Legal battle over Shepard Fairey Obama poster takes an unexpected turn

We've been following artist Shepard Fairey's work here on Boing Boing for some time now. A disclaimer, first: I love his work, we have mutual friends, he strikes me as a stand-up guy.

Last year, Pesco was among the first to blog the Obama "Hope" poster which quickly grew far more popular than anyone anticipated. The iconic artwork spawned street cottage industries worldwide, and became an official element in the presidential campaign.

Then, the Associated Press (the same DRM-happy copyright bullies who threaten their own affiliates and try to shake down bloggers over 5-word excerpts) threatened Fairey over claims the poster was based on an AP photo, and violated their copyright. Fairey and his supporters fought back. They argued the poster was permitted under the concept of fair use because the artwork was significantly changed from the reference photo. Additionally, they added, the poster was not based on the specific photo the AP claimed -- but on a different image that required more cropping and alteration, further supporting the fair use argument.

On Friday, that high-profile case took a turn nobody expected that I did not anticipate. Fairey confessed to having made false statements to a federal judge about exactly which AP photo he used. He also admitted having fabricated evidence. Snip from his statement:

The new filings state for the record that the AP is correct about which photo I used as a reference and that I was mistaken. While I initially believed that the photo I referenced was a different one, I discovered early on in the case that I was wrong. In an attempt to conceal my mistake I submitted false images and deleted other images. I sincerely apologize for my lapse in judgment and I take full responsibility for my actions which were mine alone. I am taking every step to correct the information and I regret I did not come forward sooner.
The attorneys representing Fairey will soon step down. Nobody knows what will happen in the case. The question of which photo was used was a minor, tangential issue before -- but Friday's revelation is not minor. As David Kravetz says in his account at Wired News, "Everybody agrees the case is now tainted and that Fairey's courthouse actions could undermine his case, even if he did not commit copyright infringement." But for those who believe in the merits of the original fair use argument, there is still hope.

Read Kravets' story (some interesting links between this case and that of the BitTorrent tracker TorrentSpy), and check out Marquette University professor Bruce Boyden's blog post here. Here's Shepard's mea culpa. Here's the AP's statement - and a note on that: I found it odd that many news organizations were sourcing that statement and a subsequent report from the AP as if they were regular wire service items, without regard for the fact that the AP is also a plaintiff in the case, and therefore inherently biased.


  1. For me, this doesn’t diminish Fairey’s abilities as an artist, remixer, brand manipulator, and cultural provocateur. I still love his work and have no more or less commentary about him as an individual than I did before this case.

    1. My opinion of his work is also unchanged, but Fairey’s talent as an artist isn’t what was on trial.

  2. Son of a BITCH. I believe that the ruling in this case, regardless of which way it goes, will have far-reaching legal consequences. There is a LOT at stake here, and this is JUST the type of dumb-ass move that could tilt the balance of things against all of us who want legal precedent to swing back toward easier Fair Use. Fairey, you’re a fine artist. I hope you didn’t fuck over a bunch of other artists with your lies.

  3. Sadly Shepard has a long history of “borrowing” other peoples artwork and selling it as his own. In fact you could say he has made a career of it.

    I am all for fair use when it comes to creating art, but it’s a two way street.

    Look what happens when another artist does an Obey parody and wants to claim fair use with Shepard’s graphic. – It’s time to call out the lawyers.

    He may be a swell guy, but he seems to be lacking in the integrity department. Unless hypocrisy, lying, destroying evidence are character traits you look for in a friend.
    I guess this proves that integrity is not something you can get from a xerox machine.

    1. Fairey may have his failings but he does NOT sue people for legitimate parodies of his work. There’s an entire section of Fairey’s web site showcasing hundreds of parodies of his work.

      The only reason he sent that C&D to Baxter Orr was that Orr’s poster wasn’t a clear parody- same imagery, same context, and no real indication it wasn’t actually a Fairey poster. (I once wrote a thesis on Fairey and if I’d seen Orr’s “remix” on the street I would have assumed it was an original Fairey print). Not to mention that Orr was selling them for $25 each.

  4. “unexpected”???
    This has seemed like the obvious inevitable outcome for a while. Just look at the comparison of the images.
    Xeni….you aren’t being an impartial journalist (this time).

    Despite all of the grousing, this is a good thing. Artists should have high minimum ethical standards. This is why we are underpaid. Clients don’t understand why we don’t just steal what they need when so many unscrupulous artists do. All regard for the photographer is lost in all of these articles. I guess she’s just not trendy enough to have rights.

  5. One of the things that I really like about Boing Boing is that when something like this goes down (i.e. someone who “the gang” have stuck up for turns out to have done something wrong), they very rarely ignore it. You could-well have just not said anything about this, but you publish it and make it in to a discussion, and that’s a laudable act. Kudos.

