Statement by Shepard Fairey

In a follow up statement by Shepard Fairey, he expresses regret and intention to continue his case by amending his law suit.

Source: TechCrunch.com

"STATEMENT BY SHEPARD FAIREY ON ASSOCIATED PRESS FAIR USE CASE
OCTOBER 16, 2009
In an effort to keep everyone up to date on my legal battle to uphold the principle of fair use in copyright laws, I wanted to notify you of a recent development in my case against The Associated Press (AP). On October 9, 2009, my lawyers sent a letter to the AP and to the photographer Mannie Garcia, through their lawyers, notifying them that I intend to amend my court pleadings. Throughout the case, there has been a question as to which Mannie Garcia photo I used as a reference to design the HOPE image. The AP claimed it was one photo, and I claimed it was another. 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.

I am very sorry to have hurt and disappointed colleagues, friends, and family who have supported me in this difficult case and trying time in my life. I am also sorry because my actions may distract from what should be the real focus of my case ? the right to fair use so that all artists can create freely. Regardless of which of the two images was used, the fair use issue should be the same."

Liar, Liar, Fairey's on Fire

Copyright 2009 Tonya M. Evans info@legalwritepublications.com. Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, and includes the author's copyright and contact information. All other rights reserved.

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Alright, I am a little peeved today.

I was enjoying an uneventful, restful and all around pleasant morning easing into the day as I listened to gentle rains tap against my window. I had prepared a light breakfast of Chai tea, fruit, yogurt and granola and looked forward to turning on my laptop and tackling a substantial but "doable" to-do list that included some of my favorite things -- reading, researching, writing and blogging.

At the top of the list was to make some progress on my law review article From Folsom to Fairey: How Obama’s “Hope” Might Transform Fair Use. In the article, I use the pending lawsuit between graphic artist and creator of the Obama “Hope” poster, Shepard Fairey, and the Associated Press (AP). The AP argued Fairey infringed on an AP-owned photograph to create the poster (click here to see a previous post for additional details about the case). Fairey denied using the photo that AP alleged, arguing instead he used another picture that also included actor George Clooney at a press club event. If the latter had been true, he had a strong case for fair use. If the former, the poster probably bears too close a resemblance to the original to be sufficiently transformative and would therefore be an infringing use.

Upon opening my g-mail, I was bombarded with updates from my research assistant and Google alerts about the latest in the Shepard Fairey vs. AP brouhaha. I was not pleased with what I learned.

It seems that Fairey took his creativity to a new (and likely unlawful) low. Ironically, the Associated Press reported that Fairey now admits to fabricating his assertions in official court documents about which photograph he actually used as a "reference" for his poster. Basically this destroys his fair use argument. And, to make matters worse, he admits to destroying valuable evidence in his case against AP to hide his "error." His attorneys, lead by Anthony Falzone of Stanford’s Fair Use Project, have withdrawn from the case. The often controversial graphic artist is left alone to defend the seemingly indefensible.

In the grand tradition of what I refer to as the ‘fallen famous,’ Fairey issued an apology:

“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.”

Ho hum. Well. There it is.

So why am I peeved? Because of that article I mentioned above. The one I am writing that, in part, is based on Fairey’s case (despite the warnings of colleagues who cautioned against putting all of my scholarly eggs in the basket of a pending case). Luckily, I am only about 6 pages in with a healthy percentage of my research and writing still ahead of me. But the tone of my article will take a decidedly different turn, I suppose. No longer will I be able to cast Fairey’s claims -- now proven deceptive -- into a positive light and the poster child – pun intended – to make the case for “transformative use.”

Stay tuned for Part II. Right now, I need more tea!

Update on Shepard Fairey Debate: Prominent Former NY Time Art Director Declares “Fairey is not a crook.”

Simul-post @ HipHopLaw.com

Author and blogger Steven Heller, a former art director at The New York Times and co-chair of the MFA Design Department at the School of Visual Arts, wrote a thoughtful critique of the criticism of Shepard Fairey’s use of artistic works in his artistic activism. Food for thought as the debate wages on.

Also check out the scathing 2007 essay by Mark Vallen, entitled “Obey Plagiarist Fairey,” which accuses Fairey of nothing more than a plagiarist and asserts “Fairey simply filches artworks and hopes that no one notices.”

I am following this Shepard brouhaha with great interest because we can (hopefully) gather great insight into how courts may approach and (perhaps?) alter existing copyright law as it relates to fair use. So stay tuned!

Was Street Artist’s Use of AP Photo to Create Obama Hope Poster “Fair”? A look at Where Infringement Ends and Transformation Begins

Lines have been drawn in the sand and the fight has commenced. A classic David and Goliath battle is set to take place in the U.S. District Court of the Southern District of New York between graphic artist Shepard Fairey and the Associated Press (AP). The spoils of this war? A definitive answer about what constitutes the proper interpretation of the law governing fair use of copyrighted works.

(Photo by the Associated Press)

The Law

Copyright owners control the exclusive right to, among other things, prepare derivative works. For example, a screenplay based on a novel is a derivative work. But use of a copyrighted work for purposes like criticism and comment is not an infringement but rather a fair use that does not require the permission of the owner. A court considers four factors to determine whether a use is fair; namely the purpose for the use, the nature of the copyrighted work, the amount used, and whether the use negatively impacts the potential market for the copyrighted work.

The Beef

It seems Fairey referenced to a photo owned by AP of then-presidential candidate Barack Obama to serve as inspiration for his artistic rendition of the candidate. That rendition became an iconic portrait of Obama and an unofficial but integral part of Obama’s grassroots message of hope and progress.

The problem is the photo on which the poster was based was taken by Mannie Garcia in 2006 on assignment for the AP at the National Press Club in Washington. Now a firestorm of controversy surrounds Fairey’s use. Was it fair or violative of AP’s copyright? The answer lies in whether Fairey’s portrait is sufficiently transformative to constitute a new work or whether it is merely a derivative of the photograph. The issue is whether Fairey has advanced the constitutional directive to “promote the useful arts” by adding something new or has merely leeched off another’s creativity.

Fairey, a Los Angeles-based “street” artist, is the modern day David in this story. And he drew first blood when he aimed his proverbial sling shot directly between the eyes of the AP and fired. Or, rather, filed. A law suit that is.

The term “street artist” is a bit misleading. Fairey did develop his craft and street cred at the underground level. But now he is graphic artist royalty, producing cover art for projects ranging from the Black Eyed Peas's album Monkey Business to The Smashing Pumpkins' album Zeitgeist and Anthrax's The Greater Of Two Evils. But Fairey’s artistry is more than creative. At its core, it’s political. His “Obey” campaign urges the observer to question obedience to social commands and the political status quo.

Fairey, well versed in the language of civil disobedience, is represented by Anthony Falzone of Stanford University’s Fair Use Project. His Complaint seeks a judgment declaring legal his use of the AP photo and an injunction against AP. Recently, AP counter-claimed asserting its infringement claim.

This is obviously shaping up to be one helluva battle! Stay tuned for updates. I will definitely be tracking this case.