The 2008 election of Barack Obama to the presidency of the United States of America inspired people across the globe. It was billed as the election of “hope” and “change.”

Artist Shepard Fairey was inspired by the man and the message, so much so that he created a piece of art that represented the hope that he felt for Obama’s America. Now that the afterglow of victory has subsided and America is staring a depression in the face, hope is more difficult to come by. In fact, it is hope that has exposed Fairey to a lawsuit. Will a cash advance cover the perceived damages?

The AP claims he stole the image from a photograph

Erik Larson reports for Bloomberg that Fairey has “been sued by the Associated Press over claims the stylized portrait copied a 2006 AP photograph.”

Here’s the AP’s complaint:

Fairey’s willful pattern and practice is to repeatedly copy the works of other artists and photographers. While plaintiffs have attempted to cloak their actions in the guise of politics and art, there is no doubt that they are profiting handsomely from their misappropriation.

Call them the Associated Killjoys

Fairey saw this coming, however. His company (Obey Giant Art, Inc.) filed a preemptive lawsuit that made the claim that the photograph was used “as a visual reference for a highly transformative purpose.”

In their counterclaim, the AP pointed to Fairey’s “willful disregard” for property rights that has led to numerous graffiti, vandalism and related arrests.

Question authority

You know Shepard Fairey from this ubiquitous sticker than finds its way onto street signs and other public surfaces

Fairey is a public artist along the lines of Christo, as I see it. His emblems take on more of an urban edge and are artistically provocative. The underlying message in his work – that we should question authority and be aware of the propaganda that is thrown our way every minute of every day – is particularly useful in this age of total media saturation. His work has appeared in the Smithsonian and the Institute for Contemporary Art in Boston, as well as on a street sign or corner near you.

The AP objects to Fairey not having retained permission to use the original photo (and his not giving credit to the original photographer). However, is Fairey’s work the original photo, or inspired by that photo and his own imagination? I would side with the latter, but black and white corporate/legal thinking may not agree. Fairey claims his work is protected by the Fair Use statute, which “allows for limited use of copyrighted material to make original works of art,” writes Larson.

“Protecting” Content

Fairey’s lawsuit filed in February seeks a court order that the image, created in January 2008, doesn’t violate AP’s copyright. According to his complaint, Fairey’s work is protected by the Fair Use statute, which allows limited use of copyrighted material to make original works of art.

I find it ironic that the Associated Press wishes to press this issue. A beacon of world journalism – of free speech rights – is looking to curb an artist’s right to express his view of the world. The Associated Press is proving that they belong in the great reservoir of mass media Fairey criticizes… along with all the seagulls and garbage.

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