By Andrea Fiona Pagliai
Inauguration day, 2009. Mannie Garcia, a freelance photojournalist, is on the nation’s Capitol, hoping to capture an iconic image of President Barack Obama. He fails to realize he already has.
That day, Jan. 20, Garcia received an e-mail from Tom Gralish, an award-winning photojournalist from The Philadelphia Inquirer, informing him that guerrilla street artist Shepard Fairey’s “Hope Poster,” was derived from a photograph Garcia took as a temp-hire for The Associated Press in April 2006.
The original photo showed Obama and actor George Clooney at the National Press Club in Washington, D.C. Fairey said he took the photo from Google Images and used it to create what became the iconic image of Obama’s presidential campaign. The poster shows a stylized stencil portrait of Obama in colors red, white, and blue with “HOPE” emblazoned underneath the image. The image became one of the most recognized images of the 2008 Obama presidential campaign.
Fairey distributed posters, stickers, and pins of the image in a grass-roots style during the election campaign. Neither Garcia, nor the AP- who both claim ownership of the image- were ever asked for permission, paid royalties, or credited by Fairey for the use of their image.
Artists have long borrowed art from others, repurposing them to create images. They say it’s about skewing views to force the public to think differently about issues. Andy Warhol did it; so did Keith Herring. But now Fairey finds himself embroiled in a controversy over whether he violated copyright law.
According to a New York Times article by Randy Kennedy, the AP contacted Fairey’s studio to obtain monetary compensation for the commercial gain made in the distribution of the Hope image. In response, Fairey filed a lawsuit asking a federal judge for protection against copyright infringement. The AP countersued. The cases are making their way to federal court, but specialists believe there will be a settlement.
In an age when technologies are evolving the way we find and share information, the importance of properly attributing borrowed works, an essential element in the fair and democratic exchange of ideas, is no longer an automatic act among younger generations.
Zeshan Arif Malik, an artist and special projects director at a Manhattan guerrilla ad agency, contends that Fairey’s work is transformative enough to merit its own copyright. Malik says, “the image was much more powerful after Fairey did what he did. It changed the idea and meaning completely and is a distinct image (from Garcia’s).”
Garcia contends, “From my perspective, putting all the legal things away, I am extremely proud. (The image) helped elect the first black president. How cool is that?” But he added, “just because it is on the Internet, doesn’t mean it’s free. You can’t just take it.”
Paul Arbor, president and CEO of Images.com, one of the largest visual providers in the U.S. explains, “the reality is that intellectual property is one of the most heavily stolen commodities in this country.” Arbor does not believe Fairey can use a fair-use defense. He believes Fairey should have sought a licensing agreement and gone from there.
Photojournalist and graphic designer Alan Nahigian and his friend Helen Chang, who is a fan of Fairey’s work, were both at a New York Public Library Live panel discussion, waiting to hear Fairey and lawyer Lawrence Lessig speak about the controversial Hope image. Both admire the Hope image, but Nahigian still says, “I mean (Fairey) put his own style into it,” but he also maintains that Fairey would have never come up with the Hope poster if he hadn’t seen the AP/ Garcia image beforehand.
Today, billions of people have access daily to a wide assortment of artistic content through the Internet that is extremely difficult to regulate. “This issue is no different than a book report,” Arbor adds. “Kids had to credit their work then, and they have to credit it now. Nothing has changed.” Arbor worries that Fairey’s actions will negatively influence the younger generations, by telling them they can get away without attributing their sources of information.
“The word fair-use confuses people,” says Los Angeles based intellectual property lawyer, Robert Dickerson, who has 30 years experience with copyright law. Dickerson notes that when people hear “fair-use,” many react in favor of the artists, thinking that the corporation is out to suppress their creativity. “Fair-use is a legal matter linked not to the morality, but to the legality of the case,” he says.
Dickerson notes how the subject matter complicates the case, “when in fact, this is not a new issue.” He says, “the only thing that makes (this case) at all different than your general fair-use case is Obama. (The case) got headlines for the subject matter, not the legal issues.”
With new technology comes new issues,” Dickerson says, but in his opinion a change of laws need not apply in the case of Fairey vs. the AP where Dickerson believes Fairey couldn’t have made the poster without Garcia’s image. “What Fairey did was illegal and I think he is a copyright infringer. What he has done is a derivative work and he has marketed it aggressively.” Dickerson doesn’t believe the case will make it to court, but adds, “if I’m on the jury, Fairey loses.”