Jason J. Crawford

UPDATED:  please note corrections at the bottom.

Graphic artist Shepard Fairey, known as the creator behind the OBEY Giant line of street-propaganda-style pop art, was on The Colbert Report on Thursday night (s.5:e.8; Jan. 15, 2009) to discuss the Barack Obama “HOPE poster” that was a symbol for the progressive youth vote during the Obama candidacy.  It has become so iconic that the National Portrait Gallery has recently added the Obama piece to their collection.

On the show, Fairey discussed how he was not approached nor contracted to create the image for the campaign. It was a work he produced on his own time after meeting publicist Yosi Sergant at a party, who motivated Fairey with the concept to create a work that would capture the Obama movement.  After the work was created, it gained notoriety through a viral circulation after prints were brought to Obama’s campaign stops.  However, Fairey did not reveal that the image for the poster was from a photo out of Reuters by photographer Jim Young. The original photo remained unknown until recently when the source of the photo was discovered by blogger Michael Cramer who posted a comparison with the original on his flickr.

Cramer notes in his blog that it is peculiar the photographer never stepped up to claim the photograph as theirs.  But all of this raises a question about who owns the image.  The fact that Shepard Fairey used the image, without Reuters and Jim Young’s knowledge and created a symbol that unified the youth vote behind Obama would mean it passed through many partys involved.  On one hand it is heavily based on the photo source but the work itself became vectorized and dinstinguished through the labor of Fairey.  Yet on top of that, the poster was seemingly part of the Obama arsenal even before it was officiated and sold by his campaign stores and vendors.

The answer to this puzzle was somewhat answered on The Colbert Report when Fairey proclaimed that the poster belonged to everyone.

He described on the show that the only time he enforced the copyright was the result of people profiting from the poster.  To the viewer, the idea that someone else could be profiting from what is supposedly “everyones” sounds exploitative and that Fairey is carrying out a moral duty by enforcing his copyright.  Displaying a working-class-punk-aesthetic by being entirely decked out in denim with a t-shirt of The Clash, it would appear Fairey literally wears his ideal for populism on his sleeve — or even on the punk-chic buttons on his jacket.

Unfortunately, any cases of him enforcing the copyright cannot be found but on his website he does go after people for selling the limited edition print on eBay:

… we decided to basically give away OBAMA posters to people all over the country to help bring awareness. It looks like we were naive in believing that people would be true and do what they actually said they would do. All those that received these street pasters knew that they were not to be auctioned on EBAY or sold anywhere else. Its extremely discouraging when we intentionally make Shep’s art obtainable and affordable for all and in turn are exploited and taken advantage of by GREEDY people. We put 100% of the poster proceeds back into the Obama campaign.

….

We are still actively checking EBAY for auctions and taking aggressive action against those that continue to take advantage. We stand by what we believe and say and are proud of our mission to keep OBEY accessible to all.

I find these statements to be contradictory.  They want the image to be accessible to all but frown on people selling what is a print of limited run that they have run out of.  Because of the political significance and the already established fan base of OBEY, the print would obviously become a sought after property, particularly due to being a limited run — which much of the OBEY prints are.  I would also suspect a number of counterfeits have also been printed to deal with the limited run, which raises a question about the “greedy vultures” on eBay which Fairey berates: is the demand for the poster not the same?  Supporters want the poster in the sense that it is both a keep-sake of an historic campaign, as well as be able to display the poster in support of their candidate.  Given the cost of many official posters as being expensive donations to the Obama campaign, I would imagine others would want to purchase bulk or extra amounts of the poster without the high costs of having to do multiple donations for the posters.

By having the work copyrighted and sitting on a rather ambiguous position, it is hard to tell what Fairey’s view to these matters would be.  The legal ball is entirely in Fairey’s court despite mixed signals that the poster belongs to everyone.  Would Fairey ever go after parody of his work?

