Never Mind the Bollocks: Shepard Fairey's Fight for Appropriation, Fair Use, and Free Cultre (Part Two)

This is the second part of an essay written by cultural report and USC Annenberg student Evelyn McDonnell, being reprinted here with the author's permission.

Image via Wikipedia

"Hope"

It was into this battleground that Fairey wandered with seemingly noble intentions. Since the mysterious and ambiguous days of the Andre stickers, Faireyʼs work had become increasingly political. Influenced by punk and Constructivism, he unabashedly referred to his work as propaganda. He made a series of posters attacking George W. Bush and the war on Iraq during the 2004 election. He also created posters for the campaign of Ralph Nader.

For the 2008 election, he decided to take a different tack.

"Iʼd spent a lot of time criticizing the Bush administration, the war in Iraq -- things unfortunately didnʼt have enough power to prevent but I could at least try to dissuade people from mistaking the same mistakes again," he says. "A lot of people really respond to negative images because venting is cathartic. I had started to think about why my anti-Bush images and other peopleʼs anti-Bush images had not kept Bush from being reelected in 2004. Maybe it makes more sense to support rather than oppose. And I looked at Obama as the unique opportunity to endorse a mainstream candidate... The ceiling to a lot of the rebel culture and the real activism and quasi-activism was these people are glad to talk but donʼt do anything to engage in this process enough to make an actual difference. I said Iʼm going to engage in this process. One of the most compelling things was having a two and a half year old and being about to have another baby. And thinking itʼs far more important to have them not growing up under McCain as for me to maintain my brand as anti mainstream."

So in January 2008, as Obama was emerging as a front runner in the Democratic race but before the Super Tuesday primaries, Fairey made the Progress poster. "I made the Obama poster just like I made any other poster. The week before it was a ballot box with a speaker on the front saying ʻEngage in democracy, vote.ʼ To me it was just another political image ... I had no idea it was going to be such a hit." Fairey purposefully created a piece that showed him reaching beyond the grassroots cultures that had been his comfortable home.

"I did purposefully try to make it something that I thought could cross over that would have enough appeal to my fan base to stylistically work for them and also not be quite as edgy or threatening. And not in any way to be ironic, to be sincere. And patriotic. My feeling was that all my friends are already going to vote for Obama. The people that hopefully this image will appeal to is the person whoʼs on the fence. It needs to be something thatʼs nonthreatening. Something -- this sounds really corny -- but something that would maybe be hopeful and inspirational."

Fairey originally did with the "Progress" poster what he had done with its predecessors: Made a limited print run of 3-400 that he sold, then used the money to make more posters to distribute for free. Oprah Winfrey and Michelle Obama held a rally at the University of California, Los Angeles, at which he gave away 10,000 copies. In the meantime, Fairey had been in contact with people inside the Obama campaign, who liked the artwork but preferred it carry a different textual message. "Hope" and "Change" were the keywords they were trying to promote, Fairey says. So he made a new version for the campaign. "I chose ʻhopeʼ because I think a lot of people are complacent and apathetic because they feel powerless," he says. "The first thing to motivate people to action is a level of optimism that their actions will make a difference. Hope is important because so many people feel hopeless."

The rest, as the saying goes, is history. Faireyʼs artful yet simple, dramatically chromatic message struck a chord. He made the poster available as a free download on his website, with the condition that any proceeds from sales go to the Obama campaign. Soon, "Hope" was everywhere, a powerful illustration of the way in which the Internet enables fast and direct communication. Fairey received a letter of thanks from the presidential candidate on February 22, 2008, that said in part: "The political messages involved in your work have encouraged Americans to believe they can help change the status-quo."25

On January 17, 2009, the Smithsonian unveiled a mural based on "Hope."For the artʼs maker, the experience, at that point, was a positive lesson in civic engagement.

