Wednesday, February 11, 2009

Shepard Fairey: Plagiarism Or Art?

I would think many artists use photo or other types of reference at some time or another. It's pretty standard.

But what happens when you have a case like Shepard Fairey's Obama poster -- where not only was extensive referencing of an Associated Press photo used, but the poster itself becomes an international phenomenon?

Is it plagiarism or art? Is it fair use? Did Fairey "transform" the image enough to the point where it has become a separate entity? If he makes money off the image, does the original AP photographer deserve a cut, as well?

Here's another example. The following work is from edgy street artist Rupert Endive:

"Super Heavy Sex Machine No. 9/CRAZE" by Rupert Endive, 2003.
Photograph and Sharpie.

Endive's main "hook" is to put graffiti tags and other sorts of defacement on posters, magazine advertisements, and newspaper headlines. When Endive sells his work, does he owe a cut to the original producers of the material he has "defaced"? Or, because he has added his own ideas to the material -- thus rendering them ironic -- has he created a whole new work of art, beholden to nobody?

And what if instead of an edgy street artist, Endive was just some schmuck with a stack of papers looking to make a buck? How much of this is context? Does being a successful and renowned artist make you more likely to get a free pass on this copyright thing?

And look, I have no definitive opinion either way, other than the fact that I am Rupert Endive's exclusive agent and representative. I'm just throwing questions out there.


  1. I'm conflicted here, and it's all Roy Lichtenstein's fault. I am of the opinion that he was a thieving bastard who made millions off of work that Novick, Tuska, Heath, et al. made for peanuts. But he did it with the view that comics were a strictly commercial entity with no redeeming artistic value of their own, and was making a commentary on consumer society. Likewise, I look upon the AP photo and the Lancome advert in the same way. Will time prove me wrong?

    (Although, IMHO, I do feel that Fairey's Obama poster altered the photo enough-- even putting the new coloring aside, the Obama in the poster seems to be sitting straighter, his head is angled lower, and his eyes are more, well, hopeful. He took the AP image and imbued it with more meaning than it had originally.)

  2. Not a lawyer, but I think it's pretty clearly transformative enough. For one thing, have you seen all the imitations out there? It's not the photo that people try to imitate, it's the graphic design. (For a non political one, there's DOOM I'm actually kind of surprised we're not hearing more wank about whether it's "Art" or "just graphic design," but I guess that's not where the money is.

    When it comes to examples of defacing or changing iconic images, I can't let this comment pass without referencing L.H.O.O.Q., which probably started it all to begin with. ;)

    On a more serious note, this is a pretty good example of how restrictive to artists draconian interpretation of copyright can be. Shepard Fairey obviously hasn't been one to worry about working on the edge of legality (OBEY!), but what about artists who aren't as willing to take legal risks?

  3. Huh. I just read a couple more articles on this, and apparently the AP doesn't even have the rights to the photo. The photographer says he wasn't on AP staff at the time he took the photo, and he never signed a freelancer agreement. The photographer doesn't have a problem with Fairey's use.

  4. I thought you were staying away from controversy! [emoticon]

    First, let's separate Plagiarism from Copyright Violation. You can plagiarize work that isn't copyrighted (every film version of Romeo and Juliet). You can plagiarize work without violating it's copyright. broke the US Attorney scandal, but the NY Times didn't credit their reporting.

    By legal definitions, I think it's pretty clear Shepard was within Fair Use standards. The work is very different (the original photographer didn't recognize his photo as the source, and AP says they used software to pick out which of thousands of Obama photos shot daily was used). So it's transformative. And he never accepted payment for it, so it's not commercial.

    Here are two articles on copyright:

    Here's a legal analysis:

    In fact, Fairey's so secure he is suing AP for making a false claim of copyright. In fact, the original photographer says his contract with the AP proves he owns copyright, and he's quite pleased with the poster:

    If AP knowingly made a false claim, they could also face criminal penalties.

    Enough with the law, did Shepard Fairey plagiarize? Of course he did, though not egregiously. But once again, the owner of the original work is cool with it.

  5. "I thought you were staying away from controversy!"

    It's not me, it's Rupert Endive. He's a rabblerouser.

  6. I mean, if the original photographer doesn't have a problem, and the AP doesn't have a legal ownership of the photo via contract, etc, then I would think there isn't much of a problem.

    But what about a case like that old Doctor Strange cover that had Amy Grant on it?

  7. Or what if the photographer had totally different views from Obama and was horrified that his photo was used in that way? Would he have a case to get it pulled?

  8. Gene Ha,

    I don't think it is even plagiarism. Fairey never claimed the photograph was his, and people generally don't expect graphic designers to drum posters up out of the ether. I think the criticism of his design as derivative of old Communist propaganda posters is more valid. And, that's an artistic critique not a moral one. Would you say that using magazine photographs in a collage is plagiarism?

