not commissioned, and does not appear to have been made for profit.

    So there’s that.

    And there’s a greater question of what harm has been done.

    A random file photo of Obama, one of hundreds, suddenly has become the iconic, standard go-to photo of Obama at that phase of his campaign BECAUSE it was the basis of Fairey’s art — not vice versa. I’d argue that Fairey’s TREATMENT of the image has at least as much impact as the image itself in the final message. (And, YES, there’s a message there though you can glibly pretend otherwise.)

    There’s a reason there was a flurry of internet gadgets letting people “Obama-ize” photos of themselves and others: the distinctive red-and-blue effect, the use of type, etc. all conveyed a tone and meaning above and beyond the actual image.

    That’s the “impact” Fairey’s lawyers keep talking about — and by “his” lawyers, be aware that we’re actually talking about Stanford’s Fair Use Project which is using legal means to reclaim the public domain back from its creeping absorption by the maws the megacorporations that are seeking to fence in any property they can lay a claim on. (And thanks to AndreinLA @ 17 for providing such an apt metaphor.)

    And in terms of appropriation — the creativity the artist imparts through his particular point of view — let us never forget the impact of Marcel Duchamp, who, nearly a century ago, by signing a urinal “R. Mutt,” laying it on its back and entering it in a sculpture contest — began a process of redefining what “art” means that continues to echo through the decades.

    I’m sure the urinal manufacturers are currently looking to sue all the art history books that have reproduced “their” art without permission.

  20. Anonymous says:

    This is what lawyers do ,argue what’s right or
    Regarding the comment about Christo’s work in
    Most artwork in public if photographed in a
    public setting is in the public domain if it
    is not the sole attention of/or say another use
    such as an illustration for commercial purposes.

    However if the artwork is cropped and used out
    of context from the way a normal citizen would
    view the artwork in a public setting and thereby
    becomes the sole attention of the viewer- copyright damages may be sought in court as a remedy.

    The Press usually copyright everything they

    The press surely has freedom to use anybodies
    artwork to illustrate a story however at times
    a fee is charged for that right by a photo stock house or other copyright holder or a payment made to a creative talent if it is a commission.

  21. Flitere says:

    Marshall said:

    Not that I think the AP has much to stand on in this case, but Fairey’s Obama image was created, sold and utilized as an advertisement during a presidential campaign. Certainly any comparison between the rights issues involved in Fairey’s commercial advertising work and rights issues related to various pieces of “fine art” is debatable, if not highly questionable.

    The only difference between “fine art” and “commercial art” is its snob appeal. Art is art, just like text is text.

    Huntsu and Escowles got it right. AP doesn’t have a special magic status that lets it reproduce images that other people aren’t allowed to use. They and Shepherd Fairey are part of the same public discourse as the AP, they have the same legal rights as the AP, and the AP has a long history of appropriating images without the excuse of transformational use.

    That’s why the AP’s own statement is phrased in flaming trollspeak: very revealing, obvious misappropriation, even more disappointing, hypocritical, threatening, et cetera. They have to puff up their language because their arguments have no force.

  22. sloansteddi says:

    Wouldn’t it be more appropriate, given the circumstances, for him to split himself in half?

  23. Anonymous says:

    How come no one ever contested the photos Fairey used for the George Bush works?

  24. nina says:

    Question: Ok, so the AP wins and Fairey has to pay. So… does CafePress now owe Fairey a commission, for their design of this page- which clearly lifts his aesthetic for their own purposes?

    I feel like a big douche for my stance on this issue, namely because I have a couple of dear friends who are photographers, do get ripped-off a lot, and whom I believe in tremendously for their work to protect the digital rights of photographers.

    The AP’s case however, is the one instance where I disagree with them- and feel that Fairey is in the right. Why?

    Appropriation where one artist creates something in one medium, and another artist then takes that something and fully re-invents it but uses it as a basis for something new, has been done in fine art FOR CENTURIES.

    Did Andy Warhol give a commission or sign a rights for usage contract to Campbell’s Soups? Did the band New Order give the Itallian Rennaisance sculptor his commissions for designer Peter Saville’s image of a golden angel statuette on it’s “Technique” album cover? Yves Klein?

    A new artwork with a new point of view, is created when these artists re-appropriate the images as they do. A whole new point of view and artwork was created, when Fairey used the AP photographer’s image as reference, in his poster.

    My $.02.

  25. Anonymous says:

    Warhol’s estate was sued and lost over his use of henri dauman’s jackie o photo.

  26. takeshi says:

    @ #18:

    Fairey is every bit as well known. In fact, Google returns 880,000 matches for “Keith Haring,” 681,000 for “Jeff Koons,” 2,850,000 for “Banksy,” and more than 9 MILLION for “Shepard Fairey.” I guess a lot of other people think he’s notable, too.

    But then again, you’re anonymous. Could be that you have a point, but I’m willing to bet you’re just a sad little troll who’s pissed that somebody else is getting so much attention. If citing the AP’s use of these other artists’ work is tantamount to Fairey comparing himself to them, then perhaps it should not go unmentioned that you mentioned all of them, too. How dare you compare yourself to Shepard Fairey? Not to mention Haring!