"Iʼm proud of the image. I put all the money from it back into making more posters, giving money to the campaign, organizing the Manifest Hope art shows. It was all related to supporting Obama. There was no goal for personal gain. Of course publicity wise, it was great for me. Iʼm very fortunate that Iʼm doing that well in my career that I can dedicate that much time to supporting a candidate and not have to have an ulterior motive, like the ambassadorship to Puerto Rico. It was something that was really heartfelt and Iʼm really glad Obamaʼs President."

Backlash

No good deed goes unpunished. "Hope" catapulted the already successful Fairey to a level of notoriety enjoyed by few contemporary artists. He was the subject of numerous articles and was commissioned by Leviʼs to design a line of jeans. He was hired to draw covers of Time and Rolling Stone. The style of the "Hope" poster was itself widely appropriated and parodied (more on that later). But with fame comes friction.

In February 2009, the prestigious Institute of Contemporary Art in Boston debuted an exhibition of Faireyʼs work. The show had been planned before "Hope," the artist says. But of course, the opening got a lot more attention as a result of Faireyʼs heightened profile. Not all of this attention was positive. The night of the opening, Fairey was arrested by Boston police for acts of vandalism related to Faireyʼs public admission that he had performed numerous acts of street art during his lifetime, including when he lived in nearby Providence.

"The Boston arrest was a lot of different things converging," he says. "I made the

mistake of being very candid about my practice as a street artist. The Boston police said

thatʼs an affront to the Commonwealth."

Fairey had been arrested for vandalism before. But he had never been sued by a large corporation for copyright infringement. Actually, it was the artist who, in response to letters and phone calls from AP lawyers, threw down the formal legal gauntlet; on Feb. 9, 2009, with the Stanford University Fair Use Project as his legal team, he filed suit in US District Court in New York to vindicate his rights to the image. AP, saying in a statement that they were disappointed that Fairey had broken off negotiations over the Garcia image, filed a countersuit.

Faireyʼs case centers on fair use. The suit argues that Fairey "altered the original with new meaning, new expression, and new messages," and did not create the art for commercial gain; that he "used only a portion of the Garcia Photograph, and the portion he used was reasonable in light of Faireyʼs expressive purpose"; and that his use "imposed no significant or cognizable harm to the value of the Garcia Photograph or any market for it or any derivatives; on the contrary, Fairey has enhanced the value of the Garcia photograph beyond measure."26

The AP argues that Faireyʼs use of the photograph was substantial and not transformative: "The Infringing Works copy all the distinctive and unequivocally recognizable elements of the Obama Photo in their entire detail, retaining the heart and essence of The APʼs photo, including but not limited to its patriotic theme."27 It also charges that as of September 2008, Fairey had made $400,000 off the image. In a statement available on the website, AP spokesman Paul Colford said the organization was itself acting in defense of creators: "AP believes it is crucial to protect

photographers, who are creators and artists. Their work should not be misappropriated by others."28!

In October 2009, there was a significant, but troubling, development in the case. Fairey admitted that he had misstated which Garcia photo he had originally used for the poster. Instead of a photo in which Obama was shown next to actor George Clooney, he used a photo of Garciaʼs face alone. He also admitted that he had altered evidence to cover up his misstatement.Faireyʼs lawyers have resigned from the case; he has replaced them with new counsel. He also faces possible legal censure.

Fairey says he was initially mistaken about the source and then, embarrassed, tried to hide his mistake.29 The change in source affects one tenet of his fair use argument: that he "used only a portion of the Garcia Photograph, and the portion he used was reasonable in light of Faireyʼs expressive purpose."

"I made some poor decisions that I can only blame myself for," Fairey says.

Does Shepard Have a Posse?