    1. yeah, we all know BB is notable for a huge number of saturday and sunday posts.. but hey, if you need to smear I guess any excuse will do.

      I mean, two days??? get out the fainting couches.

  6. Fairey can make up whatever bullshit he wants to try to explain his actions, but he did what he did. He took someone’s photograph and made art from it, and when someone took him to task for it he showed all of the personal responsibility we’d expect from a twelve-year-old.

    I agree that it is ‘unexpected’ that Fairey would suddenly realize he’s fighting a losing battle by going to court with fabricated evidence (i.e. used this photo and not this photo, never seen this other photo, etc) and there. It’s just really disappointing that he did it in the first place.

    We need a new poster boy for fair use.

  7. Too bad he didn’t just stepped up when it was first recognized as such a fantastic poster and give credit where due. He’d have looked good, AP would look good, everyone would have a great poster.

  8. Reminds me of the other Obama image in the news – the one involving the woman stipple artist for the WSJ whose image of Obama was apparently copied. I’m curious to know if her stipple image was based on a photo…

    1. Almost assuredly the WSJ stipple image (or “hedcut”) was from a photo — I doubt Obama sat for his portrait! But I’m sure the rights to the source photo were legally obtained by the WSJ — it’s a big business with millions to loose on lawsuits, not a graffiti artist.

  9. I was wondering when, or if, BB would address this, considering previous articles in praise of Fairey. When nothing was posted last week (when this story broke), the little cynic devils on my shoulders started whispering urgently to me. But I think your take on it is exactly right, Xeni, and the little devils are sleeping peacefully again. Much respect to BB.

  10. This stuff annoys the hell out of me on so many levels due to the sheer levels of ignorance involved.

    First of all, tons of people are spouting fair use without actually having any idea of what fair use is. Fairy reproduced nearly the entire image, and the resulting artwork consists of almost solely that image. It’d be much easier to argue fair use for the inauguration poster featuring this image, because it consists of multiple other components – but with fair use laws the size of the image and its role in the final piece of work are VERY important.

    So there’s that point. Next up is Fairey’s reputation; sure he can create a good looking image – but the guy has no common courtesy for fellow artists, many of whom he consistently rips off. “They live in another country” is not a proper excuse for neglecting to credit the original work. It’s seemingly intentionally misleading to the viewer so that they hold Fairey in higher esteem, and if it’s actually not the motive (which I sincerely doubt) then it’s just sheer idiocy. So that being said, it’s not like this was a momentary judgment lapse or a one time thing for Fairey – I can produce a list as long as my arm of artists/artwork that he’s used, displayed in galleries, and sold as merchandise, that he hasn’t even attempted to credit. He has no regard for the original artist until they actually pursue legal action.

    Hey, remember the time Fairey (or at least his legal entity) threatened to sue for a parody of his Obey giant image? ( Bizarrely hypocritical, especially considering the artwork produced was actually a parody, which is protected by fair use depending on the circumstances – and that Baxter Orr was actually INSPIRED by and looked up to Fairey.

    There’s a difference between a commercial artist and a street artist. You can be both, but you have to understand that they are both different worlds, you can’t be a commercial artist without citing your work. Fairey seems to have no understanding of this, or just doesn’t care. You can’t say he didn’t profit from this either, because he did. The fact that he donated his profits to a political campaign doesn’t mean he donated them to charity – he profited directly, and used the money how he wished. If he donated the money to starving orphans, sure – that’s great and entirely defendable. But he took an image and used it to push his personal political agenda.

    I admit, he does gain some respect for actually apologizing – but honestly, if you think about it… what choice did he have? he lied himself into a corner and had no choice but to eat crow. He’s done the same thing in the past, and I’m certain he’ll do it again in the future. He’s just covering his ass while getting a ton of free publicity. It’s actually pretty smart, but completely tactless – imagine all the goddamn money the courts and parties involved would be saving if the guy just purchased or asked permission to use the image. It just puts a bad taste in my mouth. Fairey’s not putting up a fight for fair use – he’s just using it as a platform to obtain support and the recent admission to lying makes this incredibly apparent.

    So overall, I get it – he’s against establishment and that’s his thing, he’s out there getting arrested and missing gallery events in his honor (that were paid for by his fans who still love him unconditionally). Most of the time I’m fine with that, you have license to be an ass, but his constant disregard for other artists just grinds my gears. You don’t have to like them, but at least share some respect and decency within your professional community. Take a second and think about your work a bit more than how it’s going to benefit yourself – even Andy Warhol could do that.