    Fairey is indisputably an artist, and since Marshall (#23) mentioned it, yes, there are differences between commercial art and fine art. However, when it comes to fair use, judgments are made on a case by case basis. So, the comparison may indeed be “debatable,” and that seems to be the whole point. I don’t see how the comparison should be “highly questionable,” unless you can make the case that Fairey’s work is outright theft. Given the fact that it is clearly repurposed, your point is moot.

  27. JoshuaTerrell says:

    My $.02: Both parties are trying to make different interpretations of the same laws for whatever reasons.

    AP can complain all they want, but Fairey is right, they are so busted. Generally, artists are more interested in publicity for there works then for the copyrights on there creations, so photos are no big deal. But this also means that AP needs to make sure they don’t lose the bone they already have in their attempt to get the one reflected in the pond.

    The irony is that AP is now giving Fairey even MORE press coverage then they were before with this little stunt. This is the sort of media energy Fairey and other artists thrive off of. Business is booming.

  28. Anonymous says:

    Interesting argument. There are architects who will argue that you can’t take pictures of their buildings, because they are copywritten works.

    There’s also a story coming out about a TV station that issued a take down notice to youtube over a video that they aired of a youtube video. That original poster of the video was the same poster of the tv-run video clip. Who owns what?

  29. takeshi says:

    Yes, there are legal distinctions. How important they are is debatable. Again, as fair use arguments are considered on a case by case basis, yours is not the guiding principle drawing such distinctions.

    “But when an artist makes many, many copies of an image that is clearly based on copyrighted work or intellectual property, that artist is considered to be engaged in a ‘commercial art’ practice”

    Not true. In part, at least, it depends on how much money is or is not made. So, it is not merely the reproduction of a work that determines its “commercial art” status. It must also be commercial in nature, and such motives can be tricky to establish. Moreover, not all of the criteria need to be satisfied for a fair use argument to be successful.

    “Not that I think the AP has much to stand on in this case, but Fairey’s Obama image was created, sold and utilized as an advertisement during a presidential campaign.”

    So, you don’t “think the AP Has much to stand on,” but you clearly believe that Fairey is in the wrong. Your opinion conflicts with those of Fairey’s defenders, and my opinion is that not every judge in America would agree with your opinion. Maybe you believe that, too, or else you might think that the AP has some chance of winning. The real question is: if you’re not taking a position against Fairey’s fair use argument, why are you bothering to argue against the legitimacy of his art as “fine art” in the first place? A pointless endeavor, frankly.

    If, however, you are looking to establish that he is guilty, shouldn’t you have more faith in the AP, who apparently share your demonstrably narrow view and, unlike you, actually do believe they’re in the right? Not only that, but your point is invalidated unless Fairey is convicted, which according to you seems very unlikely. As to your discernment, the legal differences between “fine art” and “commercial art” are decided by judges and juries. Your opinion is worth as much as anyone else’s, but ultimately you don’t get to decide. Sorry. I would suggest that you open your mind a little to what others are saying here.

    Art is art, and Fairey made very little money from this work. Sure, he and his family may reap the benefits for untold decades to come, but that is not what’s at issue. Whether this is a commercial work or not, it is unquestionably political in nature, and therefor protected by the First Amendment to the United States Constitution. Your position seems to be: Fairey has broken the law. Why, then, do the AP not stand a chance? My view is that it is not so black and white, and unless I’m missing something that seems to be the whole purpose of the courts.

    It’s easy for us to sit around and make blanket statements about cases over which we will never preside. I cannot say for certain whether Fairey has broken the law, but it is clear that his artwork exceeds the normal definition of “commercial art,” insofar as it has been disseminated so widely that it defies such meager categorization. As to your assertion that the work in question is a “political advertisement,” it should not evade reason that Fairey was never commissioned by the Obama campaign to create the work. They may have approved of its use, albeit secretly and without lending official support; however, that does not clearly establish that the motive behind Fairey’s work was commercial, and, given the nature of his other projects, it is clear that Fairey regards the use of others’ work as legitimate and supplementary to his own artistic vision. The fact that Fairey had done work for Pepsi and other corporate giants has no bearing on the merits of this particular work.

    Contextualization is everything. I disagree with you on several points, but that doesn’t mean that you aren’t entitled to an opinion. Just as our definitions of “art” are subject to change, so are our legal definitions of what constitutes “theft.” If your opinion is that there should be swift, uncompromising implementation of unchanging rules, I’m afraid that history itself disagrees with you. And again, unless you actually believe that the AP has a legal leg to stand on, you’re arguing against yourself and others who agree with you.

  30. minTphresh says:

    that is the tasty irony of this whole brew ha-ha. the longer this shitstorm howls, the more free press s.p. gets, and the greater becomes the perceived value ( ergo price) of his artwork! also insuring himself at least a sentence or two in a future art history text. rock on, shepard!

  31. Takuan says:

    yeah, brings a smile, don’t it?

  32. Anonymous says:

    Just take that argument and flip it; they’re saying that both uses should be allowed, not that both uses should be prohibited.

