I have a growing fascination with the Shepard Fairey copyright case. Part of what makes it so fascinating is that, unlike a lot of copyright cases where a close look at existing law and precedent makes it pretty clear who is likely to win, this one is a crap shoot to my mind. Cases like this one, and the recent Harry Potter Copyright Trial of Doom, illustrate a trend in the U.S. federal courts to apply nuanced reasoning about what fair use really means and what it truly means to “transform” a work into something new that does not depend on the original. I don’t think that Fairey will win on his declaratory judgement action. There are too many questions of law and fact at stake and I suspect that it will require a full trial (provided that it doesn’t settle first). At full trial, though, I think he has a decent chance. Then again, so – potentially – does AP. I suspect, though, that it would tip in his favor, since while his image is clearly derivative, it does not represent a market that AP was likely to exploit, nor does it supersede the value of the original image. OTOH, he copied it. AP has made it’s basic case. Whether Fairey’s Stanford legal team can establish the fair use defense will be the real issue. It’s a decent case, but not a slam dunk. Fair use is a defense that applies only after the case for potential copyright infringement has been proven, after all.
In the meantime, how about that Shepard Fairey. The more I learn about him as an artist, the more I sort of dislike him. But, boy, is there a lot of interesting stuff there to think about it. There are three different angles to look at this art through – legal, art criticism and social justice, all of which can lead to far reaching conclusions.
From a legal perspective, my feelings are mixed – on the one hand, probably 30-40% of the art referenced in that first link is in the public domain and is therefore fair game for any sort of use. OTOH, a lot of it isn’t. So we’re back to fair use and whether the use that he’s making really transforms anything, particularly the work that largely shifts perspective on works that were overtly political to begin with and whether his works act as substitutes or damage the market for the original works.
Then there is art criticism - and certainly reasonable people will differ on he question of is this art, although I certainly think it is. I’m not sure how to categorize it, though. My first thought is to forget the comparisons to Warhol and Lichtenstein – they copied iconic images, for sure – iconic images that were easily recognizable from their source. And they transformed them into something else. Warhol turned household goods into art objects (and did settle a lawsuit with Campbell’s for his trouble). Lichtenstein took comic images from the 2×2 inch paper booklet and put them on walls. Obama poster aside (which is somewhat like Warhol’s famous figure works), Fairey takes other people’s propaganda and turns it into…propaganda.
This recasting of propaganda art from the 60s and 70s is the most problematic part of the work that I’ve seen. Fairey borrows heavily from works made by people of color to publicize and fight their oppression and commodifies them into something easily consumable by an audience comprised primarily of white hipsters, while simultaneously marketing some of the actual emblems of their oppression right along side. This is the real insidiousness of this work. It is an exercise of enormous privilege for a white person to appropriate images by and of people of color for “art”, no matter how politicized and “in tune” with the original message.