    I’ve made some character assumptions here supported by the facts provided, and honestly I wouldn’t be entirely surprised if Fairey is actually a really nice guy. This is not a personal attack. I recommend that you get past the blind fanboyism and blind fair use support (actually go read about it) – and just look at the facts.

    And please, I beg of you, stop quoting Pablo Picasso.

  11. Oh, and as a follow-up in regards to boingboing writers in general, and after reading some other comments addressing it directly – I know you guys hold Fairey in high-regard, so I appreciate the effort to report this in a non-biased manner. You guys continually show nothing but respect for your readers and subject matter.

  12. mdh… The truth is the truth, not a smear.
    I respect BB, but the handling of this issue has been a bit off at best. If BB is supposed to shut down on weekends I apologize.

    holtt is exactly correct. He has had more than ample time to man up. It was originally supposed to be a one off freebie. People would have understood. He blew it even if he is hip and cool and his adversary in court is a big impersonal company.

  13. Conspiracy theorists:

    Please remember that Boing Boing is not

    * wikipedia
    * Digg
    * google news or similar aggregators, or
    * a News Organization like CNN, NYT, etc.

    Boing Boing is Boing Boing.

    Nowhere in this blog will you read a promise that we will always be first to post about a news story.

    Nowhere in this blog will you read a promise that we blog as “impartial journalists.” You show me where that promise is, and I will fax you a fucking cookie.

    I have bias in this story, and i disclosed it right up top. I like the artist’s work. We have mutual friends. He seems like a stand-up guy. I have no love for AP’s extensive history of copyright bullying in other matters. All of that, right up at the top of the post.

    I got word about this update on Friday morning from a friend who is close to Mr. Fairey.

    I reached out for more official word from various sources, and the news broke widely that afternoon. I was in the middle of moving my office and home, so was dealing with some personal upheaval — not cranking out a lot of new posts that day. But also, wanted to take time before posting about this.

    To the extent that we have a shared ethos or guiding editorial principles here at Boing Boing, this is one such principle:

    Do not post simply to be “first.” Particularly when you’re talking about a news story, post when you have something to add to the story, some insight to reveal that isn’t elsewhere.

    I took a couple days over the weekend (when I normally don’t blog anyway) to think about my past posts on the story, and about what I know of Mr. Fairey as a human being. I wanted to hear what others close to the case (EFF, legal experts) had to say. I wanted to hear what the AP would say. I read lots of coverage over the weekend. Then, I wrote this.

    If that ain’t good enough for you, you should stop reading Boing Boing right now.

    Also: Boing Boing per se does not cover or think or write about or not write about anything. A group of individuals who blog at Boing Boing do. I am responsible for the content of this post. Pesco is responsible for the content of his earlier related post. And so on. We often share opinions, and we do sometimes discuss what we’re writing about with each other, but there is no one “voice of Boing Boing.”

    Also: we are all lizard people and we come from planet Zoltron to pwn you.

    1. Xeni,
      Thank You. Your response was a breath of fresh air. Besides it makes my rant on yesterdays post about “Yes Men pwn Chamber of Commerce over climate change legislation” look constrained. I have yet to make a common practice of reading blogs, let alone posting replies, but in a world where I have long ago given up on any expectation of Journalistic integrity it is a beautiful thing to be offered the opportunity to interact with those who are willing to stand behind what they clearly profess as opinion. Go get em!

  14. This whole thing is ridiculous. It’s poster art. It is based on a real image. Since when is using a photographic reference to make your work a copyright infringement?!

    If that photo was in someone’s facebook album, no one would have batted an eyelid.

    Obviously Fairey panicked and screwed up, but seriously.
    I guess the more things change…

    1. I agree totally. Political art depends a lot on the images provided by the press. Political art also depends on images that are fresh in the viewers’ minds so the connection resonates deeply and makes the most impact.
      Fairey isn’t the first famous, money making artist to re-use the published photograph of another. Rauschenburg silk screened news paper photos, as did Warhol. Warhol’s Campbell’s soup can paintings that have become iconic.
      I don’t mean to defend the fact he was not just being up front about the whole thing. However, I really think there is a strong argument for allowing freedom for an artist to transcend the physical information and take it further, using a different medium, and adding some of his/her own understanding/vision/even soul (in the best work), to the original. This should be a cultural given in my book.

  15. Shame on him for lying, good for him for owning up. My feeling on the copyright matter in general, however, is that regardless of the legal issues, the man took an ordinary workaday photo and made a great work of art. He will not be remembered for the controversy but for the painting.

    I kind of feel bad that he’s been caught up in this. It would be nice if the AP would back down and simply enjoy the fact that they paid the guy who took a photo that helped inspire an iconic work of our time. But I’m not losing any sleep over it; by all accounts, he’s a bit of an ass, and whatever comes of this, his reputation as an artist will not suffer.

