Shepard Fairey vs. AP: The Plot Thickens
I was intrigued by a position the Associated Press took yesterday when it filed new court papers in its countersuit against Shepard Fairey over his unauthorized use of an AP photo as the basis for his Obama "Hope" poster. Basically, they said: "You lie — some more".
To recap: A few days ago Fairey acknowledged that he had lied about just which AP photo he used. Actually, what he said was that at first he genuinely believed it was a picture of Obama with George Clooney from which he had cropped out Clooney, but he later realized that he had used a different picture from the same event, a close up of Obama alone, a shot the AP suspected all along he had used.
At the time I found my self wondering how it was possible that Fairey didn't remember which photo he had used for a poster he made only last year. The AP apparently had the same question. In an amendment to its countersuit filed yesterday with a New York court, the AP said "it is simply not credible that Fairey somehow forgot in January 2009 which source image he used".
Which leads to another question. By claiming to have forgotten at first which photo he had worked from, did Fairey undercut his case in his own suit against AP? Fairey argues that he transformed the original image sufficiently to qualify for fair use protection from any copyright claims by AP. But if the transformative process didn't leave enough of an impression on him for him to recall what picture he was working from, how transformative could it be? How long did it actually take? A few minutes? A few days? Surely if you work with a photo for a few days you remember it. But if the changes you made to the image only took a few easily forgotten minutes, or even an hour, then does that really qualify as a transformation?
These are certainly questions that would come up in a case like this. And Fairey now seems to have committed himself to a version of events that could be taken to suggest he didn't spend much time on the poster.
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1
As an artist and illustrator who uses photos as reference all the time for commissioned illustrations, portraits and caricatures, I can tell you that the photo is not what I see when I work--I see the work I want to create, and that is what I remember. Especially if I have a pile of photos, I can flip through them the day after I finish and not remember exactly which one I used, because I rarely use only one. I can also say that when I attended college in the late 70s and we learned the ropes of design and illustration, news photos were permissible as source material for derivative works, especially because those derivative works were in an entirely different medium, and most people would have no idea what the source image might have been.
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2
The question of artist's time in creating art seems to have some legal origins in the case of Ruskin v. Whistler where the critic accused the artist of having "thrown a pot of paint in the public's face." following transcript is from Wikipedia:
Holker: "What is the subject of Nocturne in Black and Gold: The Falling Rocket?"
Whistler: "It is a night piece and represents the fireworks at Cremorne Gardens."
Holker: "Not a view of Cremorne?"
Whistler: "If it were A View of Cremorne it would certainly bring about nothing but disappointment on the part of the beholders. It is an artistic arrangement. That is why I call it a nocturne...."
Holker: "Did it take you much time to paint the Nocturne in Black and Gold? How soon did you knock it off?"
Whistler: "Oh, I 'knock one off' possibly in a couple of days - one day to do the work and another to finish it..." [the painting measures 24 3/4 x 18 3/8 inches]
Holker: "The labour of two days is that for which you ask two hundred guineas?"
Whistler: "No, I ask it for the knowledge I have gained in the work of a lifetime." -
3
Should the AP win on this issue, no artist will ever feel free to use any image as an aid to production in any way whatsoever! The AP's argument is entirely specious. See my current entry on "The Art of John Bittinger Klomp" for more.
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4
[...] destroyed evidence to cover-up and perpetuate his misdeed. The response? The Associated Press has filed new papers in its court case against Fairey, adding “purposeful deceit” to its initial copyright claim.What could be the consequence of [...]
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[...] way back in 1984 – of his “borrowing” someone else’s artwork. Thanks to http://lookingaround.blogs.time.com/2009/10/21/shepard-fairey-vs-ap-the-plot-thickens/ and also to [...]
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[...] nationally known for his iconic “Hope” campaign image of Barack Obama and its resulting legal battle. Fairey emerged in the late 80s with his “Andre the Giant Has a Posse” street art [...]
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