While Fairey's talk and perspective is interesting and worth a watch, specific to photography, rights, and business, at about 7:05, Fairey recites a conversation he had with the Obama campaign, regarding how much the image Fairey created is resonating with the campaign staff. Fairey cites the unnamed campaign staffer calling him "would you be willing to do a portrait from a photo that we have the rights to for a poster that we can use both to raise money and to use as a promotional tool. And so I donated an illustration to them. And they, they quickly caught on to the idea of this this look being a very useful look for their brand, augmenting what they already established."
This is reasonable, then, to suggest that Fairey might have been aware that he needed to have rights for a photo that is the basis for his artwork, and that a "fair use" argument might not be as strong as they were initially arguing.
Surprisingly, while Fairey's gallery called the source of the image, Mannie Garcia, as we reported on yesterday - 10 Questions for Mannie Garcia - on January 21st, 12 days prior, Fairey does not acknowledge Garcia's AP image as the basis for his HOPE image. It comes across as if Garcia's image never existed.
In a letter to Fairey (Wiki:Shepard Fairey), a citation from Obama's letter reads:
I would like to thank you for using your talent in support of my campaign. The political messages involved in your work have encouraged Americans to believe they can change the status-quo.Where is Garcia's letter?
Your images have a profound effect on people, whether seen in a gallery or on a stop sign. I am privileged to be a part of your artwork and proud to have your support. - Barack Obama, February 22, 2008
Fairey certainly made money off the image, despite suggestions to the contrary. An interview cited on Wikipedia, reveals:
Fairey distributed a staggering 300,000 stickers and 500,000 posters during the election campaign, funding his grassroots electioneering through poster and fine art sales."I just put all that money back into making more stuff, so I didn't keep any of the Obama money," said Fairey in a December 2008 interview.So, how much does it cost to produce that many stickers and posters? Copyright judgments are often based upon the transfer of gross profits that the infringer made to the copyright holder. It does not matter that the infringer spent all those profits, or that they "put all the money back into making more stuff...", since that is a decision they made, it does not dismiss the notion that those profits are due the copyright holder. That's like not making a bank robber pay back the spoils of a heist because he spent it all. It does not matter that he spent it on an orphanage's roof (a la Robin Hood), it still must be repaid.
Fairey, in another interview on the subject of images, is reported to have said:
...the image that I continued to put out there myself, they [the Obama campaign] couldn't have any affiliation with it because it was being perpetuated illegally in a lot of ways, and so I just continued to do that on my own without any coordination with them, and that was the "Hope" image.What is meant by that? Perpetuated illegally, as in, posted on places with "Post No Bills" notices? Plastered on bus shelters without permission? Or, was he speaking of the source of the image as being obtained without a license?
I think that one reasonable solution, moving forward, would be that in the same breath that Fairey speaks of the art, when he says "the HOPE image I created", he should instead be saying "The HOPE image I created, based upon a Mannie Garcia photograph...". Most people know that Alberto Korda was the photographer who made the iconic image of Che Guevara, even as that image was turned into artwork by artist Jim Fitzpatrick. So too, should people be aware of Garcia's contribution to Fairey's artwork. It's only fair.
- Photo Business News - Shepard Fairey's Talk on the Obama Image
- Photo Business News - The Associated Press v. Shepard Fairey
- Photo Business News - Derivative-Work Liability - Copyright Infringement?
- PDN Online - AP Claims Shepard Fairey's Obama Poster Infringes on Copyright
- LA Times blog - AP now Hopes for $/credit for Fairey's iconic Obama poster
- Huffington Post - AP Accuses Obama Artist Shepard Fairey Of Copyright Infringement
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