  16. It shouldn’t have gone to trial in the first place. Artists have enough to worry about when it comes to making a living, even when we live in times of fat… and here we are living in the lean.

    I’m sure the neo-cons are grunting and squealing with delight.

  17. This kind of story + this kind of response from Xeni is *precisely* why I read boingboing. Think about it–well reasoned, thoughtful content from real, honest, hard working lizard folk. If any of you are ever in Coburg OR I’ll happily buy you all a Zoltronian Stink Tonic.

  18. @thebelgianpanda, it’s a deal. Also, areiur tqpe adfkngad eiuty3in fkjgdk asga;ksjg (use your Lizard People decoder ring)

  19. I read this blog not just for all of the various nifty articles, but for the replies to those articles, which often have more to say than the article itself. Like user mofo_ohno posting the link to above.

    After reading that page, I am absolutely disgusted with Fairey as a person. I’m not going to call him an artist; the man is a thief. The fact that he’s recently learned a technique for creating KMFDM knock-off art from a photograph STILL doesn’t make him an artist.

    (I hereby apologize to KMFDM and especially the artist BRUTE for bringing up their artwork style in the above context.)

  20. Goddamn it, Ryan. haha

    mlle.mika, I don’t know how familiar you are with the process but a direct imitation is far different from photographic reference. In the world of fair use the level of similarity between the original and the reproduced is king. Also, no one cares if you post it in your Facebook because you’re not profiting from it. That’s a horse of a different color.

    Quothz, why should the AP back down and not Fairey? Yes it’s a massive conglomerate against one person but that doesn’t mean the conglomerate should lose by default. This wouldn’t have been an issue at all if he just obtained permission from the person who legally owned the image. The AP paid someone to take this image, they should be able to hold at least a little bit of rights to it – hell, they should at least get credited for it before it’s mass-produced.

    benher, Fairey certainly is having NO trouble making a living, not even close (unless of course he’s a victim of terrible accounting). At this point in his career he’s so well known and generally well-regarded that he could literally shit on some paper and net a few thousand selling it. (though surprisingly he wouldn’t be the first artist to do so)

    Now, I’m not here to attack everyone who likes the guy – I just feel like there needs to be some balance based on INFORMATION rather than person feelings towards an artist who made a poster you liked. Go ahead, like the guy – he makes some good looking stuff! I’d be first in line in the guy’s fan club if he just went about things in a more thoughtful way. It just bugs the hell out of me that he often doesn’t even TRY to credit much of his work until someone calls him out on it, it just appears to be so disingenuous to me – and as it persists over time it just appears to me that he’s doing it just to rake in all the free publicity based on the controversy.

    Xeni, I’m scouring the archives for proof just because I really want to see how a faxed cookie will end up. Unfortunately for my curiosity you seem to know what you’re talking about a vast majority of the time. Damn you.

    Once again, I may disagree on your opinions, but I absolutely applaud the way you handle things on boing boing. Actually, how about some impromptu applause for the boing boing staff all-around! a bunch of stand-up characters! their ability to restrain themselves from constantly eviscerating their commenters for questioning their validity is an admirable trait.

  21. Disclaimer: I am not a lawyer. I am not your lawyer. This is not legal advice. This is a work of fiction. Any similarities between it and any persons, living or dead, is entirely coincidental. I am not compensated by any of the parties in this case.

    There is a notion in the law that “equity serves those with clean hands”. as far as I can tell, Fairey’s hands were clean before the AP sued him for copyright infringement – but not now.

    This is going to get really messy and technical as to whether a judge ought to throw out Fairey’s claimed defense and any other possible defense. When your lawyers have to resign because you lied to them, finding other counsel will be difficult.

  22. I disagree that the image is a copy, if you look at it closely, there are many significant differences in Fairey’s interpretation of the original. Imo, a true derivative work would be a Photoshop treatment, which I think would yield as much real art as any of the howto Photoshop ‘Hope filters/tutes’ have since. I agree with the position that this was still Fair Use, despite the coverup.

    Also, for the record, Pablo Picasso was never called an asshole.

  23. I can see it now, Balloon Boy Fairey the Reality Show.

    I would hope that Fairy either out, take his money and finishes his life peacefully with his family. That or disappear for a while and come back with something that worth my time.

    Time will heal all wounds.

    Good post Xeni, can you tell Hillary Clinton I may go as her this Halloween.

  24. I’m all for this Fairey’s right to make derivative works, but Fairey himself seems like anything but a stand-up guy. Appropriating the work of others, not giving credit, then turning around and threatening people who do the same to him? And now lying to protect his own ass, on an issue that could jeopardize the rights of millions of other artists?