Like the president-elect, Fairey carries a marketable form of brand-politic and in an era where the image of ones marketability is almost sacrosanct, the necessity to control one’s image is crucial to maintaining the stability of that brand.  It is for that reason that I could see Fairey enforcing his copyright of the graphic, thinking it best to control the integrity of the image.  Fairey has gone after people in the past for making alterations to his work and rebranding it as their own.  One example is artist Baxter Orr.  Fairey threatened to sue Orr over reworking the OBEY Giant piece that is a cornerstone to his brand’s image.  Orr coincidentally has also parodied Fairey’s Obama poster as noted at Animal New York:

The Orr image references Obama’s personal confession two years ago when he opened up to having used cocaine in the past.  Since then Obama has been charged (by conspiracy theorists) that he suffers from mental impairment from his cocaine use.  Other attacks have included the confession of Larry Sinclair that he used cocaine with Obama and engaged in sexual acts with the President in his limo.  While these attacks on Obama hold no weight, they have contributed to many online factoids to forums where they are reiterated against Obama.  But could other attacks be launched through use of the image?  I would say of course.  Especially with the online Obamacon image generator which takes uploaded pictures and turns them into a style similar to the poster with text of the user’s choosing.  Others at websites such as image-forum 4chan have taken the hope poster with Obama and put text underneath such as “do niggers have x-ray vision?” “sup /b/” and “affirmative action” to lampoon the message and symbolism of the image.  Fairey is within his power to go after any of these images, possibly even demanding to have the Obamacon site shutdown.

It could even be hypothesized that Fairey is within his power to enforce the copyright against those who are political contenders against Obama.  For example, say in a hypothetical situation that political opposition by McCain’s campaign were to ignore the copyright (as they have with many songs in campaign videos) on Faireys image and campaigned with an image that criticized Obama.  Would Fairey go after them with a cease and desist?  Legally he would be within his power to do so, much like Jackson Browne was able to do after the campaign for using “Running on Empty” without his permission that ended up being used in a video that attacked Obama’s energy policy.  As earlier noted, the campaigns are very image based.  Part of Sarah Palin’s demise was Tina Fey lampooning her style on SNL.  One example of the Fairey poster being used against Obama and seen at early campaigns for McCain was the snob poster that came about at a period in the campaign where Obama was being attacked for his tax policy; argued by conservatives that he was a socialist snob planning to increase taxes.  The snob poster was circulated by Michelle Malkin’s readership.

If Fairey believes the image is for everyone then he should release it under a copyleft license such as the Creative Commons licensing to allow for to remix, share and distribute the poster.  Leaving it up to ambiguity in saying the image is for everyone is a confusing stance to take, particularly when you still contain an authoritative leg by being the copyright holder.

UPDATE!! – 1/23/09

So it appears there is another source that was used by Shepard Fairey.  On his site, photojournalist Mannie Garcia has wrote the following:

The Danziger Gallery which represents the artistic works of Mr. Fairey contacted me on the 21st of January 2009 to inform me that my photograph was in fact the basis for the artwork that has become better know now as the “HOPE”  and “PROGRESS” posters

Here are links about Mannie Garcia being the source of the photo.

• Historical footnote: The origin of ‘Hope’
• Famous Obama ‘Hope’ Image Stolen?
• Found – AGAIN – the Poster Source Photo

by stevesimula

My apology to Mr. Garcia for the confusion.

LATEST NEWS:

• AP alleges copyright infringment of Obama image.

The image, Fairey has acknowledged, is based on an Associated Press photograph, taken in April 2006 by Manny Garcia on assignment for the AP at the National Press Club in Washington.

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

“The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,” the AP’s director of media relations, Paul Colford, said in a statement.

“AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey’s attorney and are in discussions. We hope for an amicable solution.”

. . .

A longtime rebel with a history of breaking rules, Fairey has said he found the photograph using Google Images. He released the image on his Web site shortly after he created it, in early 2008, and made thousands of posters for the street.

As it caught on, supporters began downloading the image and distributing it at campaign events, while blogs and other Internet sites picked it up. Fairey has said that he did not receive any of the money raised.

A former Obama campaign official said they were well aware of the image based on the picture taken by Garcia, a temporary hire no longer with the AP, but never licensed it or used it officially. The Obama official asked not to be identified because no one was authorized anymore to speak on behalf of the campaign.

The saga continues on. At this point I must side with Fairey’s likely defense.  “We believe fair use protects Shepard’s right to do what he did here,” says Fairey’s attorney, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. “It wouldn’t be appropriate to comment beyond that at this time because we are in discussions about this with the AP.”  But just as much, I believe fair use should extend to any parody of the image.  Both Shepard Fairey and Mannie Garcia (or AP parties involved) should relicense their works under something that allows this image to fall into an area of being accessible and remixable by everyone.  It is a cultural property that should belong to everyone and because of that shouldn’t be maintained by any copyright.