Even before Faireyʼs admitted lie, he had a credibility issue. The Internet is full of Shepard-haters. Diehard punks and radical left-wingers accuse Fairey of selling out not just because of his Leviʼs and Sakʼs Fifth Avenue campaigns, but because of the Obama posters. Thereʼs a whole website devoted to listing the artists and works Fairey has copied. Undoubtedly some attacks are from artists who are jealous of his success. Others have fairly well-thought-out critiques. When I wrote an article on Fairey for The Miami Herald in November 2009, it quickly accrued comments both from kneejerk radicals and reasoned liberals troubled by Faireyʼs questionable integrity (a fan posted first). Sometimes, it seems as if Fairey has a posse -- one thatʼs out to hang him.

Most disturbing are allegations that while Fairey unapologetically appropriates, he has been litigious toward people who have in turn appropriated his work. In 2008 he sent a cease and desist letter to Baxter Orr, an Austin artist and art dealer who had made a version of Faireyʼs Andre image with a surgical mask on it (this was during the SARS crisis). Orr told The Austin Chronicle, "It's ridiculous for someone who built their empire on appropriating other people's images. Obey Giant has become like Tide and Coca-Cola."30

Fairey says he was upset because Orr had been profiting off the artistʼs work by buying posters cheaply from Faireyʼs website -- in true punk rock fashion, Fairey keeps prices for his work low -- then flipping them for a substantial profit. Since this practice is only unethical, not illegal, Fairey went after the "parasite" over IP infringement instead. Orr, who later made the disturbing "Dope" poster parodies of Obama as a cokehead, had publicly bragged about his actions and needled Fairey. Fairey now says the letter was a mistake. "I didnʼt think about how it looked hypocritical. I was operating out of anger and frustration."

One could argue that Faireyʼs admitted "mistakes" make him human. Or the artist could just be caught up in the tangle of sometimes competing, sometimes converging editorial and market logics that drive contemporary media work, as defined by scholar Mark Deuze.31 My personal assessment is that as a white kid from South Carolina, Fairey will always be an outsider in the outsider worlds of punk and hip-hop. This makes him both vulnerable to attacks from those who consider themselves insider purists (like Orr) and insecure. I think Fairey considers the current, constrictive rules of copyright law a burdensome and unreasonable hindrance to the cultural practices to which he, and increasingly many new media workers, are accustomed, and that he felt therefore above the law when it came to admitting the source of the Obama image. His

hypocritical defense of his own IP against an intruder both reveals his ego and shows just how complicated copyright can be. Even those who see it as being intrusive may see it as also necessary, especially when it comes to their own works.

Fairey is not against IP. DJ Diabeticʼs views of copyright are influenced by his love of hip-hop.

"I completely believe in the concept of intellectual property. I just think itʼs got such broad latitude for interpretation that when someone wants to make someoneʼs life hell over some sort of creative transformation of something, itʼs far too easy. What I think IP is about is when someone makes something that directly impairs the market of the creator, thatʼs a problem. When something builds its own new market and may enhance the creatorʼs market, thatʼs a good thing. I think most hip-hop that uses samples should be fair use. I think itʼs completely unfortunate for that art form that the laws have gone the way they have, and thatʼs due to lawyers."

Fairey is much more careful about attribution and appropriation these days. He has begun a project on American pioneers in art, music, and culture, starting with Rauschenberg associate Jasper Johns -- thus saluting some of the figures others have accused him of stealing from. On his website, he carefully notes the Johns image is by photographer Michael Tighe.32

"Iʼm not trying to steal peopleʼs images and exploit them," Fairey says. "I feel like anything I make, Iʼm adding new value that doesnʼt usurp the value of the original. At the same time I donʼt want people to feel taken advantage of, so if I can make it be mutually beneficial, I will. This has never been about me trying to be selfish or greedy about the art I make. I try to use my art for good causes. Almost every print I do has some philanthropic element."