    This is not the kind of behavior I’d expect from someone described as “a stand-up guy”. This is exactly the kind of behavior I’d expect from someone described as “a narcissist”.

    Not that artists have to be paragons of human virtue, but words mean things. There’s no point in diluting them. If Fairey is now an example of a “stand-up guy”, we need a new term to describe someone who doesn’t “borrow” liberally from others, doesn’t sling threats, and doesn’t try to fabricate evidence in legal cases.

    1. Poor comparison.

      What Fairey did: take a pose from a photograph and alter it significantly.

      What Goldman did: take a cartoon image and alter it barely at ALL.

      Not comparable, unless you’re saying its an outrage that he dared replicate Obama’s likeness. Because, you know, Obama has to look completely different in EVERY PHOTO EVER, despite the fact that he’s only one person.

  25. Fairey learned what zillions of mild law-breakers have learned: the crime doesn’t get you, the cover-up does. It’s right up there with land wars in Russia.

    I think all bb readers join me in saying, “Awww….shit.” Fairey appeared to be a great representative of fair use we could ride all the way to the Supreme Court; now the whole narrative changes. Last truism: never trust your heroes.

  26. 2 things.
    1. It makes me angry that comments would make Xeni have to defend herself (meta-argument) but at least she does a DAMN good job of it.

    2. I really like Fairey’s art and the work/effort he puts forth in the political and social arenas. Bad judgement call and he made some before, but I don’t think that should ruin all. I hope that the legal team he ends up with has the mind to try to bifurcate the issues somehow. The judge is gonna be pissed at Fairey for breaking the law, but I hope it doesn’t color the true issue of whether the picture was fair-use. At a time when I think we could use a clear ruling in that area, I don’t know that we will now get one.

  27. I have to admit first to having creepy misgivings about the popularity of his “Hope” poster in the first place (I’m a libertarian, but I never thought of Obama as evil, mind you), but upon reading the backstory of Shepard Fairey, as an artist I find it difficult to defend him. The law as it applies to fair use can only bend to a certain extent (and I lean towards the remix culture, mind you), but given his history of just-nearly-outright-plagiarism, the weight of evidence in this case is pretty overwhelming in the context of a civil trial (preponderance of evidence). However, I feel for the guy because he did do the right thing admitting to lying. Good for him. Even though I think his art is not.

  28. I can imagine how he was being haunted by his lies and just fell futher and futher down the rabbit hole until he was so paranoid that it was the less painful option to face the music than keep up his story and hope it didnt come unravelled.

    I wonder if AP likes this little handywork

    Does it count as ‘fair use’ if you change the little “AP” bug in the corner into “crAP”? I certainly think so.

    Everyone should print out one of Fairey’s posters and put it up. Someone who is down with graf – please turn it into a stencil and spray all over the AP HQ…. If I lived in the land of the free(dom stealers) I would certainly do so myself.

    AP – please realise you are making your customers hate you. There are other media outlets. Dont pretend you are the only option – people will go elsewhere. People will continue to use your content, no matter how much noise you make about it. The more noise you make, the less people will care about infringing on your intellectual property (as you are giving us no reason to respect your company).

    I still support Fairey – as if AP doesnt do a million morally questionable things every day (Complicity in Bush’s BS to get us to believe in Iraq’s WMDs springs to mind). Who cares if Fairey lied? Doesnt change the fact that his work is a unique work (the photographer has even acknowleged this) – 1000 times better, and more memorable than the reference photo he used.

    AP – you are losing friends and money fast. Since introducing your stupid rule about paying to quote from your written vomit I have told hundreds and hundreds of people about your stupidity. I hope you are enjoying the bad publicity.

  29. teapot,

    I just disagree. I think the photograph is just as damn-near iconic as the derivative work. The problem is, when you rant against AP (I’m no fan), you discount the good works that this photographer did. His work was the basis for the artwork and he was compensated (prehaps even justly; doubtful) by his employer. But Shepard Fairey has a record of lying, which is different than any number of artists that have admitted to “remixing”, if you will, their source material. And Shepard Fairey gets to reap the benefits, not the original photographer or the AP. Shepard Fairey, in a truly just circumstance, would divide up all of his profits post-election with the photographer (and not the AP!), but that ain’t going to happen. So we have AP v. Fairey in court, and the Associated Press should prevail, no matter how much you or I dislike them.

  30. I don’t like Shepard Fairey because he is successful and I’m not, according to my own criteria. Also, because he seems to copy other people to an annoying degree, without attribution.

    Do you really think he just sort of lost track of which photo he used? That’s ridiculous! This guy is just sort of a slippery dude. Maybe a good artist but not a good person. Too bad.

