Fair Use Debate Around Obama Painting
Friday January 23, 2009
The Obama painting by LA street artist, Shepard Fairey, which was used prominently in Obama's presidential campaign and has now made its way into the National Portrait Gallery in Washington DC, was based on a photo taken by photographer named Mannie Garcia (see Found, Again, the Poster Source Photo).
"... Fairey grabbed a news photograph of the candidate off the Internet... then simplified the lines and geometry, employing a red, white and blue patriotic palette..."Part of street art is, of course, going against the "rules", with worrying about "fair use" issues and "derivatives" (which is what making a painting from a photo is) is not on the agenda. Having a work become an icon does raise the stakes somewhat. Is Fairey a long-term plagiarist (see artist Mark Vallen's article and Just Seeds), is his work transformed enough to be fair use, does the Obama photographer have a case for missing earning (and should he?). Another current case about fair use is the one by French photographer Patrick Cariou against artist Richard Prince for using his "photographic survey of Rastafarian culture for a recent series of paintings." (See The Art Newspaper for details.) The Art Law Blog highlights why this is different from the Blanch v. Koons case, which often gets quoted. Muddy waters indeed, and it's not likely to get clear in a hurry nor any easier to know where the line exactly it. But at least know what the issues are, where you want to stand with regard to copyright violations and derivatives. "I didn't know" won't count for much if you were ever sued; it may be unlikely, but then unlikely things do happen. You only have to look at the odds a year ago of Obama winning the US presidency. See Also: Art Law Blog on the Fairey "Fair Use" Image: "Barack Obama" by Shepard Fairey (2008). Stencil, collage, and acrylic on paper. 60x44 inches.National Portrait Gallery, Washington DC. Gift of the Heather and Tony Podesta Collection in honor of Mary K Podest © Shepard Fairey/ObeyGiant.com |
As far as the law can see, this is definately an unlicensed derivitive; yet most of us cannot assume to speak for the photographer. If I were the photographer, I would be happy to see my photograph morphed to the point of celebratory art to promote the aesthetics of Obama’s candidacy/presidency. This version of a photo has reached many of us who do not have the opportunity to witness “street art”, those of us who do not frequent places that display posters on abandoned buildings, back streets that would never witness such affirmation without said art,…I like this poster. It speaks to a primal force of America that without graphics and illustration, this photo may have gone unnoticed. Thus the law, or many versions of it, should be set aside to illustrate the important aspects of a president with striking colors and graphics, and how these illustrations can speak to any citizen, American or foreign.
Fairey is a blatant plagiarist. He merely takes others photos and adds a socialist propaganda poster style to it…pathetically UNORIGINAL! He is no Latreauc; he doesn’t create posters based off his own sketches and paintings. It’s amazing that anyone so ignorant would think to defend this intellectual thief.
Ryan,
Originality is in the eye of the beholder. Yes, we can extract information and creativity from another artist/author; yet the information involved in a painted derivitive has to be looked at from a distance. This just means that when you are working on a painting, stand back from it every twenty minutes or so to not lose perspective. It’s a known, common rule to use when painting, writing, drawing, etc… or else we lose original thought, and tend to attach a painting to something that may not lend itself to original work. An older, wiser, gentlemen friend of mine gave me an analogy…He is from Chile. A friend of his owns a lodge in Chile that can only be reached by horseback for several miles, unreachable by roads used by cars. In the lodge, there is a journal written consistently by lodgers; each person has an individual interpretation derived by their personal means of getting there, their words are there own, the experience in the lodge and it’s outlying properties, are individual. Everyone has a differnt experience that cannot be altered by another person. What a journal that would be; aside from one that a family would experience in mere ocean vacation-house that doesn’t take the time to…catch their own fish?
I agree with Ryan. It’s still stealing, it’s stealing maybe for a “good” reason, but if it was for another person, there is NO way the national portrait gallery would have allowed that or the photographer even. But because it was for a good cause people turned a blinded eye as with many other cases of infrigement, i’m black by the way, but I think you should call it what it is an be real! Thanks
pomegranite’s point is fair, although he needs to know more about the artist’s experience of creating, it’s usually taken us years without pay to get the perspective to produce the image in the first place. But I take a fair use approach to people stretching my own work, although naturally it’s nice if they acknowledge the source-me:) The Arts Law blog: http://theartlawblog.blogspot.com/2009/01/fairey-use.html put a very good arguement forward that Fairey’s work isn’t really pushing a new interpretation ‘enough’, it’s more about changing the style. There are 4 distinct aspects to ‘fair use’. Could the commentators at least read the Fair Use law before attacking each other please?
I think the artist couldn’t have made his picture without the photo. In my opinion, the image is substantially changed – it is different particularly because the medium is different. Whether it is ‘fair use’ depends on lawyers’ opinion I think – and the laws in their country. Morally I believe the artist owes the photographer a credit at least. Now I would like the photographer to use the painted picture and turn it into a photo! why? to reclaim and to show that photography can be as creative as painting. I believe that the photographer had a ‘fair use’ of Obama’s face, but he/she owes him a credit for being photogenic and pose so well!