Free Speech + Free Culture = Democracy

Lessig and Litman have both described at length how the companies who are able to buy the most lawyers and legislators are currently winning the copyright wars. AP says it is out to defend the rights of creators, but the creator of the Obama photo has both contested the organizationʼs ownership of the image and said he thought Faireyʼs use of it had been a mostly positive experience:

"I donʼt condone people taking things, just because they can, off the Internet. But in this case I think itʼs a very unique situation ... If you put all the legal stuff away, Iʼm so proud of the photograph and that Fairey did what he did artistically with it, and the effect itʼs had."33

The Recording Industry Association of Americaʼs cynical deployment of the band Metallica aside, copyright wars are not being waged by creators against users: They are being waged by the companies who have purchased the rights from the creators and are now cynically fighting to control creativity. Copyright law was invented precisely to counter such monopolization, when England passed the Statute of Anne to break the stranglehold booksellers had on literature. Todayʼs mediacracy is every bit as powerful as those 18th century word lords.

In terms of legal precedent, Fairey may have a tough battle. You can read lawyersʼ own mixed takes on the case, if you want a bit of a head spin. But many scholars who are closely studying the way new media is redefining cultural practices see the case as an important landmark. Jenkins argues that images of public figures should be particularly seen as fair game, as the art practices of Reid and Prince have already put into practice.

"Artists -- whether professional or amateur -- need to be able to depict the country's political leadership and in almost every case, they are going to need to draw on images of those figures which come to them through other media rather than having direct access..."

"The question, then, boils down to what relationship should exist between the finished work and the source material. And my sense is that Fairey's art was transformative in that it significantly shifted the tone and meaning of the original image. The photograph as taken has nowhere near the power that Fairey's deployment of it had. The photograph was quicklyforgotten amid the flood of such images. And many other photographers captured essentially the same shot. Fairey's poster, on the other hand, is so iconic that it is likely to be reproduced in American History textbooks decades from now. The mythic power comes from what Fairey added to the image -- not from any essential property of the original, which was workmanlike photojournalism."34

The most disturbing ramification of the case against "Hope," should Fairey lose, may be not just its possibly deleterious effect on free culture, but its impact on free speech and civic engagement, the backbones of democracy. If Fairey were less of a punk-steeped radical and were to consider making the Obama poster now, he might not simply license the fee; he might remain silent all together. "I still donʼt regret it, though Iʼm a lot closer to regretting it than I ever thought I would be," he says. "Itʼs such a nightmare that Iʼm going through. Itʼs been really hard on my family."

Not just to punks, rappers, and appropriation artists, but to a large, growing segment of the population that is finding in the frontier world of the Internet a thriving creative environment, Faireyʼs actions make sense. Appropriation is part of how they create and communicate every day. "[Fairey] embodies this new dispersed, grassroots, participatory culture about as well as any contemporary figure," says Jenkins. "The battle between AP and Fairey is an epic struggle between the old media and new-media paradigms, a dramatization of one of the core issues of our times."35

In Free Culture, Lessig argues that the divergence between copyright law and

public practice is turning regular citizens into outlaws, and thus undermining the rule of law. Fairey probably didnʼt exactly mean to launch a grenade into this battleground when he created the most populist, crossover work of his life. But since his entire ouevre was rooted in practices attacking mediacracy, perhaps he couldnʼt help but be a guerrilla.

The "Hope" poster won its first objective: Barack Obama was elected president on Nov. 4, 2008. It made Shepard Fairey a celebrity. And it could just change the way we think about, and litigate, cultural creation.

1 Henry Jenkins, et al., Confronting the Challenges of Participatory Culture: Media Education for the 21st Century, Chicago: MacArthur Foundation, 2006,

2 Jenkins, Convergence Culture: Where Old and New Media Collide, New York: New York University Press, 2006, location 188-192, ebook version.

3 Lawrence Lessig, Free Culture, New York: Penguin, 2005, page 11.

4 This and all subsequent quotes from Fairey that are not footnoted are from an in-person interview conducted by Evelyn McDonnell Nov. 18, 2009.

5 Shepard Fairey, talk given at University of Southern California, Nov. 4, 2009.

6 "Sex Pistols Artwork," SexPistolsOfficial.com.