    I agree that Boing Boing seems a bit slow on this. It’s a Fair Use issue, an IP issue, and a political issue, and y’all should be more on top than this. But you’re probably unnerved by the story, and that’s fair. I mean, it’s sort of close to home for you guys. No worries.

  31. theLadyfingers – how about justifying your point? Looks like we have Fox News’ next interviewee!

    Jubal Cain – I see your point, but considering that AP has no interests but its own in mind, I just dont care and nor should anyone else.

    You can hear an interview with Mannie Garcia (the photog) here:

    Whilst clearly annoyed that his image was used without permission, he also goes on to say some very interesting things. Namely:

    *Garcia had seen the poster many times without realising his image had been used to create it, and only found out when approached about it. [Also please explain your assertion that the image is “damn-near iconic as the derivative work” – if the original photog did not recognise his own shot then surely it couldnt have been that iconic.]

    *Garcia and AP are in disagreement over who is the legal owner [copyright holder] – AP say its theirs, Garcia says it’s his (if they cant decide, how is Fairey being sued?).

    *Garcia was there to shoot CLOONEY – not Obama (should fate get some of the royalties, because it was pure chance that Obama would be seated next to Clooney).

    *Garcia is due to make money from signed prints of his photo (via a group called The Danziger Project in New York) – money he wouldnt EVER have made from that photo if Fairey didnt immortalise it via his poster.

    I am not saying Fairey is a squeaky clean good guy, but it is clear that AP is the trouble maker in this case (considering that both Fairey and Garcia have qualms with them).

    Bad publicity for AP is the best we can hope for as this case is well and truly out of our hands.

  32. In reality a lot of the artists who have really moved us are not ‘stand up guys”.
    Picasso’s “Guernica” is a classic testament to the horrors of war waged on civilians. Never the less, P. was a total a-hole to his women and his friends. Not that I’m comparing Fairey to Picasso, but sometimes the work transcends the creator and should be judged separately from the personality.

  33. meanwhile somewhere in the world, refugees of war are dying, bombs are exploding in markets, bombs are being built, hatred spread around yadda yadda..
    farey tales are taking space… no one is talented enough for this much upheaval and no photo by the AP or CNN or WSj important enough, revealing enough to put all else on hold..
    we’ll never grow up… and I agree, stop quoting freaking picasso.. a mediocre artist himself.

  34. i think it’s ok to illustrate a photo. mostly.

    But he’s bumped off too many things in the past.

    nd jst by lkng t hm y cn tll h’s dchbg.

  35. If you take Fairey’s poster art, rotate it, resized it, and overlay it on the photo, it’s identical to the AP’s photo. I don’t see the creativity in importing a photograph into Adobe Illustrator, vectorizing the photo and then only changing a few color swatches to match the colors of the American flag. This process can be fully automated and doesn’t take any talent to do this. The real victim here is the photographer who took the photo of Pres. Obama. I doubt he’ll see anymore money from this greedy little squabble.

    1. I don’t know how to tell you this, but art isn’t defined by labour. Pulling the “I could Shop this in seconds” is the same thing people have been crying about art since the 1800s.

      See the famous case against Whistler:

      [Attorney] Holker: “Did it take you much time to paint the Nocturne in Black and Gold? How soon did you knock it off?”
      Whistler: “Oh, I ‘knock one off’ possibly in a couple of days – one day to do the work and another to finish it…” [the painting measures 24 3/4 x 18 3/8 inches]
      Holker: “The labour of two days is that for which you ask two hundred guineas?”
      Whistler: “No, I ask it for the knowledge I have gained in the work of a lifetime.”

    2. The issue here isn’t how much physical labour Fairey put into his Obama portrait, but how much mental labour. How much ingenuity really lies in his “remix”?

      1. The issue here isn’t how much physical labour Fairey put into his Obama portrait, but how much mental labour. How much ingenuity really lies in his “remix”?

        Obama has been photographed millions of times during his life. Exactly one of these photos was transformed into the famous icon that is this poster, and it wasn’t even an image that its photographer took on purpose (as mentioned earlier George Clooney was the main subject in the uncropped photo).

        So to answer your question, Fairey’s real ingenuity was to recognize the potential of this image when he saw it.

        (Of course none of this excuses Fairey lying to a Judge.)

    3. Classic case of “Modernity = I could’ve done that + but you didn’t”

      And didn’t the original photog already admit that he didn’t care about the use of that particular photo (albeit after the lawsuit began)?

  36. This case is another example of why you should never have dealings with US companies. Where I live, such a poster would be a political statement and therefore exempt from copyright laws. This only proves that there is no such thing as freedom of expression in the US.