    . . .Would he have a case to get it pulled?
    He'd probably have about as much right as Ray Bradbury had to get Fahrenheit 9/11 pulled for riffing on his famous book title. Bradbury was pretty pissed off at Michael Moore, but he couldn't get the movie title changed.

  9. Not only do I think it's fair use, I think that the AP is acting like idiotic corporate overlords by suing someone who never SOLD the thing.

    I mean, Shepard Fairy didn't sell that image. He didn't get paid by the DNC, the Committee to Elect Barack Obama or the T-shirt guy on the corner. They're suing him because he designed something, gave it to someone else, and other people put it on merchandise that they sold.

    It's like Campaign for Nuclear Disarmament suing Gerald Holtom because other people put the peace sign (the CND's symbol) on T-shirts (how's that for an obscure reference).

    Honestly, I don't see what the AP gets from this, aside from bad press.

  10. Bah I hate this crap! I mean I draw (mostly badly) and I use reference material all the time!

    I love to use "hot" comic blogger chicks photos fer my inspiration!

    Errr did I type that out loud???


  11. I found this story interesting when I first read it, because I always just figured AP images were public domain.

    As far as Endive, isn't his work sort of like a comedian who's protected under fair use parody laws? He clearly doesn't seem to be trying to make money off the advertisement itself, but rather, like you said, create ironic imagery. Has he gotten heat for it?

  12. how can people already be doing Google searches for Rupert Endive?

    Don't they know he's not computer literate?

  13. The Amy Grant cover was a matter of "Right of Publicity." Amy Grant controls the commercial use of her likeness. This can be contracted out (eg Tiger Woods and Buick) and has limits for folks like politicians or other public figures.

    Doesn't directly apply here, as Obama is obviously cool with Fairey too. Obama may not be cool with people making unlicensed Obama watches, plates, tees, etc, but as both a celebrity and politician he's lost some legal control.

  14. It's not's just REMIXING!

  15. On a semi-related note, I had the perverse pleasure yesterday of seeing a Japanese comedian with a passing resemblance to Barack Obama shilling tour packages to Hawaii in a TV commercial yesterday. He was wearing an Obama-style suit, said, "My name is Barack Obama and my hometown is Hawaii."

    Then they showed a lot of touristy shots, and the comedian came back and said, "Yes we can! Thank you!"

    I think he's the same comedian who, during the election season, was portraying Obama and going around asking random people for things like rides to train stations. And if they agreed, he'd turn to the camera and say, "YES WE CAN!" I read about that on the J-List blog and really wanted to see him in action.

    Of course no one really thinks he's Obama and his impression was along the lines of Tina Fey's Sarah Palin version (which I much preferred to the actual person, by the way), or any of those various American comedians who used to make a living mocking presidents back in the 1960's... so...

    Parody? Commercial misappropriation? Totally silly?

  16. I think that he the artist changed it enough for it to be a separate image.
    But I have to ask how is what this artist did with Obama's image any different from what Andy Warhol did with Elvis,and Marilyn Monroe?

  17. If you follow the AP's logic, then no artist can ever do a drawing of any famous person, ever, unless the artist has the chance to book a personal session with said celebrity so they can shoot only their own reference.

    Now, Fairey has used other people's artwork at times in his own posters, which I think crosses the line--but in this case, the AP is just looking to squeeze a few bucks out of the guy.

    That said, as an artist who did his own Obama posters, I'm jealous as hell.

  18. Oooh, this is a toughie, Val. I want to say it's transformative enough, but then I kind of turn my head and think of our old pal Greg Land...

  19. Is Rupert Endive supposed to mean something?

  20. Colbert had an interesting interview about copyright.

  21. Anonymous3:11 PM

    Anyone who doesn't think this scam artist is stealing from other artists needs to read the article below. It outlines in great detail (and photos) no fewer than 14 instances of plagerism by Fairey. Not including the Obama poster. It's pretty shocking that this guy still has any legitimate standing in the art world.

  22. Anonymous5:23 PM

    The problem that Fairey faces is the fact that he turned this photo into what he considers is 'his artwork'... So now he's taken any opportunity from the actual photographer to be able to create the same kind of artwork to sell. So if the photographer now wants his photo to become a poster but in an art sense, would people buy it over the Fairey version? Probably not because Fairey has taken the photographer's ability to do that. It's plagiarism no matter how much anyone thinks Fairey changed the photo (reds, blues, Hope or not).

  23. I was just having this discussion with a few mothers visiting my log after I posted about my sons gorgeous Superman PTA Reflections entry along side the image that inspired his picture (by arist unknown). I really didn't think it was plagiarism at the time otherwise I wouldnt have encouraged him in that direction nor would it have been entered in the competition. Am I really just blonde?
    Here is the link to my post - which I loved posting about and now are sad about :( wah!