7 Shepard Fairey, et al, Obey: Supply and Demand: The Art of Shepard Fairey, Berkeley: Gingko Press, 2009.

8

Richard Whittaker, "Artist Cage Match: Fairey vs. Orr," The Austin Chronicle, May 16, 2008.

9 Peter Shapiro, The Rough Guide to Hip-Hop, London: Penguin, 2005, pages 160-61.

10 Fairey et al, page 18.

11 Randy Kennedy, "If the Copy Is an Artwork, Whatʼs the Original?", The New York Times, Dec. 6, 2007.

12 Jason Rubell, phone interview with Evelyn McDonnell, Oct. 28, 2009.

13 Rene Morales, email to Evelyn McDonnell, Nov. 23, 2009.

14 Greg Milner, Perfecting Sound Forever: An Aural History of Recorded Music, New York: Faber and Faber, 2009, page 302.

15 Lessig, pages 129-30.

16 Lessig, page 9.

17 Jenkins et al, page 32.

18 Jenkins et al, page 33.

19 Jessica Litman, Digital Copyright, Amherst, NY: Prometheus, 2006, page 13.

20 Paul Goldstein, Copyrightʼs Highway: From Gutenberg to the Celestial Jukebox, Stanford, Calif.: Stanford University Press, 2003, page 15.

21 Goldstein, page 27.

22 See Nas, Hip-Hop Is Dead, Def Jam Records recording, 2006. Also Sasha Frere-Jones, "Wrapping Up: A Genre Ages Out," The New Yorker, Oct. 26, 2009, and Simon Reynolds, "Notes on the Noughties: When Will Hip-Hop Up and Die?", www.guardian.co.uk, Nov. 26, 2009.

23 Lessig, page 181.

24 Litman, page 14.

25 Fairey et al, page. 273.

26 COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF, SHEPARD FAIREY and OBEY GIANT ART, INC., against THE ASSOCIATED PRESS, page 11.

27 ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS OF DEFENDANT, THE ASSOCIATED PRESS, SHEPARD FAIREY and OBEY GIANT ART, INC., against THE ASSOCIATED PRESS, page 10.

28 Paul Colford, AP Statement on Shepard Fairey Lawsuit, Feb. 9, 2009.

29 Fairey, Nov. 4, 2009.

30 Whittaker.

31 Mark Deuze, "Media Work & Institutional Logics," Deuzeblog, July 18, 2006.

32 "Jasper Johns," Obey website, Dec. 10, 2009, http://obeygiant.com/.

33 Randy Kennedy, "Artist Sues the A.P. Over Obama Image," The New York Times, Feb. 9, 2009.

34 Jenkins, email to Evelyn McDonnell, Nov. 22, 2009.

35 Jenkins, Nov. 22, 2009.

Evelyn McDonnell is doing life backwards: After more than two decades of writing about popular culture and society, she's getting her Master's in arts journalism as an Annenberg Fellow at the University of Southern California. She is the author of three books: Mamarama: A Memoir of Sex, Kids and Rock 'n' Roll; Army of She: Icelandic, Iconoclastic, Irrepressible Bjork; and Rent by Jonathan Larson. She coedited the anthologies Rock She Wrote: Women Write About Rock, Pop and Rap and Stars Don't Stand Still in the Sky: Music and Myth. She has been the editorial director of www.MOLI.com, pop culture writer at The Miami Herald, senior editor at The Village Voice, and associate editor at SF Weekly. Her writing has appeared in numerous publications and anthologies, including Rolling Stone, The New York Times, Spin, Travel & Leisure, Interview, and the LA Times. She codirected the conference Stars Don't Stand Still in the Sky: Music and Myth at the Dia Center for the Arts in New York in 1998. She has won several fellowships and awards. "Nevermind the Bollocks" is part of a larger project Evelyn is researching on artists in the age of content. You can contact Evelyn at evelyn@evelynmcdonnell.com.