    1. @Anonymous

      “This case is another example of why you should never have dealings with US companies. Where I live, such a poster would be a political statement and therefore exempt from copyright laws. This only proves that there is no such thing as freedom of expression in the US.”

      You will be apprehended and /fixed.

  37. Many of the reactions here seem to be delineate between “art” and photography. If you’re telling me Fairey’s copy/remix/whatever is art, then the photo itself is also a work of art. The difference being that the photo is “work for hire” which somehow lessens it’s artistic worth. In the past Fairey’s work would be discounted for being derivative, yet in today’s world of recycled culture it is characterized as brilliant. The Obama work is simply a rehash of the Obey poster. I find it neither interesting nor creative.

  38. Fairey filed the lawsuit against the AP first, so while the AP have certainly been assholes in the past, I don’t think it’s fair to portray them as the bullies in this case.

    I’d be the first to agree that the original photo is not particularity interesting, and that Fairey’s work has a greater ‘artistic height’ than the AP photo.

    That said, it’s pretty clearly a derivative work in the legal sense of the word. A professional artist like Fairey should’ve known better to use an image he didn’t have the rights to. The fact that it’s a fairly dime-a-dozen image of Obama isn’t an excuse. (You’d think that’d make it all the easier for him to find an image he had the rights to, a Free-as-in-speech one if necessary)

  39. I’m sorry but i cannot agree with the idea that its perfectly legal to take someone’s photo, change it (to the extent Fairey did) to fit your needs, further your career or advance your point of view.

    Fairey should understand as a talented graphic designer to respect the work of others. There was nothing to stop him from actually obtaining the rights of the photo legally or requesting permission.

    Bottom line is, it is never ok to steal someone’s work. No matter what the cause or what the end result is.

  40. Really? I’m pretty sure the issue here is that he fabricated evidence instead of standing by the principles he claims his work upholds.

    His actions against Orr are tangential, but they don’t speak kindly to his character either. Yes, Orr was selling his art for a profit, but that’s what Fairey does too Brainspore so you can’t paint Orr as being in the wrong here without putting Fairey in the same position.

  41. I really like the style of Shepard Fairey’s work, but it is not original. He has made a career of taking other people’s work and misrepresenting it as his own.
    THe links others have posted above do a great job of telling that side of the story.
    The fact that Fairey is willing to sue others who do the same as he does is hypocritical. His overall tactics have made me dislike him, and his art.

    After reading that “art for a change” link, I threw my Obey shirt in the garbage.

  42. So Fairey is arguably kitschy, arguably obvious and probably a perjurist.

    This is still fair use, plain and simple. A “substantial alteration” is not the basis of fair use. The reuse does not compete for market with the original, cannot be confused with the original and exists in a seperate artistic context from the original.

    This is in no way different from plenty of legitimate works by artists of various stripes from Warhol, Negativland, Hearst, DuChamp, Luther Blissett and all the way down the line.

    If, instead, Fairey had altered an AP image to the same degree for the purpose of satire, it would clearly be seen as commentary and thrown out of court. Instead, his image is seen as positive and hopeful, and lacks an obvious sarcasm that is a clear hallmark of fair use. But unless we want all transfigurative reuse and, frankly, all of post-modernism to lack any and all sense of the genuine and sincere, we’d best understand that reappropriation is reappropriation and that unless an artist is making a conscious attempt to deceive or horn in on an original’s use, it is commentary and protected speech.

  43. ahem.
    I beleive your improper use of the semicolon in ‘asga;ksjg’ alters the hyperspatial intersticial dynamic of your (rather poetic) use of iambic googolameter, inflexing your comment from 4th person sub-didactic to a rather verbose pre-colloidal nth-lizard post-personal. I mean; sheesh! You might as well have just asked for the guy to do a backflip.

  44. “…only changing a few color swatches to match the colors of the American flag.”

    Don’t you mean a Soviet aesthetic.

    Not American but Communist.

    I found it funny that the USA has become the USSR and that people are mad about such a petty issue. Go GULAGS go off shore prisons. Go political crimes, go IP.

  45. @theawesomerobot: Should? I didn’t say they should; I said it’d be nice. Why? Because it would be a nice thing to do. In any realistic sense, his painting doesn’t hurt them as an organization. Fairey didn’t make a profit off the painting, he just gained reputation, and it’s not as though the AP took the photo in expectation of making a bundle from licensing derivative works from it.

    So they’re within their rights to take the dispute to court, but there’s something to be said for being magnanimous sometimes.

  46. I know people through mutual friends who seemed like stand-up guys and turned out to be a-holes.

    It’s always best to call an a-hole an a-hole at every opportunity whether he or she’s open source mash-up cool or not.

    I think AP’s legal actions amount to little more than calling Mr. Fairey an a-hole in public.

