Notes on Fair Use with Reference to the Case of Shepard Fairey and the Obama Hope Poster

Shepard Fairey: Portrait of Barack Obama / Hope Poster (2008)

Based on the photograph by Mannie Garcia / Associated Press (2006)

 

 

I. Fair Use

 

I am not an American, but I sometimes wish I were. For I admire many aspects of American culture and society, including the legal concept of fair use which permits (limited) use of copyrighted material without having to acquire permission from the copyright holder [1]. 

 

For whilst the interests of the latter should, I suppose, be taken into account, it's vital to balance such with the right of artists, for example, to creatively transform images and recontextualise ideas. Great artists, as Picasso said, have always stolen and made acquired objects uniquely their own (never borrowed or asked for permission) [2]. 

 

 

II. The Case of Shepard Fairey and His Obama Hope Portrait

 

Everyone knows the instantly iconic Barack Obama Hope poster produced by the American graphic artist Shepard Fairey, during the 2008 presidential campaign. But what I didn't know - until I watched the James Moll documentary Obey Giant (2017) on TV a few nights ago - was just how much trouble the work had caused him ...

 

For although the image - widely distributed as a poster, as well as in various other formats - was produced with the approval of the Obama campaign team, Fairey had not sought permission of the photographer Mannie Garcia who snapped the picture the work was based upon for the Associated Press (AP) [3]. 

 

Fairey had simply searched Google Images and taken what he thought best suited his needs, believing his actions to be legitimate under the fair use policy. However, when in January 2009 the original source photo was identified, the AP demanded compensation. And so began a legal nightmare, lasting several years.

 

It was Garcia's contention that he retained copyright to the photo according to his AP contract. And whilst he admired what Fairey had done with his photograph, he didn't 'condone people taking things, just because they can, off the internet'. 

    

Fairey, meanwhile, sought a declaratory judgement that his behavior qualified as fair use and argued that his conduct did not constitute improper appropriation because he had not taken any protected expression from Garcia's photo. 

 

However, after a judge urged a settlement, the two parties came to an out of court agreement (including undisclosed financial terms) in January 2011. Whilst neither party was obliged to surrender its interpretation of the law, in their press release the AP made it pretty clear who they thought had come out on top (and it wasn't the artist) [4].

 

For his part, Fairey maintained that he had never personally profited from sales of the image - a claim disputed by the AP - and put on record that whilst he continued to defend the right of artists to make fair use of photographic images, he respected the work of photographers such as Mannie Garcia.

 

 

III. 

 

My view is this: a photograph - no matter how skilled the photographer - is ultimately a mechanically produced image; whereas an artwork is a magically created image that transforms reality. That's why even the greatest modern photos pale into insignificance alongside paleolithic cave paintings in Lascaux, for example.  

 

And so, with all due respect to Mannie Garcia, his photograph - as technically excellent as it is - would have been long forgotten about by now - just one lonely thumbnail amongst hundreds of thousands of other Obama pics that can be found online - were it not for what Fairey did with it [5]. 

 

In short: Fairey transformed a good photograph into a great work of art; one that will live in the cultural imagination for a very long time. That's why a version of the work is now in the permanent collection of the National Portrait Gallery in Washington, alongside other famous portraits of presidents - and why Garcia's photograph isn't [6].

 

To be honest, I wish Fairey had not settled and had, instead, fought the case. For I think he had strong and valid fair use argument and that his heavily stylised image, bearing the hallmarks of his distinctive aesthetic, clearly transforms Garcia's photograph in such a way that it is no longer strictly speaking an accurate representation of Obama - something that the AP lawyers seemed blind to.    

 

The same AP lawyers who spoke of arrogance on the part of artists who cheerfully exploit the work of hardworking photograpers without permission or even a word of thanks, before then dismissing Fairey's Obama poster as little more than a form of digital paint by numbers.     

 

Which is a mildly funny, if outrageously stupid thing to say.  

 

Notes

 

[1] In the UK, we have a similar legal notion termed fair dealing. But fair dealing is more limited in scope than the US doctrine of fair use and the two ideas, if comparable, are certainly not synonymous; many exceptions to copyright in the US would be an infringement under UK law. 

      In determining whether the use made of a work in any particular case is fair, several factors are considered. These include: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work. 

      Finally, another key consideration in many fair use cases - including the one to be discussed here - is the extent to which the use is transformative. It is important to understand that facts and ideas are not protected by copyright - only their particular expression.  

      

[2] The irony, of course, is that Picasso probably heard this line elsewhere and is just paraphrasing. 

      (It sounds like the sort of thing Wilde might have said, but the Little Greek is keen to remind me of these lines by Eliot in an essay on Philip Massinger in The Sacred Wood (1920), p. 114: "Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.")

     

[3] Garcia took the (now famous) photograph - along with 250 other shots - on 27 April, 2006, at a media event held at the National Press Club in Washington, D. C., where the actor George Clooney was raising awareness of the war in Darfur, following a trip to Sudan. Clooney was joined by two United States senators; Sam Brownback and Barack Obama. 

     Whilst most of Garcia's photos taken that day were of Clooney (or featured Clooney and one or both of the senators), thirty-nine were just of the charismatic future President.  

      In taking these photos, Garcia obviously made creative choices; just as, afterwards, he reviewed them and made certain editorial decisions before finally submitting a small selection of pictures to the Associated Press. But they still remained press pics, not works of art. 

 

[4] In a press release, the AP announced: 

      "Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the 'Hope' image and share the rights to make the posters and merchandise bearing the 'Hope' image and to collaborate on a series of images that Fairey will create based on AP photographs."

 

[5] Garcia's Obama photograph was published at least once by an AP member newspaper, but, it certainly didn't enter into the cultural imagination or win a Pulitzer Prize. 

      Again, let me be clear: I'm not trying to denigrate the work of photographers. I'm simply saying that, in this case, Fairey magically transforms a factual piece of photojournalism into something fundamentally different; by removing certain elements and adding others, he projects a realistic image into the mythic realm. The genius lies in the many small changes, just as the devil lies in the details. 

      (Having said that, I'm not particularly keen on Fairey's poster which is too much also a piece of blatant political propaganda.)   

 

[6] A fine art version of the poster made by Fairey was acquired in early 2009 by the National Portrait Gallery (part of the Smithsonian Institution) and housed in its permanent collection, alongside portraits of George Washington by Gilbert Stuart, and Richard M. Nixon by Norman Rockwell. 

 

Readers interested in the full facts of the case involving Shepard Fairey should see: William W. Fisher III, Frank Cost, Shepard Fairey, Meir Feder, Edwin Fountain, Geoffrey Stewart, and Marita Sturken, 'Reflections on the Hope Poster Case', Harvard Journal of Law and Technology,  Vol. 25, No. 2, (Spring 2012), pp. 243-338. This detailed text also provides an excellent analysis and many illustrations. Click here for an online pdf. 

To watch the trailer to Obey Giant: The Art and Dissent of Shepard Fairey, (dir. James Moll, 2017), click here.

 

For a follow up post to this one in which I discuss my problems with Fairey's Obama portrait, click here.