Feb. 12th, 2009

emandink: (copyright)
I'm sure it will come as no surprise to some of you that I am facinated by the developing Shepard Fairey copyright case.  Part of what makes it so facinating is that, unlike a lot of copyright cases where a close look at existing law and precident makes it pretty clear who is likely to win, this one is a crap shoot to my mind.  Cases like this one, and the recent Harry Potter Copyright Trial of Doom, illustrate a trend in the U.S. federal courts to apply nuanced reasoning about what fair use really means and what it truly means to "transform" a work into something new that does not depend on the original.  I don't think that Fairey will win on his declaratory judgement action.  There are too many questions of law and fact at stake and I suspect that it will require a full trial (provided that it doesn't settle first).  At full trial, though, I think he has a decent chance.  Then again, so - potentially - does AP.  I suspect, though, that it would tip in his favor, since while his image is clearly derivative, it does not represent a market that AP was likely to exploit, nor does it supercede the value of the original image.  OTOH, he copied it.  AP has made it's basic case.  Whether Fairey's Stanford legal team can esablish the fair use defense will be the real issue.  It's a decent case, but not a slam dunk.

In the meantime, how about that Shepard Fairey.  The more I learn about him as an artist, the more I sort of dislike him.  From a legal perspective, my feelings are mixed - on the one hand, probably 30-40% of the art referenced in that first link (thanks to [livejournal.com profile] hooper_x and [livejournal.com profile] likeawoman for the tip, btw) is in the public domain.  OTOH, a lot of it isn't.  And forget the comparisons to Warhol and Lichtenstein - they copied iconic images, for sure - iconic images that were easily recognizable from their source.  And they transformed them into something else.  Warhol turned household goods into art objects (and did settle a lawsuit with Campbells for his trouble).  Lichtenstein took comic images from the 2x2 inch paper booklet and put them on walls.  Obama poster aside (which is somewhat like Warhol's famous figure works), Fairey takes other people's propaganda and turns it into...propaganda.  And, as pointed out by [livejournal.com profile] likeawoman here, he borrows heavily from works made by people of color to publicize and fight their oppression and commodifies them into somehting easily consumable by an audience comprised primarily of white hipsters, while simultaneously marketing some of the actual emblems of their oppression right along side. 

Shepard Fairey makes a good poster boy for the anti-copyright movement right now.  But I'm not entirely sure why they would want him.



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