emandink: (copyright)
[personal profile] emandink
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.

Date: 2009-02-12 03:10 pm (UTC)
From: [identity profile] liminalia.livejournal.com
It has been my understanding that an artist may use a copyrighted image if he/she transforms it by 30% or more. I'm not sure how they determine percentages exactly, but it seems to me that his Obama image is fairly different from the photo in terms of coloration, the addition of background motifs and so on.

An opposing response to Vallen's article on Fairey, in case you haven't seen it yet:


I'm not heavily invested in this issue, but my sympathies tilt toward more freedom for artists to transform copyrighted images, because I've done so myself in icons and pieces I've made for myself and friends.

Date: 2009-02-12 03:19 pm (UTC)
From: [identity profile] emzebel.livejournal.com
The 30% rule is a fallacy- the idea that there is a certain amount that can be changed to adequately transform a work is nice, but it ignores the neuances of what is really involved in a fair use analysis. Use of 100% of something may still be fair use. Use of 1% of something may not. It depends on the nature of the work, the actual portion utilized, the ability of the original copyright owner to exploit the work and create their own derivatives...it is unfortunately not a terribly usable standard for artists who want to make derivatives, since there is no truly objective standard.

Thanks for the link to the alternative view - I'm very much on the fence about appropriated art and my 10 years as an intellectual property lawyer don't help in that regard!

Date: 2009-02-12 06:21 pm (UTC)
From: [identity profile] likeawoman.livejournal.com
personally, for me, it's less about copyright and more about respecting the intent, context, meaning, and place of the work from which you're copying. I don't believe for a second that Fairey is anything more than your run of the mill consumer activist, capitalist, fauxgressive, and I feel like the linked article, while making good points about whether or not it's classic plagarism, kind of goes out of its way to avoid the teeth of the matter of misappropriation BY people of extreme privilege (which is what Fairey truly is and what he was before he was famous) FROM marginalized people whose work was meant to convey a message and promote social justice, not to garner profit. Fairey is ostensibly supportive of the people he borrow/steals/appropriates from and/or pays tribute to, but the behavior doesn't mirror the message.

but I don't really care about the Obama poster at all, just his larger career.

Date: 2009-02-12 06:39 pm (UTC)
From: [identity profile] emzebel.livejournal.com
Your comment on Hoop's journal was key for me in putting this in perspective. There are really three analytic aspects to Fairey's art, which does make it really interesting to talk about. There's the art-crit angle, the legal angle and the social justice angle - which to some degree dovetail in my mind but can also be highly divergent. Which is part of the reason I'm loving this discussion, because there are so many different ways to explore it.

Date: 2009-02-12 06:27 pm (UTC)
From: [identity profile] judith-s.livejournal.com
I'm curious where you heard that 30% figure.

It's interesting. The full-size poster image in your linked article does appear a lot more different from the photo in terms of textures and for example the newspaper print appearance in the collars. But the poster that I've seen everywhere doesn't include those features at all. Even the colors are there in the flag behind Obama. http://www.supertouchart.com/wp-content/uploads/2009/02/manniegarciaob.jpg

I'm not that surprised, but it appears that most people writing about this don't understand that "fair use" is a defense. It starts with saying that it is copyright infringement, and then says "but, even though we copied, it's fair use."

Date: 2009-02-12 06:36 pm (UTC)
From: [identity profile] emzebel.livejournal.com
I'm not that surprised, but it appears that most people writing about this don't understand that "fair use" is a defense. It starts with saying that it is copyright infringement, and then says "but, even though we copied, it's fair use."

And how.

Date: 2009-02-12 03:16 pm (UTC)
From: [identity profile] hellsop.livejournal.com
I heard a bit on NPR about the case yesterday. I like the idea mentioned in passing in there as a settlement option of shared accredation in lieu of monetary compensation, crediting everywhere as "Shepard Fairey from A.P. photograph by {photographer}" It seems, at this point, that a firm decision one way or the other on the case doesn't really serve the public really well. A high-profile settlement for no monetary compensation gives a nice line that says "There is no gravy train on this side."

Date: 2009-02-12 03:47 pm (UTC)
From: [identity profile] emzebel.livejournal.com
I definitely like that settlement idea - and really that gets to the root of my issue with appropriation of other images - crediting, both the original artist and the source/context, is important to me. Clearly, I am not completely against any and all appropriation - all you have to do is look at my user icons to see that.

Date: 2009-02-12 04:13 pm (UTC)
From: [identity profile] ayun.livejournal.com
I'd be very satisfied with that outcome - I think a lot of the people who are uncomfortable with Fairey's appropriations aren't opposed to them, just that they aren't acknowledged as such by the artist.

Date: 2009-02-12 06:15 pm (UTC)
From: [identity profile] likeawoman.livejournal.com
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.

well put!

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