  33. Marshall says:

    I think that the the standards for making a judgment on fair use in the case of commercial art, political advertising and “fine art” are significantly different that it’s important to make a distinction in this case. When it comes to fine art I think that the rules on fair use come pretty close to “anything goes”, but when it comes to derivative works that are advertising or commercial in nature, I take a much more conservative approact. Fairey’s legal team are defending his work based upon the standards of fine art, which I think is the wrong standard in this case.

    My argument has always been that the Obama “Hope” poster became a piece of commercial advertising the minute that Fairey changed the text “progress” to “hope” and began to market the image on behalf of the Obama campaign. While before that point I think Fairey’s fair use argument holds more water, after the image became purely a piece of commercial, political advertising, Fairey had an obligation to properly license the source imagery for his drawing.

    The sad thing about this dispute is that Fairey runs a business, has legal folks working for him all day long, and his company simply doesn’t have it together enough to cover their asses in a professional way when it comes to licensing images, in this case, and in many, many previous incidents (The AP’s routine legal buffoonery is equally sad, but does not excuse Fairey). It’s not like Fairey is some “starving artist with a vision”, labouring away in his garret – Fairey is the owner of a legitimate, profitable business (that happens to have an illegal advertising aspect that profits on the backs of local taxpayers, but that’s a whole other tomato), yet he uses the cover of being an “artist” to profit on derivations of the works of other artists and designers. Not that there’s anything wrong with that, but if you’re going to do it in such a high profile and profitable manner, then you should at least try to do it legally, but it seems that Fairey doesn’t think the law applies to him.

  34. Brother Phil says:

    IANAL, but my take on it would be that printing a photo of a work of art to illustrate an article about that work of art would likely be fair use.
    Archiving and selling copies of that photo separately from the article would not not be covered by the fair use of illustrating that article, and would thus be an infringement of copyright – given the context, probably a wilful one.

    Any lawyers want to call this one?
    (BTW, that Exhibit link is 404ed when I looked at it)

  35. tobiaspete says:

    …and just to be clear, I was behind Shepard 100% in this until I read that article this morning. Now I feel disenchanted.

  36. mdh says:

    your level of enchantment is your own responsibility.

  37. tobiaspete says:

    And I withdraw it from Shepard.

    • mdh says:

      good for you tobiaspete, thanks for sharing without posturing about it.

      similarly tdawwg, the silence is imagined. Your expectations for noise are your own.

  38. Anonymous says:

    It is very revealing that rather than present any evidence to justify the fact that they regularly do the same thing as Fairey only worse, they instead focus on whining about him pointing it out. Turnabout is fair play. You can’t have it both ways AP.

    This is just as bad as the RIAA suing that grandma, some people need to learn when it is best to drop it.

  39. Tdawwg says:

    Sad to see this not get the marquee front-page status of that *fascinating* (ahem) Ralph Lauren expose. Pretty deafening silence from the Fairey-boosting Boingers. Sad….

  40. andreinla says:

    A little reminder about the big picture.

    Intellectual property is an attempt to fence out, contain and own things that are easy to move and transform. This is way more difficult than fencing off parts of the physical reality, where things are solid, take space and can be directly perceived.

    Intellectual property is truly imaginary property because we can only experience it in our imagination.

    It is very difficult to properly describe, and that’s why the wall changes all the time, trying to contain it.

    There are ways to offer value back to those of us who put energy in their creations and bring them to fruition, like artists, engineers and scientists.

    The problem lies in the infinite greed driving the restricting force robbing us of the inherent freedom to create using anything around us, something we observe in the actions of children and great artists.

    We don’t have to support the greed. We are here to celebrate creation.

  41. dculberson says:

    Marshall, commercial and political are two different things and are treated differently legally.

  42. Tdawwg says:

    So is Fairey’s point that he’s suing on behalf of Koons, Haring et al.? Wouldn’t that then sort of admit defeat in the AP’s lawsuit?

    I always thought that news reporting of an artist’s images, work, etc., was covered by fair use, as it couldn’t rationally be argued that any single instance of said reporting could detract, distract, lessen, etc., attention from the original work of art, i.e., a news photo of Fairey’s “art” can’t replace said “art” in any way, shape, or form. (Indeed, by publicizing said “art,” said news agency would only be increasing Fairey’s “capital.”) Whereas it seems obvious that Fairey’s repurposed “art” completely detracts from the original AP photo, first, by slavishly imitating it in a different medium, second, by replacing it in the culture at large.

    Didn’t Justice Holmes rule on this over a century ago? Something about playing copyrighted music in public? What am I missing here?

  43. Anonymous says:

    Fairey compares himself to Koons, Banksy and Haring?

  44. hypatia says:

    @nina / #10 : specifically regarding the cafepress store, remember that Fairey donated all the proceeds from the work to the Obama campaign. There was no profit involved.

  45. Captain Squiffy says:

    There has to be a generator somewhere out there on the interweb where I can put my picture and slogan on the Obama poster. Com’on web, don’t disappoint me.

    Fair seas,

    Cap’n Squiffy

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