    That’s about the best the will come of all this.

  47. Honest to a fault. He just could not live with what he knew in his heart was not the truth. It is my guess that his fabriactions were and overeaction in a moment of fear, in an attempt to defend himslef. It is difficult to be this type of a person in our society. I respect his integrity. His karma is clear.

    1. Fairey sued the Associated Press, not the other way around. Lying in a defensive panic is understandble, though not excuseable. Bringing a lawsuit on fabricated evidence is unacceptable. Anyways, if the AP is right, this looks more like a deliberately executed and carefully planned scheme than some panicked lapse in judgment. And his “confession” could have been motivated by the desire to clear his conscience. An alterative explanation could be that he wants to avoid prosecution. This is not good for Shepard, and I hope he finds good legal help.

  48. Can we now coin the term “Fairey Use”?

    I’m impressed BB that when the chickens came home to roost you didn’t shoot them. :)

  49. Shepard should still have a case because of the changes he made. Our world runs on money though and the AP has a lot more than Mr. Fairey does.

    Re: Shepard not being original. In the 70s the block screen print was used widely. It wasn’t anyone’s. I’m not the only one who took the block screen print style forced by the peculiarities of the process and made paintings that mimicked the effect.

    It was a good stylized thing to do and belonged to nobody. We all sold stuff on the street using it.

    Much of the other stuff Shepard was supposed to have ‘stolen’ according to one writer’s assessment at the Boston Globe was also free range at various times.

    One looks for differences within styles in art, unless, of course, one has a personal vendetta against a particular artist. This apparently is something that has developed against Mr. Fairey as it does so often against anyone who helps Democrats or liberals.

    I wrote on Shepard Fairey and those allegations at

  50. That poster is not art, it is an aesthetically pleasing rendering from a traced photo. Thousands of kids make “art” from traced photos that is easily on par with, or better than this hope poster, they just don’t have the PR network to get their work noticed. I really don’t get the hype. There are countless graf writers that would blow away this poser with crazy original skills as well as talented bedroom illustrators that don’t have to trace in order to draw. Where is the support for these true artists? Why all the blind support for a half rate that relies on hype when all around us are kids who can’t pay rent because they can’t get noticed?
    And honestly,those who compare someone as unoriginal as SF to Picasso should question their assumptions about art.

  51. @Quothz

    Yes, he did. He profited an absolute fuck ton from this poster! That’s absolutely indisputable – just because he donated most of that to the Obama campaign doesn’t mean anything. The money was his to donate at that point, he was able to funnel income to the political position of his choosing.

  52. @Quiet noise – it doesn’t matter what the photographer’s opinion is on the matter whatsoever. The photographer took that photo under the employ of the AP, they own it completely – as stated in the contract the the photographer signed to get the work.

  53. it is still recontextualizing the original so why does it matter? why didn’t this just promote the original and inspire more people to do similiar works? as well and this is the main point isn’t it? shephard fairey should have established an initial percentage to be sent to the owner of the photo based on any revenue generated from it. this is the real reason why copyright is an issue, what should happen is, artists should be able to use anything as long as 50 percent (because half the art is inspiration, in this case TAKEN from an existing material source)of whatever revenue is generated is redirected to those sources that enabled the creation and access to the component being recontextualized.

    as usual,

    your welcome,

    Richard Altman

    1. This is a very good point. There are two sides to this copyright battle. On the one hand, there are big corporations attempting to hold a monopoly over art, which is despicable. On the other hand, every artist, whether a big corporation or not, is should receive credit (and royalties) where they are due.

      Any entity should have the right to royalties from profits in two conditions:
      1) the resulting work is a substitute in any form for the original
      2) if it would be impossible to create a near perfect substitute of the resulting work without the original.

      The above conditions also hold against the public proliferation of the resultant work if and only if the original product is not available in the public domain for free.

      There are probably a few cases I missed…

  54. The fact is if you want to use an image that is not yours, then you should have the courtesy to ask permission to use it first.
    He’s been around the block long enough to know how these things work – and when in doubt just ask rather than run the risk of being sued.It’s common sense.

  55. As an artist, I will say that this is totally retarded. Using photos as a reference should not be punishable because honestly, how many other artists do the same thing and get away with it? Look at f^ckin’ Warhol, for chrissakes. If someone made a derivative work from my photography, I really wouldn’t give a crap because hey, free advertising.

  56. Whatever. Stupid AP should have said, “Hey, thanks for using one of our photographs and making it such an iconic image.” and let it go.
    The ARE bullies.
    Yeah, Shep. Bad move, but hey: live and learn.
    Your art still rocks.
    Go and make more!
    AP, go and do whatever it is you to to do……do, you corporate a$$holes.

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